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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ROY F. SILAS,
                                                     Court of Appeals No. A-11452
                           Appellant,               Trial Court No. 3AN-99-1814 CR

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

                           Appellee.                    No. 2602 — June 1, 2018


             Appeal from the Superior Court, Third Judicial District,
             Anchorage, Michael L. Wolverton, Judge.

             Appearances: J. Adam Bartlett, Anchorage, under contract with
             the Office of Public Advocacy, for the Appellant. Timothy W.
             Terrell, Assistant Attorney General, Office of Criminal Appeals,
             Anchorage, and Craig W. Richards, Attorney General, Juneau,
             for the Appellee.

             Before: Mannheimer, Chief Judge, and Allard, Judge.

             Judge MANNHEIMER.


             As a condition of his probation, Roy F. Silas was ordered to participate in
sex offender treatment as directed by his probation officer, and to “not ... discontinue
treatment” unless he had his probation officer’s approval. After Silas had participated
in a sexoffender treatment program for over a year, the program director terminated him
from the program for various reasons (reasons that we will examine in this opinion).
Based on Silas’s termination from the treatment program, the State petitioned the
superior court to revoke his probation, alleging that Silas had violated his probation by
discontinuing his treatment without permission.
               Silas’s attorney argued that Silas had not “discontinued” treatment, but
rather that Silas had been involuntarily discharged from the treatment program without
good reason.
               The superior court ruled that it did not matter why Silas was terminated
from the treatment program. The court interpreted Silas’s condition of probation as
requiring Silas to continue treatment until his probation officer said otherwise, and that
Silas was in “technical violation” of his probation because he had been discharged from
the treatment program — regardless of whether there was good cause for Silas’s
discharge.
               We conclude that the superior court’s ruling was error. If it was true that
Silas was discharged from the treatment program for no good reason (or for improper
reasons), then Silas’s discharge from treatment would not establish good cause for the
court to revoke Silas’s probation.
               As we recently explained in Pulusila v. State, __ P.3d __, 2018 WL
2272568 (Alaska App. 2018), our law forbids a sentencing court from revoking a
defendant’s probation unless the court finds that the facts surrounding the defendant’s
violation of probation constitute “good cause” to revoke probation. Pulusila, 2018 WL
2272568 at *2, 3, 6. In this context, “good cause” means a finding that “the corrective
aims of probation cannot be achieved”, and that “continuation of [the defendant’s]
probationary status would be at odds with the need to protect society and society’s
interest in the probationer’s rehabilitation.” Id. at *3, quoting Trumbly v. State, 515 P.2d
707, 709 (Alaska 1973).



                                           –2–                                         2602

               In Silas’s case, the superior court never reached the factual merits of the
defense attorney’s contention that Silas was terminated from treatment without good
reason. Thus, Silas’s case still presents disputed issues of fact that the superior court
must address and resolve — and we remand Silas’s case to the superior court for that
purpose.
               Silas’s case also presents other issues related to his conditions of probation.
               At the probation revocation hearing, the superior court rejected Silas’s
request that he be allowed to socialize with Patsy Schreiber, his romantic partner and the
mother of his children. Because the superior court failed to offer any plausible basis for
this restriction on Silas’s family relationship, we reverse the superior court’s ruling on
this matter.
               Additionally, after the superior court revoked Silas’s probation, the court
added several new probation conditions. The court ordered Silas to enroll in domestic
violence treatment, even though his case apparently presents no issue of violence. The
court also ordered that, if a medical professional deemed it appropriate, Silas would be
required to enroll in a residential treatment program. By adding the possibility of forced
participation in residential treatment, the superior court illegally increased Silas’s
sentence. See Christensen v. State, 844 P.2d 557, 559 (Alaska App. 1993). We therefore
direct the superior court to rescind these conditions.


       Underlying facts


               In 1999, Roy F. Silas was convicted of second-degree sexual abuse of a
minor. He was sentenced to a term of active imprisonment, followed by probation for
10 years (with a 5-year suspended term of imprisonment). One of Silas’s conditions of
probation required him to participate in sex offender treatment as directed by his

