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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


VICTORIA DIAMOND LOVE,
                                                      Court of Appeals No. A-11949
                            Appellant,               Trial Court No. 3AN-13-2222 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                 No. 2626 — November 30, 2018


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Michael R. Spaan, Judge.

              Appearances: Paul E. Malin, under contract with the Public
              Defender Agency, and Quinlan Steiner, Public Defender,
              Anchorage, for the Appellant. Saritha R. Anjilvel, Assistant
              District Attorney, Anchorage, and Craig W. Richards, Attorney
              General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.


              Victoria Diamond Love assaulted three persons in another apartment in the
complex where she lived. Following a jury trial, Love was convicted of second-, third-,


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
and fourth-degree assault 1 for slicing the fingers of one of her victims with a knife, for
brandishing the knife in a threatening manner, and for putting another of her victims in
fear of imminent physical injury.
              The pre-sentence report in Love’s case included two pages of recommended
conditions of probation. Love’s attorney did not object to any of these proposed
probation conditions. In fact, the only time the defense attorney mentioned the proposed
conditions of probation was when the attorney told the judge that Love did not object to
a probation condition prohibiting her from returning to the apartment building.
              When the judge imposed Love’s sentence, he did not specifically mention
all of these proposed probation conditions. Instead, the judge mentioned only a few of
the special conditions of probation listed in the pre-sentence report. But later, when the
judge issued the written judgement in Love’s case, this judgement included all of the
conditions of probation proposed in the pre-sentence report.
              In this appeal, Love challenges four of the special conditions of probation
that the judge did not explicitly mention when he imposed Love’s sentence. Love
contends that the inclusion of these four conditions in the court’s written judgement
constitutes an illegal increase in her sentence — a violation of the double jeopardy
clause. 2
              We reject Love’s double jeopardy claim because the record of the
sentencing proceedings shows that the prosecutor, the defense attorney, and the judge
were all operating with the understanding that, in the absence of an objection, the judge
would impose all of the recommended conditions of probation.




   1
       AS 11.41.210(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(3), respectively.
   2
       Alaska Constitution, Article I, Section 9.

                                            –2–                                       2626

              At the sentencinghearing, the judge referred to the recommended probation
conditions as a group. For example, the judge asked whether these recommended
probation conditions included a provision for mental health treatment. When the
prosecutor replied that such a condition was included, the judge responded, “Good,
good.” And at another point in the sentencing hearing, after one of Love’s neighbors
expressed fear that Love might return to their apartment building after she served her
time in prison, the judge stated that he was going to “expand” the conditions of probation
by adding a “do-not-return-to-the-apartment condition”.         In addition, during the
sentencing, one of the victims voiced the fear that Love would return to the apartment
complex and hurt her or her sister (with whom she lived). The judge addressed this
concern by telling the victim that the list of recommended probation conditions included
a “no-contact” order that prohibited Love from contacting the victims in the future. The
judge advised the victim that if Love contacted her sister following her release, she
should call the police.
              Based on this record, we conclude that the judge intended to impose all of
the conditions of probation proposed in the pre-sentence report, and that both the
prosecutor and Love’s attorney understood this to be the case. We therefore find that the
judge did not violate the double jeopardy clause when he included all of these
recommended probation conditions in his written judgement, even though he did not
explicitly mention all of these conditions during his sentencing remarks.
              Love separately challenges Special Probation Condition 5, which requires
Love to take any medication prescribed for her by a licensed medical practitioner
approved by her probation officer. This probation condition is subject to specialscrutiny
because it restricts Love’s right of self-determination regarding medical treatment, and
also because it potentially requires Love to take psychotropic medication against her



                                          –3–                                        2626

will. 3 However, Love did not object to this condition of probation, so she must now
show plain error. 4
              Although, on its face, the challenged probation condition applies to any and
all medications that might be prescribed by Love’s doctors, the probation condition must
be interpreted in the context of Love’s case. Given this context, we interpret the
probation condition as applying only to mental health medication that Love’s medical
providers deem necessary for her rehabilitation and/or the safety of the public.
              However, this interpretation brings the challenged probation condition
squarely within the scope of our recent decision in Kozevnikoff v. State, __ P.3d __, 2018
WL 3679314 (Alaska App. 2018). And based on Kozevnikoff, we conclude that the
challenged probation condition is plain error, at least in its present form.
              In Kozevnikoff, this Court held that even when the record suggests that a
defendant might need psychotropic medication, the sentencing judge must not impose
a condition of probation that requires the defendant to take such medication against their
will unless the judge has held a hearing “where medically informed expert testimony ...
is presented to the judge”, and where the defendant has “the opportunity to present [their]
own expert testimony, and to argue for alternatives to any medication at all, or to a
particular medication.” Id., 2018 WL 3679314 at *2.
              (We also recognized that, especially when the defendant receives a lengthy
term of imprisonment, it is often better to make this type of decision closer to the time
when the defendant is released on probation. Thus, a sentencing judge has the authority
to impose a condition of probation that calls for a judicial hearing near the date of the



   3
       See Kozevnikoff v. State, __ P.3d __ , 2018 WL 3679314 at *1-2 (Alaska App. 2018).
See also United States v. Williams, 356 F.3d 1045, 1055-57 (9th Cir. 2004).
   4
       State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018).

                                           –4–                                        2626

defendant’s release if, at that time, the circumstances appear to justify compelled
medication. Ibid.)
             The record in Love’s case is plainly insufficient to satisfy the procedural
requisites set forth in Kozevnikoff. Accordingly, we vacate this condition of Love’s
probation, and we direct the superior court to reconsider it.
             If, upon reconsideration, the superior court concludes that the facts justify
a probation condition that could potentially require Love to take psychotropic medication
against her will, this probation condition must be written in such a way that Love can
seek judicial review before she is required to take the medication, and before she faces
revocation of her probation for refusing to take the medication. This prior review is
necessary because of the serious and lasting side-effects that some mental health
medications can cause. See Myers v. Alaska Psychiatric Institute, 138 P.3d 238, 246-48,
254 (Alaska 2006).


      Conclusion
             With the exception of Special Condition of Probation 5, the judgement of
the superior court is AFFIRMED. Special Condition 5 is VACATED, and the superior
court is directed to reconsider whether this probation condition is justified. If the
superior court finds that the probation condition is justified, the court must modify the
probation condition so that it conforms to the requirements explained in this opinion.
             We do not retain jurisdiction of this case.




                                          –5–                                        2626

