Opinion
A-13518 A-13730 7070
08-23-2023
MICHAEL DEAN HANCOCK, Appellant, v. STATE OF ALASKA, Appellee.
Amanda Harber, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. J. Christopher Darnall, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal in File No. A-13518 from the Superior Court, Third Judicial District Trial Court Nos. 3KN-16-00173 CR & 3AN-16-00385 CR, Kenai, Lance Joanis, Judge. Appeal in File No. A-13730 from the Superior Court, Third Judicial District, Anchorage, Catherine M. Easter, Judge.
Amanda Harber, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
J. Christopher Darnall, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG. JUDGE
In January 2016, Michael Dean Hancock was indicted in Anchorage on seven counts of possession of child pornography and six counts of distribution of child pornography. In February 2016, Hancock was indicted in Kenai on one count of first-degree sexual abuse of a minor, one count of second-degree sexual abuse of a minor, and three counts of unlawful exploitation of a minor, for engaging in sexual penetration with fifteen-year-old A.L. and producing sexually explicit photographs and videos of A.L.Hancock's conduct with A.L. came to light during the investigation that followed the discovery of child pornography at Hancock's residence.
AS 11.61.127 and AS 11.61.125(c), respectively.
AS 11.41.434(a)(3)(B), AS 11.41.436(a)(1), and AS 11.41.455(c)(1), respectively.
Hancock resolved his two open cases with a joint plea agreement. The parties stipulated, as a component of the plea agreement, that the sentence in the Anchorage case would run consecutively to the composite sentence in the Kenai case. Hancock was a first felony offender with no prior convictions.
In the Kenai case, Hancock pleaded guilty to one consolidated count of second-degree sexual abuse of a minor and one consolidated count of unlawful exploitation of a minor. He agreed to a composite sentence of 20 years with 12 years suspended (8 years to serve) and a 10-year term of probation.
In the Anchorage case, Hancock pleaded guilty to one consolidated count of possession of child pornography and stipulated that, under AS 12.55.155(c)(10), his conduct was "among the most serious conduct included in the definition of the offense." As a first felony offender, Hancock was subject to a presumptive sentencing range of 2 to 12 years, and sentencing was open to the court, up to the maximum sentence of 99 years.
Former AS 12.55.125(i)(4)(A) (pre-2019 version).
The superior court in Anchorage (a different judge than the judge who presided over the Kenai case) sentenced Hancock to 12 years with 2 years suspended (10 years to serve), consecutive to the term of imprisonment in his Kenai case (as required by the plea agreement). The court acknowledged that Hancock's prospects for rehabilitation "appear to be good," but, noting the volume and graphic nature of the child pornography images that Hancock possessed, the court found that a period of isolation was necessary.
The court also imposed a 10-year term of probation in the Anchorage case, but the court ran this period of supervision concurrently to Hancock's term of probation in the Kenai case.
On appeal, Hancock challenges two of the special probation conditions imposed in the Kenai case as improperly restricting his constitutional rights, and he asks this Court to correct another probation condition to conform with the superior court's oral ruling. Hancock also challenges his sentence in the Anchorage case - arguing that the superior court failed to consider the sentence already imposed in the Kenai case and that the court imposed an excessive sentence.
For the reasons set out in this opinion, we reject Hancock's constitutional challenges to his probation conditions, but we remand the Kenai case to the superior court to correct Special Probation Condition No. 1 in line with the parties' agreement and the court's ruling. We also affirm Hancock's sentence in the Anchorage case.
Hancock's challenges to the probation conditions in the Kenai case
Hancock first challenges two of his special conditions of probation in the Kenai case. The contested probation conditions (1) prohibit Hancock from opening or maintaining an account on "social networking sites" such as Facebook, LinkedIn, or Twitter without prior approval from his probation officer, and (2) require Hancock to provide his login information and password for any such accounts to his probation officer upon request. Hancock argues that these conditions unduly restrict his First Amendment rights and improperly delegate authority to determine access to social networking sites to his probation officer.
In support of his argument, Hancock relies on our decision in Dalton v. State. But in Dalton, we found that a complete internet ban, subject only to the unconstrained discretion of a probation officer, unduly restricted Dalton's liberty. We encouraged the trial court on remand to consider less restrictive alternatives to limit Dalton's internet access.
Dalton v. State, 477 P.3d 650 (Alaska App. 2020).
Id. at 655.
Id. at 656. Hancock also relies on Packingham v. North Carolina, 582 U.S. 98 (2017), in which the United States Supreme Court invalidated a law prohibiting a registered sex offender - even a sex offender who had completed their sentence and term of supervision - from accessing commonplace social networking sites. But the law in Packingham precluded access to these social networking sites altogether, without any mechanism for obtaining permission to access them. Packingham is therefore distinguishable from this case.
Here, Hancock's probation conditions only narrowly restrict his access to "commonplace social networking sites," not the entire internet. The probation conditions also set out a specific definition for such sites (including examples), allow Hancock to use these sites with probation officer approval, and provide a mechanism for Hancock to seek judicial review of his probation officer's decision to limit his access to these platforms.