                                             –3–                                         2602

probation officer, and not to discontinue treatment without his probation officer’s
approval.
              After Silas was released on probation, his probation officer directed him to
participate in sex offender treatment. In January 2011, Silas entered the sex offender
treatment program run by the Center for Psychosocial Development. He participated in
this program for more than a year, until May 2012, when he was arrested for stealing a
laptop computer.
              Severalweeks later, Silas was released from custody in connection with the
theft of the laptop, and he re-entered the sex offender treatment program. But after a
period of time, the director of the treatment program, Julie Holden, terminated Silas from
the program. According to the discharge summary prepared by Holden, Silas was
terminated from the program because he possessed several pornographic videos, because
he did not adhere to his curfew, and because he was “unwilling[] to fully engage and
participate in treatment”.
              After Silas was discharged from the sex offender treatment program, the
State petitioned the superior court to revoke his probation. The State alleged that Silas
violated the requirement that he was “not to discontinue treatment” without his probation
officer’s approval.
              At the ensuing revocation hearing in the superior court, Silas’s attorney
argued that Silas had not “discontinued” his sex offender treatment — rather, Silas had
been terminated from the program against his will. Through his cross-examination of
Silas’s probation officer and his cross-examination of Holden, as well as through Silas’s
own testimony, the defense attorney tried to show that Holden had terminated Silas from
the program based on erroneous assumptions about Silas’s probation conditions, and
based on unsupported assertions about Silas’s purported “unwillingness” to engage in
treatment.

                                          –4–                                        2602

             With regard to Silas’s possession of pornographic videos, Holden’s
testimony on cross-examination revealed that she mistakenly believed that Silas’s
conditions of probation prohibited him from possessing pornography.
             With regard to the curfew, Silas testified that the curfew was imposed on
him to prevent him from socializing with Patsy Schreiber, his romantic partner and the
mother of his children. And Holden indicated that she thought the curfew was merely
an implementation of Silas’s conditions of probation. But Silas’s probation officer
testified that she had never prohibited Silas from having contact with Schreiber.
             With regard to Silas’s “hiding things” from his treatment providers, Holden
asserted that Silas had engaged in acts of domestic violence while he was enrolled in the
treatment program. But later, Holden essentially admitted that she was mistaken about
this.
             And with regard to Silas’s alleged unwillingness to participate in the
program, Holden offered no concrete examples of Silas’s non-participation. She merely
asserted:

                    I felt like we lost [Silas] in his participation in group
             — his honest, you know, participation in group. ... He did
             not ever really fully engage [following his return to treatment
             after his incarceration for the theft of the laptop]. And I felt
             that we had a whole series of things that were beginning to
             happen again, whether they were at our direction or probation
             or parole ... that, okay, we’re at another point here where we
             seem to have lost Roy as a client and a participant.

But Silas, for his part, testified that he remained committed to participating in sex
offender treatment. He contended that he stopped volunteering things in the treatment
sessions because, whenever he spoke, the facilitator would accuse him of lying.



                                          –5–                                       2602

             In sum, the defense attorney tried to establish that most of Holden’s reasons
for dischargingSilas from the treatment program were demonstrably unfounded, and that
Silas’s alleged unwillingness to participate in group therapy was a contested matter of
opinion.
             But during the defense attorney’s cross-examination of Holden, while the
attorney was attempting to demonstrate that Holden lacked any substantial grounds for
terminating Silas from the program, the judge interrupted the cross-examination and
declared that the defense attorney’s questions were irrelevant to the issue of whether
Silas had violated his probation. The judge indicated that Silas violated his probation
because he was discharged from the treatment program — and that the reason for Silas’s
termination from the program was irrelevant. At the time, Silas’s attorney seemingly
agreed with the judge’s assessment:

                    The Court: Here’s the problem ... . This is an
             adjudication [hearing, not a disposition hearing.] It seems
             abundantly clear that he was discharged from the treatment
             program. Now, if you want to talk about the reasons for that
             — as a matter of disposition — that’s fine. But for
             adjudication [purposes], is there — are you contesting that he
             was discharged?

                    Defense Attorney: Well, ... this could [be relevant] to
             disposition, Judge. I mean, this is part of what you have to
             think about when you sentence him.

                    The Court: Right. I get your point. ... But as far as
             adjudication, ...

                    Defense Attorney: No, you’re correct. It wouldn’t
             have to do with whether he was discharged from the program.



                                          –6–                                        2602

              However, later in the hearing, Silas’s attorney argued that the evidence
presented at the hearing did not establish that Silas “discontinued” his treatment, either
in the sense of deciding to stop treatment or even in the sense of failing to make good-
faith efforts to participate in the treatment. Rather, the defense attorney argued, the
evidence showed that Silas was terminated from the program without good reason —
thus preventing Silas from fulfilling his treatment requirement.
              The superior court rejected the defense attorney’s position — rulinginstead
that Silas’s termination from the treatment program was, in and of itself, a violation of
his probation, regardless of the reason for Silas’s termination:

                     The Court: [Silas’s conditions of probation stated that
              he was to] enter and successfully complete an approved sex
              offender treatment program ... as directed by the Department
              of Corrections — period. [And] the next sentence [of that
              same probation condition] is, “The defendant is not to
              discontinue treatment without written approval of the
              probation/parole officer.” ... I’m going to find that he had an
              obligation to continue treatment ... .

