Holton v. State
| Decision Date | 16 November 1979 |
| Docket Number | No. 4038,4038 |
| Citation | 602 P.2d 1228 |
| Parties | Paul Edward HOLTON, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.
Holton appeals the validity of his felony conviction under Alaska's contributing to the delinquency of a minor statutes, AS 11.40.130 and AS 11.40.150, arguing that the statutes are vague, overbroad and violate equal protection. Holton also challenges his probation revocation, arguing that the state did not prove that he violated a condition of probation. We affirm both the original conviction and the probation revocation.
According to police reports, on July 24, 1976, in downtown Fairbanks, Holton asked a juvenile boy, M.F., for directions to Roth Street. M.F. offered to ride with Holton to show him where the street was. Holton took M.F. to a secluded area, stopped the car, made sexual advances toward him, and offered to perform fellatio. M.F. declined and asked Holton to take him back to town, which Holton did.
M.F. reported his experience to the police, who had received a similar report from another juvenile, T.L. T.L. had also refused Holton's advances but had made a date to meet Holton later that day, July 26, 1976. The police arranged that M.F., fitted with a microphone and transmitter, meet Holton instead of T.L. During their meeting, Holton discussed his homosexual background and, a number of times, asked M.F. to engage in fellatio with him. The police terminated the conversation and arrested Holton.
Holton was indicted by a Fairbanks grand jury on a felony charge of contributing to the delinquency of a minor, AS 11.40.130(b). The charge alleged that Holton had tried to persuade M.F. to engage in lewd conduct, specifically fellatio, on July 26, 1976. Holton pled guilty to the charge and was sentenced by Judge Blair to two years imprisonment, with one year suspended.
On January 28, 1978, while on probation, Holton's conduct with D.O. led to a misdemeanor charge for contributing to the delinquency of a minor, AS 11.40.130(a), and to a petition to revoke Holton's probation. At the revocation hearing, D.O. and Officer Feichtinger testified. 1
D.O. stated that a man he identified as Holton came up to him as he was going into a Rexall Drug Store in downtown Anchorage. Holton asked D.O. where Ross Street was and he said he had to pick up some marijuana from someone on Ross Street. Holton then said he designed jock straps and asked D.O. if he would be interested in modeling jock straps. D.O. said no.
Q. (District Attorney) What other discussions did you have?
A. (D.O.) And then then goes, well, would you like to go to my house and drink some beer and smoke some dope? And I said, no, I got to go home and eat. And then he goes, well, you want to make a date? And I said, yeah, behind Rexall Drugs.
They met later that evening 2 and went to a McDonalds. D.O. said he would have some coffee. While Holton was paying, D.O. left and flagged down a car with Officer Feichtinger and another officer in it. After hearing D.O.'s story, the officers approached Holton, and talked with him. Officer Feichtinger subsequently swore out a misdemeanor complaint against Holton for contributing to the delinquency of a minor.
The misdemeanor charge was eventually dropped, but based on the complaint, Holton's probation officer petitioned for a revocation of probation, alleging that Holton had violated the condition of his probation that he "(c)omply with all municipal, state and federal laws and ordinances." After a hearing, