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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ERIC L. SMITH,
                                                       Court of Appeals No. A-11390
                             Appellant,               Trial Court No. 4FA-10-2580 CR

                      v.
                                                                 OPINION
STATE OF ALASKA,

                             Appellee.                    No. 2455 — May 29, 2015


              Appeal from the Superior Court, Fourth Judicial District,
              Fairbanks, Randy M. Olsen, Judge.

              Appearances: Callie Patton Kim, Assistant Public Defender,
              and Quinlan Steiner, Public Defender, Anchorage, for the
              Appellant. Sara E. Simpson, Assistant District Attorney,
              Fairbanks, and Michael C. Geraghty, Attorney General, Juneau,
              for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
              District Court Judge. *

              Judge ALLARD.


              Eric L. Smith pleaded guilty to twelve counts of possessing child
pornography after an investigation by the Alaska State Troopers discovered
pornographic images of children on his laptop computer. Smith was sentenced to a

   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
composite sentence of 46 months of active imprisonment, 10 years of supervised
probation, and 72 years of suspended imprisonment.
               On appeal, Smith argues that the 72 years of suspended time and the 10
years of probation are excessive. Smith also challenges a number of his probation
conditions as unconstitutionally vague, overly broad, or lacking a sufficient nexus to his
convictions.
               For the reasons explained here, we conclude that the superior court’s
imposition of a 10-year probationary term was not clearly mistaken. We also affirm the
court’s imposition of probation conditions restricting Smith’s consumption of and access
to alcohol.
               However, we vacate the 72 years of suspended jail time as clearly mistaken
and direct the superior court on remand to impose a term of suspended time more
appropriate to the individualized circumstances of Smith’s case. We also vacate a
number of the challenged probation conditions. On remand, the court may choose to
impose modified versions of some of these conditions consistent with the guidance
provided here.


        Facts and proceedings
               In the course of an online investigation, the Alaska State Troopers
discovered that Eric Smith, a twenty-one-year-old soldier stationed at Fort Wainwright,
was downloading child pornography from the Internet. Trooper David Willson obtained
a search warrant for Smith’s computer and, during the execution of the search warrant,
Smith admitted to possessing child pornography. A forensic examination of Smith’s
computer identified over thirty still and moving images of child pornography, as well as
files containing jokes about pedophilia.




                                           –2–                                      2455

             Smith was charged with twelve counts of possessing child pornography,
and he entered guilty pleas to all twelve counts without a plea agreement.1
             At Smith’s sentencing hearing, Trooper Willson testified that Smith
admitted that he “kept getting sucked into” downloading child pornography, beginning
when he was fourteen years old. In his allocution, Smith said he felt compelled to look
at child pornography because of experiences in his childhood and in Iraq — he and a
cousin had touched each other’s genitals when they were about seven years old, he had
looked at child pornography with a friend the summer between sixth and seventh grade,
and he had seen an Iraqi man rape a young boy while on patrol during military
deployment to Iraq. Smith said he viewed child pornography as a way to punish himself.
He admitted that he drank alcohol whenever he looked at pornography.
             Smith told the court that he accepted responsibility for what he had done,
that he was ashamed, and that he wanted and needed treatment. Smith also told the court
that he had already undergone assessment for sex-offender treatment and found the
process helpful.
             Smith submitted the sex-offender risk assessment, which was prepared by
a licensed social worker, Moreen Fried, to the prosecution and the court. In the
assessment, Fried indicated that Smith had actively participated in the assessment process
and appeared amenable to sex-offender treatment and community supervision.
             Smith’s presentence report noted that Smith had no prior juvenile or adult
criminal history. The report concluded, however, that Smith had “a high level of sexual
deviancy” that put him at “high risk” of re-offending if he did not receive treatment.