              After the superior court announced this ruling, Silas’s attorney noted that
the court had failed to address Silas’s argument that he did not “discontinue” the
treatment program — that he was instead terminated without good reason. The superior
court responded by declaring that even if Silas was terminated from the program without
good reason, Silas was still in “technical violation” of his conditions of probation.
              Based on the superior court’s finding that Silas had violated his probation,
the court revoked Silas’s probation and imposed 90 days of Silas’s previously suspended
jail time. The superior court also added three new probation conditions, including a
condition that required Silas to enter and successfully complete any other treatment
programs approved by the Department of Corrections, “including but not limited to

                                           –7–                                          2602

substance abuse treatment and domestic violence programming.” The court also
declared that this new treatment requirement could include placement “in a residential
mental health or substance abuse program for a length of time determined necessary by
the appropriate professional.” (Emphasis added.) In other words, Silas could be
confined against his will in a residential treatment facility.


       Silas’s probation could not be revoked unless there was good cause — and
       Silas’s termination from the treatment program did not necessarily
       establish good cause to revoke his probation


              In Silas’s brief to this Court, he argues that he did not “discontinue” his sex
offender treatment; rather, he was dismissed from the program involuntarily. Silas
contends that the word “discontinue” connotes a deliberate or willful act, and that
therefore the State had to prove that Silas deliberately or willfully ended his participation
in the treatment program. Because Silas took no affirmative action to discontinue the
treatment, he argues that he did not violate his probation.
              The State responds that the involuntariness of Silas’s departure from the
treatment program should not be considered a defense — for otherwise, “any degree of
half-hearted, minimal[] effort” would suffice to satisfy a defendant’s treatment
obligation.
              We agree with the State that the involuntariness of Silas’s discharge from
the treatment program is not, standing alone, a defense to the allegation that Silas
violated his treatment requirement. As the supreme court explained in Trumbly, and as
this Court explained in Pulusila, the real question is whether, given the reasons for
Silas’s termination from the treatment program, the superior court could reasonably
conclude that the aims of probation could not be achieved, and that the continuation of


                                            –8–                                         2602

Silas’s probationary status “would be at odds with the need to protect society and
society’s interest in [Silas’s] rehabilitation.”
              Under Trumbly and Pulusila, the superior court could conceivably find
good cause to revoke Silas’s probation even if Silas had been terminated from the
treatment program involuntarily — if, for example, despite Silas’s best efforts, his
cognitive deficits or emotional difficulties prevented him from deriving any substantial
benefit from the program, and if there was no alternative treatment available to achieve
the court’s rehabilitative goals while leaving Silas at liberty in the community under
probation supervision.
              The superior court would have confronted a similar issue if Silas had been
terminated from treatment involuntarily because the program’s funding was cut. Under
Trumbly and Pulusila, the question is not whether the termination of treatment was
Silas’s fault — although Silas’s fault or lack of fault would certainly be a relevant factor
in the court’s assessment under Trumbly and Pulusila. Rather, the question is whether,
given the new situation, the superior court could reasonably conclude that the aims of
Silas’s probation could no longer be achieved, and that the continuation of Silas’s
probationary status “would be at odds with the need to protect society and society’s
interest in [Silas’s] rehabilitation” — or whether, instead, alternative methods were
available to achieve the goals of probation.
              In the present case, even though Silas’s attorney may have couched his
argument in terms of the “involuntariness” of Silas’s termination from the sex offender
treatment program, the record of the superior court proceedings clearly shows that the
defense attorney was trying to establish that Silas was terminated from the program for
reasons that were unfounded — reasons that did not reflect on Silas’s amenability to
treatment.



                                             –9–                                       2602

              The defense attorney’s cross-examination of Julie Holden (the program
director), as well as Silas’s own testimony at the hearing, were designed to show that
Holden discharged Silas from the treatment program for reasons that were either
demonstrably wrong or, at best, were supported only by vague and unspecific assertions
that Silas had failed to “engage” — assertions which Silas actively disputed.
              For instance, Holden conceded that she had mistakenly believed that Silas’s
possession of pornography was a violation of his conditions of probation. She also
essentially conceded that she had been wrong in thinking that Silas had engaged in acts
of domestic violence during his treatment. And according to Silas’s testimony, his
curfew was imposed under the mistaken belief that his probation officer had prohibited
him from socializing with his romantic partner, Patsy Schreiber. It is unclear whether
Holden would have discharged Silas from the treatment program if she had understood
the true state of affairs.
              The only remaining ground that Holden offered for terminating Silas from
the treatment program was her assertion that Silas had not been “full[y] participating, not
being honest, ... [not] engaging in the therapeutic process.” But other than the three
discredited instances discussed in the preceding paragraph, Holden offered nothing
specific to back up her conclusory assertion that Silas had not been making good-faith
efforts to participate in treatment. And Silas (in his own testimony) actively disputed this
assertion.
              The superior court refused to resolve any of these issues. Instead, the court
ruled that Silas’s probation could be revoked if Silas was terminated from the treatment
program for any reason — even if the factual premises underlying Silas’s termination
were demonstrably mistaken or actively disputed.
              This was error. Under Trumbly and Pulusila, the question the superior
court should have been asking is whether the circumstances of Silas’s termination from

