Opinion
A-13804
12-28-2022
COSTIA INGA, Appellant, v. STATE OF ALASKA, Appellee.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Heather Stenson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 3AN-00-10074 CR Third Judicial District, Kodiak, Steve W. Cole, Judge.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Heather Stenson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE
The superior court revoked Costia Inga's probation based on his failure to participate in sex offender treatment and his failure to report to his probation officer as directed. Inga now appeals his revocation, raising the following claims: (1) the superior court erred when it ruled that Inga did not have a Fifth Amendment right to refuse to participate in sex offender treatment because he had exhausted his state and federal post-conviction remedies; (2) the superior court erred when it found that Inga violated his duty to report to his probation officer as directed; (3) the superior court erred in conducting the adjudication hearing by videoconference rather than in person; (4) the superior court erred in failing to modify Inga's bail; and (5) the sentence imposed for the probation violations was excessive.
For the reasons explained here, we reject all of these claims of error and affirm the superior court's judgment.
Factual background and prior proceedings
In 2002, Inga was convicted, following a jury trial, of three counts of first-degree sexual assault and one count of second-degree sexual assault for sexually assaulting his cousin. Inga was sentenced to a composite sentence of 19 years, 6 months, and 2 days with 4 years suspended (15 years, 6 months, and 2 days to serve) and 5 years of probation. As part of his probation conditions, he was ordered to complete sex offender treatment.
AS 11.41.410(a)(1) and AS 11.41.420(a)(1), respectively.
In 2012, while on probation, Inga committed a new criminal offense - third-degree weapons misconduct. Inga ultimately pleaded guilty to one count of the weapons offense and the State dismissed another count in exchange for a 2-year sentence. Inga also admitted that he violated his probation, although no suspended time was imposed for the violation.
AS 11.61.200.
A second petition to revoke his probation was filed in 2018 for refusing to take a polygraph examination; this petition was later withdrawn.
A third petition to revoke his probation was filed in 2019, alleging that Inga failed to participate in and successfully complete an approved sex offender treatment program. The court revoked Inga's probation, imposing 30 days of his suspended time, and ordered Inga to obtain a sex offender assessment and treatment.
When Inga failed to obtain a sex offender assessment and failed to participate in treatment, an anticipatory fourth petition to revoke probation was filed. Inga subsequently obtained the sex offender assessment, and was recommended treatment. Inga then began treatment, but he continued to deny any responsibility for the sexual assault for which he was convicted; he also denied a prior sexual assault that he was alleged to have committed. Although he was compliant in attending the virtual sessions and completing his homework, Inga used the treatment sessions and his homework to relitigate the merits of his case.
In 1997, Inga was charged with sexual assault for breaking into a home and sexually assaulting his much younger niece who was intoxicated. Inga pleaded guilty to burglary, and the sexual assault charge was dropped as part of the plea agreement. Inga v. State, 2004 WL 719626, at *1 (Alaska App. Mar. 31, 2004) (unpublished).
The sex offender treatment was online because of the COVID-19 pandemic.
After five months of no progress in treatment, the treatment providers asked Inga to sign a behavioral contract. This contract was a standard containment procedure for offenders who were not progressing in their treatment. By signing the behavioral contract, Inga would be acknowledging that he bore responsibility for his offense, and he would be indicating his willingness to continue with treatment. Inga was told that failure to sign the contract would result in discharge from sex offender treatment. Inga refused to sign, and he was subsequently discharged from sex offender treatment in August 2020 for poor progress and unwillingness to participate.
At the probation hearing, the sex offender treatment provider testified that such behavioral contracts had proven effective in the past with other offenders. She also testified that Inga was "atypical" in the depth and insistence of his denial.
After Inga was discharged from sex offender treatment, the State supplemented the fourth petition to revoke probation alleging that Inga failed to participate in and complete the sex offender treatment. In a second supplement, the State also added an allegation related to Inga's failure to report to his probation officer.
