Opinion
Court of Appeals No. A-10681 Trial Court No. 3AN-07-12249 CI No. 5783
12-21-2011
KENNETH WOOD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Contract Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marilyn J. Kamm, Assistant Attorney General, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: Jane B. Martinez, Contract Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marilyn J. Kamm, Assistant Attorney General, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, Bolger, Judge, and Andrews, Senior Superior Court Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
[Mannheimer, Judge, not participating.]
BOLGER, Judge.
Kenneth Wood filed an application for post-conviction relief challenging several of his special conditions of mandatory parole, including conditions requiring evaluations for sex offender treatment, substance abuse treatment, and mental health treatment. The State moved for summary disposition, and Superior Court Judge Philip R. Volland granted the motion. We conclude that Wood does not have a valid claim that sex offender treatment would violate his Fifth Amendment privilege and that the other conditions are reasonably related to his rehabilitation.
Background
In 1984, Wood was convicted of two counts of first-degree sexual assault, one count of fourth-degree assault, and one count of resisting arrest. In 2007, the parole board imposed several special conditions on Wood's parole release. The conditions of parole included requirements for sex offender evaluation and treatment, periodic polygraph testing, mental health evaluation and treatment, substance abuse evaluation and treatment, and restrictions on alcohol consumption and possession.
Wood filed an application for post-conviction relief. Wood alleged that the Fifth Amendment protected him from discussing the offenses for which he was convicted because he testified at trial that he was innocent. Wood also alleged that the parole conditions related to substance abuse treatment, mental health treatment, and alcohol possession did not have any nexus to his underlying conviction or background.
Judge Volland granted the State's motion for summary disposition of Wood's application. Wood now appeals the superior court's decision.
Discussion
Wood's sex offender treatment conditions do not violate his Fifth Amendment privilege against self-incrimination.
Wood argues on appeal that he has a Fifth Amendment right to not discuss his offenses because he maintained his innocence during his trial. Wood claims that he cannot be forced, as a condition of his parole, to admit responsibility for the conduct underlying his conviction.
Parolees have a limited Fifth Amendment right to not discuss their offenses as part of their sex offender treatment. To establish a valid Fifth Amendment claim, "parties invoking the privilege have the burden of demonstrating a valid reason to believe that their compelled statements might incriminate them." The State "may not revoke, or threaten to revoke, probation [or parole] for a valid invocation of the [Fifth Amendment] privilege." However, a "parolee cannot validly invoke the constitutional privilege ... when there is 'no real or substantial hazard of incrimination.'"
James v. State, 75 P.3d 1065, 1068 (Alaska App. 2003); see also Gyles v. State, 901 P.2d 1143, 1148 (Alaska App. 1995).
Gyles, 901 P.2d at 1148 (indicating the rule that "the state may not revoke, or threaten to revoke, probation for a valid invocation of the [Fifth Amendment] privilege" applies "equally to parole").
Id. at 1148 (quoting State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993)).
Wood has the burden of showing that he faced a real or substantial threat of incrimination from discussing the offenses for which he was convicted. But Wood's conviction has been final since 1987. He no longer has any risk of jeopardy for those crimes. Under these circumstances Wood has failed to show that he has a valid claim of privilege.
See Wood v. State, 736 P.2d 363 (Alaska App. 1987).
See Gyles, 901 P.2d at 1149.
Moreover, Wood has failed to show that he could be subject to a perjury charge for contradicting his testimony at trial. The statute of limitations for perjury prosecutions is five years. And Wood's trial occurred approximately twenty-five years ago. Even if Wood committed perjury at his trial by claiming his innocence, he is no longer subject to prosecution.
AS 12.10.010(b)(2).
Wood has failed to meet his burden of showing that he faces any real or substantial threat of prosecution from discussing the crimes for which he stands convicted. We conclude that Wood does not have a Fifth Amendment right to not discuss the offenses for which he was already convicted.
Wood's parole conditions are reasonably related to his rehabilitation and the protection of the public.
Wood argues that some of his other special conditions of parole are not reasonably related to his rehabilitation or the protection of the public, and that there is an insufficient nexus between his parole conditions and his underlying offense. Wood's challenge focuses on the special conditions requiring a mental health evaluation and treatment, a substance abuse evaluation and treatment, and the restriction on his ability to consume or possess alcohol.
The parole board may impose supplemental conditions of parole that "reasonably relate[] to the parolee's offense, prior record, prior behavior, medical condition, current circumstances, or perceived risk to the community." Parole conditions "must be reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty." We review the parole board's exercise of its discretionary authority using the "reasonable basis" standard "to insure that its determinations are supported by evidence in the record as a whole and there is no abuse of discretion."
22 Alaska Administrative Code (AAC) 20.205(a).
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
Covington v. State, 938 P.2d 1085, 1090-91 (Alaska App. 1997).
In Allain v. State, the defendant challenged a special condition of probation requiring him to abstain from consuming alcohol. But the sentencing judge noted that "Allain has, by his own account, been drinking regularly since he was thirteen years old." This court concluded that, under the circumstances, the superior court "could reasonably have concluded that Allain's chances for successfully addressing his problems with immaturity, anger, and impulsiveness could be enhanced by eliminating the potential distraction and complication that might be posed if Allain developed an incipient problem with alcohol abuse." Under those circumstances, this court held that the judge did not abuse his discretion when he determined that the special condition related to alcohol was reasonably related to the goal of rehabilitation.
810 P.2d 1019, 1022 (Alaska App. 1991).
Id.
Id.
Id.
In this case, Wood's offense did not appear to be related to alcohol or substance abuse. But Wood does appear to have a history of substance abuse. The presentence report stated that Wood had tried many types of illegal drugs, that he used marijuana regularly, and that he became strung out on "speed" for a period of about eight months. And while he was incarcerated, Wood had several infractions for possessing controlled substances and refusing to provide urine specimens. Under these circumstances, the parole board could reasonably conclude that Wood's chances of successful rehabilition could be enhanced by "eliminating the potential distraction and complication" that could be posed if Wood continued to have issues with substance abuse.
Id.
Similarly, the parole board did not abuse its discretion in imposing the mental health evaluation and treatment conditions. Wood argues that he does not have a history of mental health problems. But Wood's offense involved threatening the victim with a gun, grabbing her by the hair, and repeatedly slamming her head against the dash board before returning to her apartment and sexually assaulting her. During his imprisonment in this case, Wood minimized and rationalized his infractions and continually disobeyed institutional rules. And in 2008, psychological testing indicated that Wood has "strong antisocial personality traits, with a mild tendency towards psychopathic behavior." The parole board could reasonably conclude that a mental health evaluation, anger management, male awareness, and ongoing counseling would aid in Wood's rehabilitation and reduce the risk to the public.
Wood, 736 P.2d at 364.
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We conclude that Wood's parole conditions are reasonably related to his rehabilitation and the risk to the community.
Conclusion
We AFFIRM the superior court's order dismissing the application for post-conviction relief.