   1
       See AS 11.61.127(a).

                                          –3–                                       2455


             As a first felony offender, Smith faced a presumptive range of 2 to 12 years
on each of the twelve convictions.2 The judge was also required to impose at least two
years of suspended time on each conviction as well as a probationary term of at least 5
years.3 Under former AS 12.55.127, the judge had the discretion to impose the
individual sentences on each conviction concurrently, consecutively, or partially
consecutively.4
             At the sentencing hearing, Smith’s attorney requested that the court impose
the lowest sentence permissible within the applicable presumptive sentencing range —
4 years with 2 years suspended on each count, to be run concurrently, for a total
composite sentence of 2 years of active jail time to serve and an additional 2 years of
suspended jail time — i.e., 2 years of suspended jail time that could be imposed later if
Smith violated any of the terms of his probation. Smith’s attorney also requested that the
court impose the minimum 5 years of probation.
             The prosecutor requested that the court impose 8 years with 3 years
suspended on each count and that 3 months of the active imprisonment on each count
and all of the suspended time on each count be run consecutively, for a composite
sentence of 7 years 9 months of active jail time to serve and 36 years of suspended jail
time. The prosecutor requested that Smith serve a 10-year probationary term.
             Superior Court Judge Randy M. Olsen sentenced Smith. In his sentencing
remarks, Judge Olsen indicated that his primary goal in fashioning Smith’s sentence was
to send a message to others that possessing child pornography would not be treated


   2
       See AS 12.55.125(i)(4)(A).
   3
       See AS 12.55.125(o).
   4
       See former AS 12.55.127(b) (2012). In 2013 the Alaska legislature amended AS 12­
.55.127 to require partially consecutive terms of active imprisonment for each additional
conviction for possession of child pornography. See ch. 43, § 21, SLA 2013.

                                          –4–                                       2455

leniently. The judge found that the images on Smith’s computer were “reprehensible”
and that Smith was “heavily involved” in child pornography and needed “a whole lot of
professional help ... to stop.”
              The judge also concluded, however, that “throwing [Smith] in jail and
throwing away the key would not accomplish any more than several years in jail.” He
noted that Smith was young and had admitted responsibility for his crimes and pleaded
guilty without any promises or a plea agreement. The judge also found that Smith
appeared genuinely interested in getting treatment, noting that “maybe the best thing for
[Smith] was to be caught” because now he could “get the help that he needs.”
              Judge Olsen ultimately sentenced Smith to 8 years with 6 years suspended
on each count and 10 years of probation. The judge imposed 2 months of the active term
of imprisonment on each count consecutively, with the rest of the active time to run
concurrently, for a total active term of imprisonment of 46 months(3 years and 10
months) to serve. The judge also imposed all 6 years of suspended time on each count
consecutively, for a total suspended term of 72 years.
              In explaining his decision to impose 72 years of suspended time, Judge
Olsen commented that a lengthy suspended sentence would ensure that Smith would
serve “many years in jail” if he failed at the rehabilitation opportunities made available
to him. Judge Olsen also stated that the primary goal of deterring others would be met
if the sentence was “broadcast somehow over the [I]nternet or to the rest of the
community[.]”
              This appeal followed.




                                          –5–                                       2455


        Why we conclude that the suspended portion of Smith’s sentence is
        excessive
                We review a criminal sentence for excessiveness under the “clearly
mistaken” standard of review.5 This is a deferential standard of review that requires the
appellate court to conduct an independent review of the sentencing record but also gives
considerable leeway to individual sentencing judges.6 As the supreme court has noted,
the clearly mistaken test is founded on two concepts: “first, that reasonable judges,
confronted with identical facts, can and will differ on what constitutes an appropriate
sentence; ... second, that society is willing to accept these sentencing discrepancies, so
long as a judge’s sentencing decision falls within ‘a permissible range of reasonable
sentences.’”7
                When we review a sentence for excessiveness, we consider the sentence in
its entirety, including all suspended time — although the suspended portion of the
sentence is typically weighed less heavily because it is not as harsh as time to serve.8
                In past cases, we have upheld substantial terms of suspended time, although
none as substantial as the 72-year suspended term imposed here.9 Those cases have