For most of his probation, Inga had been allowed to report to probation remotely from Akhiok by phone, fax, mail, or email. However, after Inga was discharged for failure to progress in treatment, the reporting requirements were changed to require Inga to report in person to the probation office in Kodiak between November 1 and November 10, 2020. Inga requested that the reporting requirement be changed back to remote reporting because of the COVID-19 pandemic and because he was the primary caretaker for his father, who had dementia. This request was denied. Inga subsequently failed to report by any means (in person, phone, mail, fax, or email) between November 1 and November 10, 2020.
Because of the COVID-19 pandemic, the adjudication portion of the probation revocation proceeding was conducted over Zoom videoconference. However, the disposition portion of the proceedings was conducted in person. Inga's probation officer and sex offender treatment provider testified at the adjudication and disposition hearings. Inga did not testify at the adjudication hearing, although he gave an allocution at the disposition hearing.
On appeal, Inga argues that he did testify at the adjudication hearing because the court responded to an interjection he made and asked the witness to respond to it as well. We do not consider this to be testimony because it was not under oath nor was Inga subject to cross-examination.
At the adjudication hearing, pro tern Superior Court Judge Steve Cole found by a preponderance of the evidence that Inga violated the terms of his probation by failing to participate in and successfully complete his sex offender treatment program and by failing to report as directed between the dates of November 1 and November 10, 2020. The court found no merit to Inga's contention that he had a Fifth Amendment right not to participate in sex offender treatment because the court found Inga had already exhausted all of his state and federal post-conviction remedies by the time treatment began.
At the disposition hearing, the sex offender treatment provider stated that, as an untreated sex offender, Inga remained a danger to the public. She indicated that Inga's risk of re-offense was increased by the lack of law enforcement in the remote area where he lived, Inga's lack of accountability, his lack of responsibility, his denial of his crime, and his belief that he did not need to change. She further stated that Inga had consistently shown himself to be "unamenable to treatment" and that he would not be welcome back in sex offender treatment unless he demonstrated a willingness to change and to meaningfully engage in treatment.
Inga's probation officer stated his opinion that Inga would not be successful if he was returned to probation because, unlike most offenders, Inga was not willing to engage in treatment. The prosecutor agreed that additional probation would be ineffective and argued that the court should impose the remainder of Inga's suspended time (which was 3 years and 11 months).
Inga's attorney acknowledged that it was "clear that continued supervision on probation [was] not going to be successful," but she argued that the court should not impose all of the remaining suspended time. Inga's attorney emphasized Inga's past success on probation, including his compliance with alcohol treatment.
In his allocution, Inga persisted in his belief that he had a Fifth Amendment right not to admit to the crime for which he had been convicted, and he stated that he would not participate in sex offender treatment in order to protect that right. He accused the victim of perjury and detailed his various legal challenges to his conviction. He also claimed (incorrectly) that these legal challenges were still ongoing because he had recently filed a § 1983 case in federal court; he indicated, however, that he would engage in sex offender treatment if the federal court denied his § 1983 claims.
See 42 U.S.C. § 1983. Inga apparently named nineteen different defendants in this federal action, including attorneys who worked for the State's District Attorney's Office, a state expert in Inga's underlying criminal case, Alaska Parole Board members, parole or probation officers, and Department of Corrections' time and accounting officers.
In response, the superior court reiterated that Inga did not have a Fifth Amendment right to refuse to participate in sex offender treatment because he had already exhausted all of his legitimate avenues for post-conviction relief. After reviewing Inga's criminal history, his failure at sex offender treatment, and the Chaney criteria, the court revoked Inga's probation and imposed 3 years and 6 months of the remaining suspended time.
Inga now appeals.
Why we uphold the superior court's ruling that Inga had exhausted his state and federal post-conviction remedies and no longer had a Fifth Amendment right to refuse to participate in sex offender treatment
The Fifth Amendment of the United States Constitution and Article I, Section 9 of the Alaska Constitution protect a person in a criminal case from being compelled by the government to be a witness against oneself.
In James v. State, we held that a criminal defendant convicted of a sexual offense has a constitutional privilege to refuse to discuss their offense in sex offender treatment if admitting responsibility for the crimes for which they were convicted would pose a "real or substantial hazard" of incrimination. We further held that a "real or substantial hazard" of incrimination exists when a defendant's post-conviction relief case is still pending.
