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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MARTIN TYLER KOZEVNIKOFF,
                                                      Court of Appeals No. A-11318
                            Appellant,                Trial Court No. 4BE-11-453 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                   No. 2611 — August 3, 2018


              Appeal from the Superior Court, Fourth Judicial District, Bethel,
              Raymond M. Funk, Judge.

              Appearances: Peter Kopperud, Assistant Public Advocate, and
              Richard Allen, Public Advocate (opening brief), and Jane B.
              Martinez, Law Office of Jane B. Martinez, LLC, under contract
              with the Office of Public Advocacy (reply brief), Anchorage, for
              the Appellant. Tamara E. DeLucia, Assistant Attorney General,
              Office of Criminal Appeals, Anchorage, and Craig W. Richards,
              Attorney General, Juneau, for the Appellee.

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

              Judge SUDDOCK.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
               Martin Tyler Kozevnikoff pleaded guilty to one count of first-degree sexual
abuse of a minor.1 Over a defense objection, the sentencing judge imposed Special
Condition of Probation No. 11 requiring Kozevnikoff to undergo a mental health
evaluation and, if recommended, to take prescribed drugs.
               Kozevnikoff challenges this condition of probation, arguing that it unduly
restricts his liberty. The State responds that the special condition is reasonably related
to Kozevnikoff’s rehabilitation and to the protection of the public, and is not unduly
restrictive.
               We find the current record insufficient to support the probation condition,
and we remand the case for further proceedings.


       Background facts and proceedings
               When Kozevnikoff was twenty-one, he sexually penetrated and had sexual
contact with his two sisters and an unrelated boy; the girls were three and five, and the
boy was five.
               Kozevnikoff was charged with three counts of first-degree sexual abuse of
a minor and three counts of second-degree sexual abuse of a minor. Pursuant to a
Criminal Rule 11 plea agreement, he pleaded guilty to one count of first-degree sexual
abuse of a minor. Superior Court Judge pro tem Raymond M. Funk sentenced him to
35 years’ incarceration with 10 years suspended (25 years to serve) and 15 years’
probation.
               Over defense objection, the judge imposed a probation condition requiring
Kozevnikoff to take any medication that he might be prescribed after a mental health
evaluation:


   1
       AS 11.41.434(a)(1).

                                           –2–                                       2611

                 You must obtain a DOC approved mental health evaluation
                 and follow all recommendations, which may include
                 ingestion of medications as prescribed by a licensed
                 practitioner. You shall totally abstain from use and
                 possession of any drugs not prescribed by a licensed
                 practitioner. If any side effect issues cannot be resolved with
                 your physician then you are entitled to have a review hearing
                 with the court.
                 The judge acknowledged that certain psychotropic medications can have
“terrible lifelong side effects [such as] involuntary shaking.” But he concluded that “a
defendant with mental health issues, especially given the gravity of this kind of case,
shouldn’t be able to ... decide he just doesn’t want to take them.”


       Why we remand the case for further proceedings
                 Probation conditions must be “reasonably related to the rehabilitation of the
offender and the protection of the public and ... not unduly restrictive of liberty.”2 Before
imposing a probation condition that restricts a constitutional right, the trial court must
first affirmatively consider and have a good reason for rejecting less restrictive
alternatives.3
                 In Myers v. Alaska Psychiatric Institute, the Alaska Supreme Court held
that requiring a patient to ingest psychotropic medication infringes on a significant
liberty and privacy interest.4 The court found that psychotropic medications are “highly


   2
       Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
   3
       Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995).
   4
      Myers v. Alaska Psychiatric Institute, 138 P.3d 238, 246, 248 (Alaska 2006); see also
Washington v. Harper, 494 U.S. 210, 221 (1990); Baker v. State, 2003 WL 21663992, at *1
(Alaska App. July 16, 2003) (unpublished) (citing Sell v. United States, 539 U.S. 166, 177
                                                                             (continued...)

                                              –3–                                        2611

intrusive” medications and that they have been equated with electro-convulsive therapy
and psycho-surgery.5         They “‘affect the mind, behavior, intellectual functions,
perception, moods, and emotions’ and are known to cause a number of potentially
devastating side effects,” some of which are permanent and not treatable.6
               In light of the profound effects that can accompany psychotropic drugs, the
Myers court held that, for civilly committed mental patients, the right to refuse
psychotropic medication is a fundamental right, although not an absolute one.7
Accordingly, any compelled ingestion of medication by a psychiatric patient must be
preceded by an independent judicial determination that taking the drug is in the patient’s
best interests, and that no less intrusive treatment will suffice.8
               In United States v. Williams, the Ninth Circuit reviewed a probation
condition that, like Kozevnikoff’s, provided for an independent judicial hearing only
after a probationer had been ordered by a probation officer to ingest medication, and
only upon a request by the probationer for such a hearing.9 The court held that the
condition fell short of the constitutionally required level of scrutiny.10 The court
reasoned that any ingestion of medication must be based upon a medically informed


   4
      (...continued)
(2003)).
   5
        Myers, 138 P.3d at 242.
   6
      Id. at 241-42 (quoting Steele v. Hamilton County Cmty. Mental Health Bd., 736
N.E.2d 10, 15 n.3 (Ohio 2000)).
   7
        Id. at 251-52.
   8
        Id. at 252.
   9
        United States v. Williams, 356 F.3d 1045, 1047 (9th Cir. 2004).
   10
        Id. at 1047, 1057.

                                           –4–                                       2611

record — a record containing an “independent and timely evaluation ... by a medical
professional, including attention to the type of drugs proposed, their dosage, and the
expected duration of a person’s exposure, as well as an opportunity [for the defendant]
to challenge the evaluation and offer his or her own medical evidence in response.”11
               In Kozevnikoff’s case, the judge realized that Kozevnikoff must be
provided with an avenue for seeking an independent judicial hearing. But the judge did
not provide for a hearing that preceded any administration of psychotropic drugs.
Instead, he stated that Kozevnikoff would only be entitled to an independent judicial
hearing after he complied with his probation officer’s order to take a psychotropic drug,
then suffered adverse side effects from the medication, then unsuccessfully attempted to
“resolve” those side effects with his physician, and finally asked the court to hold a
review hearing.
               The record justifies the judge’s concern that psychotropic medications
might be needed, given Kozevnikoff’s history of abusing young children, the fact that
he has been diagnosed with various psychiatric conditions since boyhood, and the fact
that he was taking psychoactive drugs at the time of sentencing. But these facts do not
negate the need for a hearing where medically informed expert testimony of the sort
required by Williams is presented to the judge. At such a hearing, Kozevnikoff would
have the opportunity to present his own expert testimony, and to argue for alternatives
to any medication at all, or to a particular medication.
               We recognize the State’s interest in avoiding Kozevnikoff’s release to
probation without having these issues resolved. We addressed a similar issue in Kobuk
v. State, where we noted that the trial court could not know at the time of sentencing
what medication might be appropriate when the defendant was ultimately released on


   11
        Id. at 1056.

                                          –5–                                       2611

probation.12 We authorized the trial court to make a provision in the conditions of
probation for a judicial hearing near the date of the defendant’s release if the
circumstances at that time appeared to justify compelled medication.13
                  The State suggests that such a procedure would be appropriate in this case.
We agree. We vacate the challenged special condition of probation, and we remand the
case for reconsideration consistent with this opinion.


        Conclusion
                  We REMAND this case to the superior court to reconsider Special
Condition of Probation No. 11.




   12
        Kobuk v. State, 1987 WL 1357149, at *2 (Alaska App. June 3, 1987) (unpublished).
   13
        See id.

                                              –6–                                       2611