Although Hancock raised concerns about the definition of "social networking site" in the superior court, he does not challenge that definition, or the list of examples, on appeal. In the superior court, the prosecutor emphasized that the definition excluded websites such as "washingtonpost.com," which facilitate communication among users only as a secondary function and are outside the common understanding of social networking. See Packingham, 582 U.S. at 106-07 (suggesting that websites like washingtonpost.com, amazon.com, and webmd.com fall outside the definition of "commonplace social media websites").
Hancock asserts that there is no nexus between his behavior in either the Anchorage or Kenai case and the limitation on his access to social networking sites because he did not use such sites in the commission of any of his offenses. However, the superior court found that the narrow limitation on Hancock's use of social networking sites - not a total ban, but a requirement to seek prior probation officer approval - was reasonably related to Hancock's rehabilitation and the protection of the public in light of the circumstances of his cases.
The court explained that, given the "graphic nature" of the over 47,000 files of child pornography found on Hancock's computers, the fact that Hancock engaged in a sexual relationship with a minor, and the fact that social media sites primarily facilitate meetings and relationships between people as well as the digital transfer of photos and videos, it was reasonable to allow Hancock's probation officer to pre-approve and monitor his use of social networking sites to ensure that Hancock was not using the platforms inappropriately.
When a probation condition implicates a defendant's constitutional rights, a court must apply special scrutiny to ensure that the condition is "narrowly tailored to avoid unnecessary interference with the constitutional right at issue." The court must "affirmatively consider and have good reason for rejecting" any less restrictive alternatives which might be available. Here, the superior court engaged in a thorough review and analysis of the proposed probation conditions in light of the facts of this case, and we conclude that the court did not err in imposing the conditions. We note that, as the conditions provide, Hancock may seek judicial review if he believes that his probation officer is limiting his access to commonplace social networking sites in an overly restrictive or unlawful manner.
Galindo v. State, 481 P.3d 686, 691 (Alaska App. 2021) (quoting Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015)).
Id. (quoting Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995)).
See Packingham, 582 U.S. at 107 (noting that social media sites are for many "the principal sources for knowing current events, checking ads for employment, [and] speaking and listening in the modern public square").
Finally, Hancock contends that, while the parties agreed to strike the words "or other places frequented by the victim" from the special condition of probation that prevents Hancock from entering A.L.'s residence or place of employment, and the court agreed to do so, the judgment still contains this language. Hancock asks us to direct the Kenai superior court to issue an amended judgment deleting the language, and the State does not oppose this request. We therefore remand this case to the Kenai superior court to issue an amended judgment striking the phrase "or other places frequented by the victim" from Special Probation Condition No. 1.
Hancock's challenges to the sentence imposed in the Anchorage case
Hancock next argues that the Anchorage court erred in failing to consider the term of incarceration imposed in the Kenai case when crafting his sentence, and that the sentence imposed in the Anchorage case is excessive.
Hancock was sentenced first in the Kenai case. As we previously noted, he pleaded guilty to one consolidated count of second-degree sexual abuse of a minor and one consolidated count of unlawful exploitation of a minor, both involving A.L., and he received an agreed-upon composite sentence of 20 years with 12 years suspended (8 years to serve) and a 10-year term of probation. He was later sentenced in the Anchorage case after pleading guilty to one consolidated count of possession of child pornography.
At a presentencing hearing in the Anchorage case, the Anchorage court expressed concern about the possible overlap between the Kenai and Anchorage cases and the risk of double punishment. In particular, the court noted that Hancock was separately convicted in the Kenai case for the production of images of A.L. (i.e., the unlawful exploitation conviction), and the court did not want to punish Hancock twice for possessing these same images. The court asked the parties to brief the issue.
At sentencing, the court found that Hancock's conduct in Kenai was "totally unrelated" to the Anchorage case - except for the relatively small number of images of A.L. found on Hancock's devices. At the same time, the court declared that it would "not sentence [Hancock] twice for the conduct that he's already been sentenced to." The court then proceeded to present its sentencing remarks and impose sentence in the Anchorage case - 12 years with 2 years suspended (10 years to serve, consecutive to the sentence imposed in the Kenai case), and a 10-year term of probation (to run concurrently with the period of probation in the Kenai case).
Of the over 47,000 files of child pornographyrecovered, approximately 120 files were of A.L.
On appeal, Hancock argues that, in stating that the Kenai and Anchorage cases were "totally unrelated," the court "refus[ed] to consider the Kenai sentence in determining an appropriate sentence in the Anchorage case." But it is clear from the context of the court's remarks and the presentence litigation that the court's comments expressing an intent to keep the two sentences separate were aimed only at ensuring that Hancock was not doubly punished for the images of A.L. That is, the court was mindful of not aggravating Hancock's sentence in the Anchorage case for the images that formed the basis of the unlawful exploitation conviction in Kenai but were also found among the images of child pornography on Hancock's computer.
