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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


RONNIE J. BEASLEY II,
                                                      Court of Appeals No. A-11698
                            Appellant,               Trial Court No. 3PA-11-3312 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                No. 2482 — December 23, 2015


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Gregory Heath, Judge.

              Appearances: Megan Webb, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Melissa J. Wininger-Howard, Assistant District Attorney,
              Palmer, and Craig W. Richards, Attorney General, Juneau, for
              the Appellee.

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

              Judge SUDDOCK.


              Pursuant to a plea agreement for open sentencing on a single count of
possession of child pornography, Ronnie J. Beasley II received a sentence of 6 years with


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
3 years suspended. He now contends that as a youthful offender with no prior record,
a history of post-arrest cooperation, and an endorsement of good rehabilitative prospects
in his presentence report, he merited a statutory minimum sentence of 4 years with 2
years suspended. We conclude that Beasley’s sentence was within the broad discretion
of the trial court. But in light of the State’s concession that five probation conditions are
not justified by the record as it currently stands, we remand for further proceedings as
to all the conditions of probation imposed by the judge.


       Background facts
              In May of 2011 a state trooper initiated an investigation into internet
distribution of child pornography. The investigation ultimately led to Beasley. When
interviewed by a state trooper, Beasley initially denied using file sharing software, but
he later admitted using it to download child pornography.
              Troopers then executed a search warrant on Beasley’s residence. The
troopers seized two computers. A forensic examination of Beasley’s computer revealed
forty-two video files and twenty-one still images depicting child pornography. One video
portrayed penis-to-anus penetration of an infant. Beasley was subsequently charged with
one count of possessing child pornography and one count of distributing child
pornography.
              Beasley pleaded guilty to the possession charge pursuant to an agreement
for dismissal of the distributing charge with open sentencing by the court. The State did
not allege aggravating factors, nor did Beasley allege mitigators.
              The presentence report revealed that Beasley, age twenty-four, had no
juvenile history of offenses, no prior adult criminal record, and no traffic violations. And
while incarcerated he had no disciplinary infractions and worked as a janitor. During a
presentence interview Beasley disclosed that he began viewing adult pornography at age

                                            –2–                                         2482

fifteen, and he then progressed to child pornography via comics and drawings. He
denied sexual attraction to children in daily life but admitted that he fantasizes about
children. He expressed confusion and dismay about his pornography addiction, and he
stated that he welcomed counseling and treatment. The presentence report recommended
a statutory minimum sentence of 4 years with 2 years suspended.
             Although possession of child pornography is a class C felony, its
punishment differs from a typical class C felony offense. The maximum possible term
of imprisonment for possession of child pornography is 99 years, and the presumptive
range for a first-felony offender is 2 to 12 years.1 The court is also required to impose
at least 2 years of suspended time as well as a term of probation of at least 5 years.2
             At the sentencing hearing, Beasley’s counsel told the judge that he had no
objection to the presentence report beyond a request to narrow a polygraph requirement,
which the judge denied. The judge sentenced Beasley to 6 years with 3 years suspended,
and 5 years of probation. The presentence report recommended twelve general
conditions and twenty-two special conditions of probation, collectively comprising four
pages of single-spaced paragraphs. The court adopted all the proposed probation
conditions without discussion.


       The sentence was not clearly mistaken
             We review excessive sentence claims under a deferential clearly-mistaken
standard.3 This test is “founded on two concepts: first, that reasonable judges,
confronted with identical facts, can and will differ on what constitutes an appropriate


   1
       AS 12.55.125(i)(4).
   2
       AS 12.55.125(o).
   3
       McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

                                          –3–                                        2482

sentence; [and] 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.”4
               The sentencing judge did not adopt the presentence report’s
recommendation of the minimum term of 4 years with 2 years suspended. He found that
Beasley’s offense required a longer term of imprisonment, despite Beasley’s “good
prospects for rehabilitation.” The judge emphasized community condemnation, stating
that society considers child pornography to be a “severe” criminal offense, with the
“most innocent of victims.” In particular, the judge noted the extent of Beasley’s child
pornography collection. Accordingly, he imposed 3 years to serve rather than the 2-year
sentence recommended in the presentence report.
               The record supports the judge’s decision. Considering that the sentence is
toward the low end of the presumptive range, it is apparent that the judge took into
account Beasley’s lack of a criminal record, his youth, his cooperation with law
enforcement, his acknowledgment of wrongdoing, his desire to receive treatment, and
his “good prospects for rehabilitation.” While another judge might with equal validity
have considered Beasley a good candidate for a minimum sentence that placed greater
emphasis on his rehabilitation prospects, Beasley has not shown that the sentencing
judge imposed a sentence that was clearly mistaken.