James v. State, 75 P.3d 1065, 1068, 1072 (Alaska App. 2003).
Id. at 1068, 1072.
Here, however, Inga exhausted all of his state and federal avenues for post-conviction relief by the time he was required to participate in sex offender treatment.
To illustrate that Inga had exhausted all of his state and federal avenues for post-conviction relief at the time he was required to participate in treatment, the procedural history of Inga's case is as follows: Inga was convicted in 2002. He appealed his convictions to this Court, which issued a memorandum opinion affirming his convictions in 2004. Inga then filed a petition for hearing with the Alaska Supreme Court, which was denied. Four years later, Inga filed an application for post-conviction relief in superior court. The application was dismissed in 2011. Six months after the dismissal of his first application, Inga filed a second application for post-conviction relief alleging ineffective assistance of his first post-conviction relief counsel (a Grinols application). The Grinols application was originally dismissed as untimely. Inga appealed, and we issued an unpublished decision reversing the superior court's dismissal. The reopened Grinols application was subsequently dismissed in 2014. Inga did not appeal this dismissal.
Inga v. State, 2004 WL 719626, at *1 (Alaska App. Mar. 31, 2004) (unpublished).
Grinols v. State, 74 P.3d 889, 896 (Alaska 2003).
Inga v. State, 2013 WL 1092711, at *2 (Alaska App. Mar. 13, 2013) (unpublished).
Five years later, in January 2019, the State filed a third petition to revoke Inga's probation based on his failure to engage in and complete sex offender treatment. Shortly after the court ordered Inga to obtain a sex offender assessment and engage in treatment, Inga filed a petition for habeas corpus in federal court. That petition was dismissed with prejudice as untimely. (It was more than thirteen years too late). About five months after Inga's federal habeas petition was dismissed, Inga finally obtained a sex offender assessment in February 2020 and began treatment. He was discharged in August 2020 for poor progress and unwillingness to participate. Thus, by the time Inga began treatment in 2020, he had already exhausted all of his state and federal avenues for post-conviction relief. Indeed, throughout the time that Inga was in sex offender treatment, he had no pending cases related to the convictions that led to his probation.
It is true that shortly after Inga was discharged from treatment, he filed a § 1983 action in federal court against various people involved in his case, including multiple prosecutors. But, as Inga concedes in his reply brief, a successful § 1983 action does not result in a criminal retrial. Indeed, it is well-settled under federal law that a prisoner may not bring a claim under 42 U.S.C. § 1983 that collaterally attacks the prisoner's state court conviction or sentence unless the prisoner first establishes that the underlying conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."
Heck v. Humphrey, 512 U.S. 477, 487 (1994).
In other words, the § 1983 action was procedurally barred and could not be used to reverse Inga's convictions or obtain a retrial. It therefore did not provide a basis for any Fifth Amendment right to refuse to participate in sex offender treatment.
Accordingly, we conclude that the superior court did not err when it ruled that, by the time Inga finally began participating in sex offender treatment, he no longer had a Fifth Amendment right to refuse to participate because he had already exhausted all of his state and federal avenues for post-conviction relief.
Why we affirm the superior court's decision to hold the adjudication hearing by videoconference
In the superior court proceedings, Inga requested that the adjudication hearing be held in person despite the limitations on in-person hearings that had been imposed in response to the COVID-19 pandemic. Inga also requested that the hearing be delayed because he did not want to travel during the pandemic. The superior court denied both of these requests, and conducted the adjudication hearing by Zoom videoconference.
In response to the COVID-19 pandemic, the Alaska Supreme Court issued an order that authorized presiding trial judges to require attorneys and parties to appear by videoconference, except for evidentiary hearings and trials. See Supreme Court Order No. 1957, at 4 (dated Mar. 19,2020; eff. Mar. 13,2020). The presiding judges subsequently issued a statewide order, requiring that all non-jury criminal hearings (excepting sentencing and evidentiary hearings) be conducted by telephone or videoconference. Third Presiding Judges' Statewide COVID-19 Pandemic Administrative Order 3 (May 29, 2020). This order did allow judges to grant in-person hearings, provided a defendant timely showed good cause. Id. Inga never argued that he had good cause to justify an in-person hearing, and he similarly does not argue on appeal that he had good cause.