Cf. Juneby v. State, 641 P.2d 823, 842 (Alaska App. 1982) (holding that the superior court erred in finding that the sexual assault was "among the most serious" based in part on the fact that the defendant unlawfully entered the victim's home to commit the assault since the defendant was separately convicted and sentenced for burglary).
We agree with Hancock that when a defendant is already serving a term of imprisonment at the time of sentencing, that earlier term of imprisonment is relevant to the sentencing judge's determination of how much additional time is necessary to meet the Chaney criteria. That is, when a previously imposed sentence is brought to the sentencing court's attention by the parties, the court must consider the total amount of time a defendant will be incarcerated to ensure that the defendant's liberty is "restrained only to the minimum extent necessary to meet the Chaney criteria."
See Davis v. State, 2018 WL 6119900, at *2 (Alaska App. Nov. 21, 2018) (unpublished) ("When a sentence is consecutive to a sentence imposed by a court of another jurisdiction, the judge must consider the cumulative impact of the combined sentences."); see also McCombs v. State, 754 P.2d 1129, 1130-31 (Alaska App. 1988) (noting that when a state sentence is imposed consecutively to a federal sentence, it is appropriate to review the overall length of the combined sentences in deciding whether the state sentence is excessive); Jeter v. State, 393 P.3d 438, 441-42 (Alaska App. 2017) (explaining that, because of the requirement of consecutive sentencing in probation revocation proceedings for new crimes, any sentence already imposed in a related case may be pertinent to the judge's sentencing decision).
Lee v. State, 2019 WL 856725, at *2 (Alaska App. Feb. 20, 2019) (unpublished) (citing Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985)) ("When a defendant is already serving other terms of imprisonment, those prior sentences are relevant to the judge's assessment of the appropriate sentence in the case before the judge."); Smith v. State, 187 P.3d 511, 520-29 (Alaska App. 2008) (treating the terms of imprisonment imposed in six different cases across two sentencing hearings as a composite sentence); ABA Standards for Criminal Justice: Sentencing § 18-6.5(g) (3d ed. 1994) ("In sentencing an offender who is subject to service of a prior sentence, a sentencing court should take into account the unexecuted part of the prior sentence in shaping a consolidated set of sentences.").
But in this case, the Kenai sentence was repeatedly brought to the Anchorage court's attention. The parties discussed the sentence that had already been imposed in the Kenai case in their sentencing memoranda, filed prior to the sentencing hearing in the Anchorage case. And Hancock's attorney reminded the court that Hancock was "not time served on th[e] Kenai case" (i.e., that he still had time remaining to serve on the sentence imposed in that case) and urged the court to impose a sentence in the Anchorage case that would "complement" rather than "thwart any of the sentencing goals that are at issue in [the Kenai] case."
We therefore have little reason to think that the court did not take the cumulative impact of the sentences into account in fashioning an appropriate composite term in the Anchorage case. Indeed, the court imposed a 10-year term of probation in the Anchorage case, but the court expressly ran this period of supervision concurrently to Hancock's term of probation in the Kenai case.
In fact, we note that the court crafted a sentence in the Anchorage case that would result in a composite active sentence of 18 years across both the Kenai and Anchorage cases - which is the same amount of active time proposed by the State in the Anchorage case alone.
And given this record, we cannot say that the superior court was clearly mistaken when it imposed a sentence of 12 years with 2 years suspended for the consolidated count of possession of child pornography, particularly in light of the composite sentence across both of Hancock's cases. Hancock agreed that his conduct in the Anchorage case was among the "most serious" included in the definition of the offense, and the Anchorage court expressly found it to be a "very serious case." The court emphasized that the nature and volume of images Hancock possessed - over 47,000 - "certainly went beyond what we would typically see in a typical child pornography case." The court explained that this was not "simply a situation where he just downloaded a bunch of child pornography" because Hancock had categorized the images he downloaded into specific folders, one of which was titled "Notorious" and contained "some 400 head shots of young females, some of whom had been victims of child abduction, rape, or even murder." The court noted that Hancock had even made the screen saver on his laptop a scrolling set of images of child pornography.
See McClain v. State, 519 P.2d 811, 814 (Alaska 1974) (explaining that appellate courts employ the "clearly mistaken" standard when reviewing sentencing decisions).
See AS 12.55.155(c)(10).
Based on these findings, the superior court concluded that it was important that "some isolation [was] imposed in this case." The court's findings are supported by the record, and the court's sentencing decision does not fall outside of the "permissible range of reasonable sentences." We therefore conclude that the sentence imposed is not clearly mistaken.
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (recognizing that the "clearly mistaken" standard contemplates that different reasonable judges, confronted with identical facts, will differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence that falls within a "permissible range of reasonable sentences" (quoting State v. Wentz, 805 P.2d 962, 965 (Alaska 1991))).
Conclusion
We REMAND Case No. 3KN-16-00173 CR to the Kenai superior court to issue an amended judgment, striking the language "or other places frequented by the victim" in Special Probation Condition No. 1. We otherwise AFFIRM the judgment of the Kenai superior court.
We AFFIRM the judgment of the Anchorage superior court in Case No. 3AN-16-00385 CR.