   5
       McClain v. State, 519 P.2d 811, 813 (Alaska 1974); see Erickson v. State, 950 P.2d
580, 586 (Alaska App.1997) (quoting State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).
   6
       See Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); State v. Chaney, 477 P.2d
441, 444 (Alaska 1970); Bossie v. State, 835 P.2d 1257, 1261 (Alaska App. 1992).
   7
       State v. Korkow, 314 P.3d 560, 562 (Alaska 2013) (quoting McClain, 519 P.2d at 813)
(internal quotation marks omitted).
   8
       Heavyrunner v. State, 172 P.3d 819, 821 (Alaska App. 2007); Jimmy v. State, 689
P.2d 504, 505 (Alaska App. 1984); see also Karr v. State, 686 P.2d 1192, 1194 (Alaska
1984); Leuch v. State, 633 P.2d 1006, 1010 (Alaska 1981); Andrews v. State, 552 P.2d 150,
154 n.11(Alaska 1976).
   9
       See, e.g., Heavyrunner, 172 P.3d at 821 (27 years suspended and 8 years to serve);
                                                                           (continued...)

                                            –6–                                      2455
involved findings by the sentencing court that the defendant’s conduct was especially
serious, that the defendant was particularly dangerous, or that the defendant had
distinctly poor prospects for rehabilitation.10
              Here, in contrast, the sentencing court found that Smith’s conduct was
“extremely typical” for this type of offense. The court also found reasons to be
cautiously optimistic about Smith’s potential for rehabilitation. The court commented
that “a lengthy suspended sentence” would act as an incentive for Smith and would
ensure that he served “many years in jail” if he failed at the opportunities for
rehabilitation made available to him. But the court did not find — nor does the
sentencing record otherwise show — that 72 years of suspended time was the appropriate
period of time needed to motivate Smith or to protect the public if Smith were to violate
any of the terms of his probation. Instead, the record demonstrates that the court’s
primary purpose in imposing 72 years of suspended time was to deter others by
“broadcast[ing] over the [I]nternet” the heavy penalty for possessing child pornography.
              Deterrence of others and community condemnation are appropriate
sentencing goals that courts must consider in every case.11 But the importance of these
goals in an individual case must be determined in relationship to the specific facts of that
particular case and assessed within the context already provided by the presumptive


   9
       (...continued)
Reandeau v. State, 2014 WL 1779312, at *2 (Alaska App. Apr. 30, 2014) (unpublished) (25
years suspended and 27 ½ years to serve); see generally Williams v. State, 859 P.2d 720, 723
(Alaska App. 1993) (noting that the primary purpose of suspended time is “to serve as a
deterrent in the event that [a defendant’s] efforts toward rehabilitation prove[]
unsuccessful”).
   10
       See, e.g., Heavyrunner, 172 P.3d at 821 (defendant “extremely dangerous” and
rehabilitative prospects “not good”); Reandeau, 2014 WL 1779312 at *2 (defendant had a
serious prior sexual felony).
   11
        AS 12.55.005.
                                           –7–                                        2455
ranges for that offense. As we have previously declared, “any sentencing decision must
ultimately be justified on the particular facts of a defendant’s offense and background,
evaluated in light of the sentencing criteria codified in AS 12.55.005 and the range of
sentences authorized by the legislature.”12 Here, however, the sentencing judge made no
findings to justify such a lengthy suspended term based on the individual circumstances
of Smith’s case.
              We recognize that the judge may have intended the 72 years of suspended
time to serve a primarily symbolic role in Smith’s sentence. We also recognize that,
depending on how he performs on probation, Smith may never serve any of this time, or
he may serve only a small portion of it. But although suspended time is weighed less
heavily than active jail time partly for that reason, it still remains a significant part of a
defendant’s sentence with real-life consequences and still requires individualized
consideration and scrutiny.
              We note that, under our caselaw, probation is a contract that a defendant is
entitled to refuse and to “insist upon a normal sentence.”13 It is implicit in this
commonlaw rule that a correspondence must exist — although not necessarily a precise
one14 — between the length of a suspended sentence and the nature of the particular
offender and offense. That correspondence is lacking in this case. We think it beyond
dispute that if Smith were permitted to reject probation in this case,15 the sentencing