On appeal, Inga argues that the failure to hold an in-person adjudication hearing was prejudicial error. But Inga fails to articulate any meaningful difference between the in-person hearing he requested and the Zoom videoconference hearing that he received. The record indicates that there were no technological difficulties or interruptions during the proceedings, and the court made clear that it could "see Mr. Inga just fine. . . . [H]is demeanor and everything."
Relying on Whitesides v. State, Inga argues that the hearing should have been in person in case he decided to testify. In Whitesides, the Alaska Supreme Court held that conducting administrative driver's license revocation proceedings by telephone violated a motorist's right to due process because the hearing officer was unable to view the motorist's demeanor when he testified. But Whitesides involved a telephonic hearing rather than a videoconference hearing and its applicability to Inga's case is therefore questionable. In any event, Inga did not testify at the adjudication hearing. Nor did he ever assert that the hearing should be in person because he might testify.
Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1137-39 (Alaska 2001).
Several other courts have concluded that videoconference systems like Zoom are able to sufficiently uphold a party's appearance rights. See, e.g., Liu v. State Farm Mut. Auto. Ins. Co., 507 F.Supp.3d 1262, 1265 (W.D. Wash. 2020) ("[M]odern videoconferencing technology allows for near instantaneous transmission of testimony with no discernable difference between it and 'live' testimony, thereby allowing a juror to judge credibility unimpeded."); In re Vioxx Prods. Liab. Litig., 439 F.Supp.2d 640, 644 (E.D. La. 2006) (finding that videoconferencing satisfies the goals of live, in-person testimony, namely because it allows the jury to observe the witness and "his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration" (citation omitted)); In re RFC & ResCap Liquidating Tr. Action, 444 F.Supp.3d 967, 971 (D. Minn. 2020) ("Given the speed and clarity of modern videoconference technology, where good cause and compelling circumstances are shown, such testimony 'satisfies the goals of live, in-person testimony and avoids the shortcomings of deposition testimony.'" (citation omitted)).
Inga's other claims of prejudice are wholly speculative. He asserts, for example, that he was unable to communicate privately with his attorney because he was not in the same room with her. But neither Inga nor his attorney ever requested that they be allowed to speak privately during the hearing. Moreover, as the State points out, there were multiple ways that such a request could have been accommodated technologically if one had been made. Arrangements could have been made for Inga and the attorney to meet in a separate Zoom break-out room or they could have communicated during the hearing through a separate phone call, private text, or email. Because Inga never requested to speak to his attorney privately during the hearing, the efficacy of such methods remained untested.
Lastly, we note that the emergency orders in place at the time had a process by which a defendant could assert good cause to have a hearing in person, notwithstanding the safety measures in place because of the COVID-19 pandemic.Inga did not avail himself of this process in the superior court; nor has he articulated good cause on appeal for why his adjudication hearing should have been held in person.
See Third Presiding Judges' Statewide COVID-19 Pandemic Administrative Order 3 (May 29, 2020) ("The public, and all attorneys, parties, witnesses, and other participants in non-jury criminal hearings, and delinquency hearings, shall appear by telephone or videoconference unless the trial court grants a timely request to have one or more persons appear in person for good cause shown.").
Given the emergency conditions caused by the COVID-19 pandemic, the technological capabilities of Zoom videoconferencing, and the absence of any colorable claim of prejudice, we find no error in the superior court's decision to hold the adjudication hearing by videoconference rather than in person.