                                           – 10 –                                      2602

the program showed that the aims of Silas’s probation could not be achieved, and that
continuation of Silas’s probationary status would be contrary to the need to protect
society and the need to foster Silas’s rehabilitation.
              Because the superior court declined to resolve the factual disputes raised
by Silas and his attorney, the existing record fails to establish whether Silas was
terminated from treatment for reasons that cast substantial doubt on his amenability to
treatment and the efficacy of his continued probation. Thus, the record fails to support
the superior court’s revocation of Silas’s probation.
              We therefore vacate the superior court’s revocation of Silas’s probation.
If the State chooses to pursue this matter further, the State must establish that there is
good cause to revoke Silas’s probation under the legal standard that we have explained
here.


        The new conditions of probation that the superior court added when it
        revoked Silas’s probation


              As we explained earlier, after the superior court revoked Silas’s probation
for his alleged act of “discontinuing” sex offender treatment without his probation
officer’s approval, the court added several new conditions to Silas’s probation. Because
we are vacating the superior court’s finding that Silas violated his probation, any
immediate review of these new conditions is technically moot. 1

   1
        See State v. Henry, 240 P.3d 846, 848 (Alaska App. 2010), and Reyes v. State, 978
P.2d 635, 640-41 (Alaska App. 1999), where this Court held that a sentencing judge cannot
alter a defendant’s conditions of probation to the defendant’s detriment unless the State
proves that the defendant has violated the conditions of their probation or that the defendant
has engaged in some other post-sentencing conduct that establishes a substantial reason to
conclude that the defendant’s current conditions of probation are not adequately ensuring the
defendant’s rehabilitation or adequately protecting the public.

                                            – 11 –                                       2602

                 We nevertheless address certain aspects of these new conditions, to avoid
any repetition of error should the State decide to renew its probation revocation petition
against Silas.
                 At the revocation hearing, Silas’s attorney challenged a purported order
issued by Silas’s probation officer that prohibited Silas from contacting Patsy Schreiber,
the woman who was Silas’s romantic partner and the mother of his children. Silas and
Schreiber wanted to get married, but Silas told the court that they were prevented from
seeing each other because of his probation officer’s order.
                 The State’s response was that no such order existed. Silas’s probation
officer, his treatment supervisor, and his mental health provider all denied that they had
ever prohibited Silas from seeing Schreiber.
                 Nevertheless, at the end of the hearing, the superior court denied Silas’s
request to resume contact with Schreiber. The court gave no reasons for its ruling.
                 The State concedes that the superior court’s ruling was error, because the
court made no special findings to justify this interference with Silas’s familial
relationships. See Dawson v. State, 894 P.2d 672, 680-81 (Alaska App. 1995), and
Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014).
                 But there is another significant problem with the superior court’s order.
Even though Silas alleged that his probation officer had prohibited him from contacting
or socializing with Schreiber, the three State’s witnesses who supervised Silas’s
probation — his probation officer, his treatment supervisor, and his mental health
provider — all denied that such a restriction had ever been placed on Silas. Nor did they
offer any reason why such a restriction should be placed on Silas.
                 Given this record, the superior court lacked any plausible basis for
prohibiting Silas from seeing Schreiber. We therefore reverse the superior court’s order
on this matter.

                                            – 12 –                                    2602

              We also need to address the superior court’s decision to impose a new
condition on Silas requiring him to enter any and all treatment programs approved by the
Department of Corrections if he is ordered to do so by his probation officer.
              The superior court specified that these unnamed programs should include
“domestic violence programming”, even though Silas’s case does not appear to include
any aspect of physical violence, and even though the court made no finding that such a
program had any connection to Silas’s rehabilitation or to preventing Silas from posing
a danger to the public. See Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
              If the superior court again revokes Silas’s probation, and if the court again
concludes that Silas should be required to participate in domestic violence programming,
the court must make specific findings justifying this new requirement.
              Another provision of this same new condition of probation requires Silas
to “enroll in a residential mental health or substance abuse program for a length of time
to be determined necessary by the appropriate professional.” (Emphasis added.) It was
illegal for the superior court to add this new requirement to Silas’s probation, because
the court was potentially increasing Silas’s total period of incarceration. See Christensen
v. State, 844 P.2d 557, 559 (Alaska App. 1993); AS 12.55.100(c).


       Conclusion


              The superior court’s “Disposition Order” — i.e., its order revoking Silas’s
probation and adding new conditions of probation — is VACATED in part and
REVERSED in part.




                                          – 13 –                                      2602