   12
        Phelps v. State, 236 P.3d 381, 382 (Alaska App. 2010).
   13
        State v. Auliye, 57 P.3d 711, 717 (Alaska App. 2002).
   14
        See State v. Henry, 240 P.3d 846, 848-49 (Alaska App. 2008) (if a defendant rejects
probation, “the sentencing judge must not automatically sentence the defendant to all of the
remaining suspended jail time; rather the sentencing judge must apply the Chaney sentencing
criteria to determine an appropriate term of imprisonment”).
   15
        Whether AS 12.55.125(o) prevents a defendant convicted of a sex offense from
                                                                        (continued...)
                                        –8–                                    2455
record would not justify the imposition of a term of incarceration more than eighteen
times Smith’s active term of imprisonment.
              We therefore conclude that the 72 years of suspended time is clearly
mistaken and outside the permissible range of reasonable sentences for this case.
Accordingly, we vacate this portion of Smith’s sentence and remand his case to the
superior court for imposition of a suspended sentence more consonant with the
individualized circumstances of Smith’s case.


         Why we conclude that 10 years of probation is not clearly mistaken
              Smith also argues that the 10 years of probation imposed by the sentencing
court was clearly mistaken, pointing out that it is double the 5-year minimum probation
term required by Alaska statute.16 Smith argues that the 10-year probationary term is
excessive because it is unnecessary to achieve the sentencing goals in his case.
              We conclude that the imposition of a 10-year probationary term was not
clearly mistaken in this case.17 At Smith’s sentencing, the court found that Smith was
“addicted[,] heavily involved” with child pornography, and that he needed “a whole lot
of professional help.” The presentence report similarly commented on Smith’s “serious
compulsion” to view child pornography and the “high level of sexual deviancy”
exhibited by his possession of pornography involving very young children. And Smith
himself admitted that he “kept getting sucked into” viewing child pornography,
beginning when he was a young teen.




   15
        (...continued)
rejecting probation is an issue currently pending before this Court.
   16
        See AS 12.55.125(o).
   17
        See McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
                                           –9–                                     2455
              The court concluded, based on this record, that a lengthy period of
probation was necessary to ensure Smith’s rehabilitation and to protect the public from
his compulsive criminal behavior. We find this conclusion well-supported by the record
and not clearly mistaken.18


         Why we uphold Smith’s probation conditions related to alcohol
              A sentencing judge has broad authority to fashion conditions of probation,
but under Roman v. State, these conditions must be “reasonably related to the
rehabilitation of the offender and the protection of the public and must not be unduly
restrictive of liberty.”19
              On appeal, Smith challenges the conditions of his probation that prohibit
him from possessing or consuming alcohol or entering facilities where alcohol is served,
and that subject him to searches for alcohol.20 He argues that the sentencing court did
not make the findings necessary to justify these conditions under Roman.
              We find no merit to this claim. At the sentencing hearing, Smith admitted
he always drank alcohol when he viewed pornography. And when Smith was asked
during his sex-offender assessment what conditions of probation supervision would be