Why we uphold the superior court's finding that Inga violated his duty to report between November 1 and November 10, 2020
Following Inga's discharge from sex offender treatment, Inga's probation officer changed his reporting requirements to in-person. At the adjudication hearing, the superior court found that Inga had violated his probation by failing to report by any means (in person, by fax, by mail, by email, or by phone) between November 1 and November 10, 2020. This finding is supported by the record, and Inga does not challenge the finding as clearly erroneous. Instead, Inga points out that he had a telephone conversation with his probation officer sometime before November 1, during which he asked the probation officer to reconsider the in-person reporting requirement. (The probation officer declined to do so.) Inga argues that the superior court should have credited the earlier telephone conversation as fulfilling his reporting requirement, even though he admits that the call did not take place during the reporting period. We find no merit to this argument, and we reject this claim of error on appeal.
Meyer v. State, 368 P.3d 613, 615 (Alaska App. 2016) (stating that appellate courts review the superior court's findings of fact under the "clearly erroneous" standard of review).
Why we agree with the State that Inga 's bail argument is moot
Inga argues that the superior court should have modified his bail, and he asserts that doing so would have made it easier for him to travel to Kodiak and attend the adjudication hearing in person. The State contends that this argument is moot. We agree. If Inga had wanted to appeal the bail order in his case, he needed to do so at the time when the bail order was still in effect. Having failed to do so, he has waived this claim of error related to his bail.
See AS 12.30.030(a).
See Martin v. State, 517 P.2d 1389, 1391 (Alaska 1974) (stating that an appeal regarding the denial of bail should be "promptly filed," since the Alaska procedures for review of a denial of bail are "designed to ensure speedy consideration at the appellate level").
Why we conclude that the superior court was not clearly mistaken in imposing 3 years and 6 months for Inga's probation violations
When a defendant violates probation, the sentencing court must consider the Chaney sentencing criteria when determining how much suspended time, if any, should be imposed. Even in circumstances where the decision has been made to terminate probation, the sentencing court cannot automatically reinstate all previously suspended jail time. The court must instead consider "all available sentencing evidence, including information concerning the defendant's background, the seriousness of the original offense, the nature of the defendant's conduct while on probation, and the seriousness of the violations that led to the revocation."
Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990).
DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997).
Toney, 785 P.2d at 903; Betzner v. State, 768 P.2d 1150, 1155-56 (Alaska App. 1989) ("[W]hen a defendant violates probation, the court must apply the Chaney criteria, emphasizing the original offense, the offender, and the defendant's intervening conduct.").
Here, the court carefully reviewed the facts underlying the original sexual assault, which was very serious and involved Inga taking advantage of a much younger, intoxicated female relative. The court also found that there was "strong, almost overwhelming evidence" that, notwithstanding his vociferous denials, Inga had committed this sexual assault as well as the earlier 1997 sexual assault that also involved a much younger, incapacitated female relative. The court then described Inga's refusal to meaningfully engage in treatment and the fact that so many years after his conviction he remained an untreated sex offender and a danger to the community.
The court noted that prior sentencings had focused on rehabilitation, but it was now clear that "[Rehabilitation is not going to happen," and rehabilitation was therefore no longer the focus of sentencing. Instead, the court focused on isolation, general deterrence, specific deterrence, and community condemnation. Following lengthy remarks summarizing Inga's case and conduct, the court revoked Inga's probation and imposed 3 years and 6 months to serve out of the 3 years and 11 months of suspended time that remained on his sentence.
Inga now appeals his sentence as excessive. He argues specifically that the superior court should have revoked no more than 6 months so that he could have been returned to probation and had the opportunity to engage in sex offender treatment. He points to the fact that, during his allocution, he said that he would be willing to engage in sex offender treatment once his § 1983 case was over. But it is clear that the court did not credit this claim given Inga's persistent refusal to accept responsibility and meaningfully engage in treatment, even after he had been told that he no longer had a valid Fifth Amendment right to assert.
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that different reasonable judges, confronted with identical facts, will differ on what constitutes an appropriate sentence and that society is willing to accept these sentencing discrepancies so long as the sentencing decision falls within a permissible range of reasonable sentences.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erikson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Having independently reviewed the record in this case, we conclude that the sentence imposed here is not clearly mistaken.
Conclusion
The judgment of the superior court is AFFIRMED.