       The probation conditions
               Beasley next challenges seven of his probation conditions — one general
condition and six special conditions. Under Alaska law, all probation conditions must



   4
       State v. Korkow, 314 P.3d 560, 562 (Alaska 2013) (internal quotation marks and
original citation omitted).

                                          –4–                                       2482

be “reasonably related to the rehabilitation of the offender and the protection of the
public and must not be unduly restrictive of liberty.”5 The State concedes that the court
failed to enter findings required to support five of the special conditions under this
standard. That concession is well-taken. In fact, the court did not make any findings
regarding probation conditions, but rather adopted wholesale the twelve general
conditions and twenty-two special conditions of probation proposed in the presentence
report.
                Some of the conditions are facially unrelated to Beasley’s crime and life
circumstances or are not self-evidently applicable. Others are overly broad or poorly
defined. For example, the court ordered Beasley, a non-violent offender, to submit to a
search of his person, home, or vehicle for a deadly weapon. But under Alaska law a
sentencing court must express a case-specific basis for any requirement of warrantless
submission to searches for drugs, weapons, or other items.6 The State agrees that this
condition should be vacated.
                Similarly, the State agrees that remand is necessary for the court to revisit
its conditions regarding possession of any sexually explicit material, presence in
businesses selling this material, or submission to search for this broad class of
contraband. This concession is appropriate in light of our decision in Diorec v. State,
where we held that the phrase “sexually explicit material” is unconstitutionally vague.7
And the State agrees that a requirement that Beasley disclose his criminal history to “all
persons with whom he has a significant relationship, or with whom he is closely
affiliated” cannot stand as written. In Smith v. State this Court rejected a nearly identical


   5
          Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
   6
          Id. at 1243; State v. Thomas, 133 P.3d 684, 685 (Alaska App. 2005).
   7
          Diorec v. State, 295 P.3d 409, 417 (Alaska App. 2013).

                                             –5–                                        2482

probation condition as impermissibly vague.8 In particular, the Court held that the terms
“significant relationship” and “closely affiliated” provide “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.”9 And while the State defends the superior court’s alcohol
restriction and breath analysis requirement, those conditions also require explicit judicial
findings, because there is no history of substance abuse in the record.
                Finally, the State apparently did not file a forfeiture motion regarding the
two seized computers. If that matter has not yet been resolved, the court should address
it on remand.
                Alaska law prohibits a sentencing judge from imposing undue restrictions
on a probationer. Thus a judge must affirmatively review the State’s proposed probation
conditions. A judge may not delegate this responsibility to the presentence report author,
even if the defense does not object to the proposed conditions of probation. We are
cognizant of the burden this requirement imposes on judges facing multiple change-of­
plea proceedings that will collectively consume many hours. But that burden is an
unavoidable consequence of the Alaska Supreme Court’s holding in Roman v. State that
a judge may only impose probation conditions that are “reasonably related to the
rehabilitation of the offender and the protection of the public and [that are not] unduly
restrictive of liberty.”10




   8
        Smith v. State, 349 P.3d 1087, 1095 (Alaska App. 2015).

   9
        Id.

   10
        Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).


                                            –6–                                        2482

      Conclusion
             This Court AFFIRMS the term of imprisonment imposed by the superior
court. This Court REMANDS for further proceedings regarding the imposed probation
conditions, to be held within sixty days. If Beasley then objects to any imposed
condition he shall file a brief within thirty days of the superior court’s order amending
the conditions of probation, and the State shall file responsive briefing thirty days
thereafter. This Court retains jurisdiction.




                                          –7–                                       2482