   18
        Id.
   19
       Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977); see Dawson v. State, 894 P.2d
672, 680 (Alaska App. 1995); Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985).
   20
       See General Condition No. 9 (prohibiting consumption of intoxicating liquor); Special
Condition No. 15 (prohibiting consumption or possession of alcohol or illegal substances and
requiring Smith to inform his probation officer of any prescribed medications); Special
Condition No. 16 (prohibiting Smith from entering bars or other establishments whose
primary function is to serve alcohol or illegal substances); Special Condition No. 17
(requiring Smith to submit to a chemical test for alcohol or drugs at the request of his
probation officer, a law enforcement officer, or treatment provider); Special Conditions Nos.
12 and 18 (requiring in part that Smith submit to searches of his person, property, residence,
and vehicle for alcohol and drugs).
                                           – 10 –                                        2455
appropriate in his case, he stated, “no drinking, no frequenting bars and no computer
access.” Based on this record, the sentencing court could reasonably find that limiting
Smith’s access to alcohol was reasonably related to his rehabilitation and protection of
the public. We therefore affirm the alcohol-related provisions in General Condition No.
9 and Special Condition Nos. 12, 15, 16, 17, and 18.


        Why we vacate the other probation conditions Smith challenges
              (1) The illegal drugs conditions
              Smith challenges the conditions of his probation requiring him to submit
to chemical tests for drugs and to searches for drugs and drug paraphernalia. The State
concedes that the sentencing record fails to establish that Smith has a history of drug use
or that any nexus exists between drug use and Smith’s offenses. Having reviewed the
sentencing record, we find the State’s concessions well-founded.21 We accordingly
vacate the requirement in Special Condition No. 17 that Smith submit to chemical tests
for illegal drugs and the requirement in Special Condition Nos. 12 and 18 that Smith
submit to searches for illegal drugs and drug paraphernalia.


              (2) The“sexually explicit material” conditions
              The sentencing court imposed several conditions of probation prohibiting
Smith from possessing “sexually explicit material” and requiring him to submit to




   21
      See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (an appellate court must
independently evaluate any concession of error by the State in a criminal case).
                                         – 11 –                                  2455
searches for such material.22 Smith argues that these conditions are impermissibly vague
and overbroad.
               The State concedes that these conditions are invalid under our decision in
Diorec v. State.23 In Diorec, the defendant was convicted of sexual exploitation of a
minor for surreptitiously filming his stepdaughter in her bedroom.24 The sentencing
court imposed a condition of probation prohibiting Diorec from possessing “sexually
explicit material” including “pornography.”25 We agreed with the superior court that this
condition was generally related to Diorec’s offense and to the sentencing goals of
rehabilitation and protection of the public.26 But we agreed with Diorec that, without
further definition of what materials were encompassed within the meaning of the terms
“sexually explicit material” and “pornography,” the condition provided constitutionally
inadequate notice of what conduct was prohibited.27
               The same is true here. We therefore vacate Special Condition No. 9 and the
provisions in Special Condition Nos. 12 and 18 requiring Smith to submit to searches for
such material.



   22
       See Special Condition No. 9 (restricting possession of sexually explicit material
without prior written permission of the probation office and sex-offender-treatment provider,
“including but not limited to: books, movies, videos, magazines, printed matter, computer
disks or files, any encryption devices or computer mechanisms or other electronic devices
that can hold this type of visual or audio material...”); Special Condition Nos. 12 and 18
(requiring the probationer to submit to searches for such sexually explicit material).
   23
        295 P.3d 409 (Alaska App. 2013).
   24
        Id. at 411.
   25
        Id. at 416.
   26
        Id.
   27
      Id. at 417; see Johnston v. State, 2013 WL 4780812, at *3 (Alaska App. Sept. 4, 2013)
(unpublished).
                                            – 12 –                                    2455
              The sentencing court may revise these conditions on remand. Because
probation conditions limiting Smith’s access to sexually explicit material will potentially
infringe his First Amendment rights, the court must apply special scrutiny to the
conditions and “affirmatively consider and have good reason for rejecting any less
restrictive alternatives which might be available.”28


