Opinion
Court of Appeals No. A-9520.
May 9, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-87-5660 CR.
Donald Renkel Sr., pro se, Anchorage. Marilyn J. Kamm, Assistant Attorney General, Criminal Division Central Office, and David W. Márquez, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Donald Renkel Sr. was found guilty of seven counts of sexually abusing and sexually assaulting his children. Renkel's sentence, in addition to a term of imprisonment, required that he participate in a sexual offender treatment program. After his release, Renkel was not accepted into a sexual offender treatment program because of his "unyielding denial" that he had committed the offenses. Renkel's parole was revoked because he did not participate in a sexual offender treatment program, which was a condition of his sentence.
Renkel filed a pro se motion in his criminal case under Alaska Criminal Rule 35(a), alleging that his sentence was illegal. Renkel argued that the condition of his sentence mandating his participation in sexual offender treatment required him to admit that he sexually abused his children. He argued that this violated his Fifth Amendment right against self-incrimination. Superior Court Judge Larry D. Card denied Renkel's motion. Renkel appealed.
This court accepted Renkel's appeal to decide the limited question of whether Renkel could procedurally challenge the Parole Board's revocation of his parole under Criminal Rule 35(a) on the ground that his sentence was illegal because it required him to participate in a sexual offender treatment program. We conclude that the superior court did not impose an illegal sentence by requiring Renkel to participate in a sexual offender treatment program. Therefore procedurally, Renkel cannot challenge his sentence under Criminal Rule 35(a). Renkel's remedy, if any, is pursuant to Criminal Rule 35.1. We therefore uphold the superior court's order denying Renkel's Criminal Rule 35(a) motion. Factual and procedural background
In 1994, Renkel was convicted of five counts of sexual abuse of a minor in the first degree, one count of sexual assault in the first degree, and one count of sexual abuse of a minor in the second degree. Superior Court Judge Milton Souter imposed a composite sentence of 23 years with 5 years suspended. In addition, Judge Souter imposed a special condition of probation which required Renkel to "participate in an approved sexual offender treatment program as directed by the Department of Corrections."
AS 11.41.434(a)(2)(B).
AS 11.41.410(a)(4)(B).
AS 11.41.436(a)(3)(B).
After serving his sentence of imprisonment, Renkel was released to parole and probation supervision. Renkel's probation officer directed him to participate in a sex offender treatment intake interview with a sex offender therapist approved by the Department of Corrections. But, "due to Mr. Renkel's unyielding denial[,] he was not accepted into the sex offender treatment program." The Parole Board revoked Renkel's parole based upon his failure to comply with the special condition of probation.
Renkel filed a motion under Criminal Rule 35(a), which provides that a "court may correct an illegal sentence at any time." Renkel argued that the special condition of probation which required him to participate in a sex offender treatment program was illegal. Renkel argued that this violated his right against self-incrimination because the probation condition, when applied by the Parole Board, essentially required him to admit his culpability for the crimes for which he had been convicted. Judge Card denied Renkel's motion. Renkel appeals that decision.
Why we conclude that the superior court did not err in denying Renkel's Criminal Rule 35(a) motion
In order to determine if a sentence is "illegal" under Criminal Rule 35(a) "the guiding principle . . . is whether the defendant asserts that the court has imposed a `sentence [that] the judgment of conviction did not authorize.'" Renkel's argument that his sentence is illegal due to the special condition of probation that ordered him to participate in a sex offender treatment program is based upon James v. State. But James does not support Renkel's claim that his sentence was illegal.
Walsh v. State, 134 P.3d 366, 373 (Alaska App. 2006) (quoting Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App. 1984) (brackets added in Walsh)).
75 P.3d 1065 (Alaska App. 2003).
James involved a condition of probation which required James to participate in a sex offender treatment program. When James's probation officer interviewed James to determine if he was amenable to participating in a sex offender treatment program, James invoked his privilege against self-incrimination, denied committing the crimes for which he had been convicted, and refused to talk to the probation officer because his case was on appeal. The superior court revoked James's probation. James appealed the order revoking his probation.
Id. at 1066.
Id. at 1067.
On appeal, we determined that James had legitimately exercised his right against self-incrimination. We pointed out that
James testified at his trial that he did not commit the offenses for which he was convicted. Any statement that James made during therapy admitting to the offenses could be used by the State to prosecute him for perjury. Therefore, James's claim that he faced a realistic threat of self-incrimination is valid. In addition, James still had an application for post-conviction relief pending. If James was successful in that application, he could have obtained a new trial. Any statements James made, particularly statements admitting responsibility for the offenses, could then be used against him. This supports James's position that he had a legitimate Fifth Amendment claim.[]
Id. at 1072.
We concluded that James had a valid Fifth Amendment privilege not to be compelled to discuss the facts surrounding the charges for which he had been convicted, and his probation could not be revoked for invoking this privilege.
Id.
But in James, we never held that the probation condition requiring James to participate in a sex offender treatment program was, in and of itself, illegal. James did not bring his action under Criminal Rule 35(a) and James did not hold that the probation condition was illegal. Rather, under the specific facts of James's case, we concluded that James had a legitimate Fifth Amendment claim and that the superior court could not revoke James's probation based upon his legitimate exercise of his Fifth Amendment rights. We have no basis to make a similar finding in this case.
Valid probation conditions "must be `reasonably related to the rehabilitation of the offender and the protection of the public[,] and must not be unduly restrictive of [the offender's] liberty.'" We have upheld probation conditions similar to the one Renkel challenges as legally imposed. Given Renkel's convictions and the fact that Renkel does not claim that the superior court did not justify the probation condition, he has not raised a claim that the condition of probation was illegally imposed.
Marunich v. State, 151 P.3d 510, 519 (Alaska App. 2006) (quoting Rom an v. State, 570 P.2d 1235, 1240 (Alaska 1977) (brackets in original)).
See Martin v. State, 973 P.2d 1151, 1157-58 (Alaska App. 1999) (explaining findings required to validly impose sex offender treatment as a condition of probation); see also Keiper v. State, Alaska App. Memorandum Opinion and Judgment No. 3228 at 4-5 (Sept. 6, 1995), 1995 WL 17221254 at *2-3 (upholding trial court judgment ordering sex offender treatment as condition of probation as legal because the defendant did not present a ripe claim of self-incrimination).
See Marunich, 151 P.3d at 517, 521-22.
We conclude that Renkel has not shown that the superior court imposed an illegal sentence — i.e., one that the judgment of conviction did not authorize — when it required him to participate in a sex offender treatment program. The superior court did not err in denying Renkel's Criminal Rule 35(a) motion.
The judgment of the superior court is AFFIRMED.