              (3) The “stimulus” conditions
              Special Probation Condition No. 10 prohibits Smith from possessing any
material that “acts as a stimulus for his abusive cycle” or that “acts as a stimulus to
arouse him in an abusive fashion.” Smith argues that this condition is also impermissibly
vague and overbroad.
              We recently vacated an identical probation condition in Whiting v. State
because the condition did not adequately define what materials “act as a stimulus” to the
probationer’s “abusive cycle” or arouse the probationer in an “abusive fashion.”29 As
we explained in Whiting, a condition that prohibits a probationer from possessing
material that “acts as a stimulus” must be based on the sentencing record and must
identify particular types of materials that have acted as a “stimulus” for the defendant’s
criminal conduct in the past or are likely to do so in the future.30
              As the State concedes, Special Condition No. 10 suffers from the same
deficiencies we identified in Whiting. We accordingly vacate the condition. On remand,
the court shall consider more specific alternatives that are supported by the record. To


   28
        Johnston, 2013 WL 4780812, at *2; see Peratrovich v. State, 903 P.2d 1071, 1079
(Alaska App. 1995) (probation conditions that restrict constitutional rights may only be
imposed after trial court “affirmatively consider[s] and [has] good reason for rejecting lesser
restrictions...”).
   29
        Whiting v. State, 2014 WL 706268, at *2 (Alaska App. Feb. 19, 2014) (unpublished).
   30
        Id.
                                            – 13 –                                       2455
the extent those alternatives potentially infringe Smith’s First Amendment rights, the
court must apply special scrutiny and adopt less restrictive alternatives if they are
available.31


               (4) The “significant relationship” or “closely affiliated” condition
               Special Condition No. 25 requires Smith, after consulting with his treatment
provider and probation officer, to “inform all persons with whom he has a significant
relationship, or with whom he is closely affiliated, of [his] sex offending history.” Smith
argues that this condition is unconstitutionally vague.
               In Whiting we vacated an identical probation condition, concluding that the
terms “significant relationship” and “closely affiliated” provided constitutionally
inadequate notice of when an association with another person becomes sufficiently
“close” or “significant” that a probationer will be subject to prosecution for failing to
disclose his criminal history to the person.32 We also noted that, because social
relationships are not static, the condition might require a probationer to repeatedly
consult with his treatment provider and probation officer to ensure he is not violating it.33
               We conclude, as the State concedes, that our reasoning in Whiting applies
equally here. We therefore vacate Special Condition No. 25. The court may reimpose
this condition on remand with additional clarification of the terms “closely affiliated” and
“significant relationship.”




   31
        Johnston, 2013 WL 4780812, at *2; see Peratrovich, 903 P.2d at 1079.
   32
        Whiting, 2014 WL 706268, at *2-3.
   33
        Id. at *3.
                                           – 14 –                                      2455
              (5) The limitation on driving privileges
              Special Condition No. 11 requires Smith to “observe limitations on driving
privileges as established by his probation officer.” Smith argues that this condition is
unduly restrictive of his liberty and not reasonably related to his rehabilitation.
              As the State concedes, nothing in the sentencing record suggests that
Smith’s criminal conduct involved driving or that his rehabilitation would be advanced
by limitations on his driving privileges. We therefore agree with Smith that this
condition is not reasonably related to his rehabilitation or to protection of the public.
Accordingly, we vacate Special Condition No. 11.


        Conclusion
              We AFFIRM Smith’s 10-year probation sentence and the alcohol-related
provisions in General Condition No. 9 and Special Condition Nos. 12, 15, 16, 17, and
18. We VACATE the drug-related provisions in Special Condition Nos. 12, 17, and 18.
We also VACATE Special Condition No. 11. We VACATE and REMAND for
proceedings consistent with this opinion Smith’s 72-year suspended sentence, Special
Condition Nos. 9, 10, and 25, and those portions of Special Condition Nos. 12 and 18
that relate to sexually explicit material.




                                             – 15 –                                   2455


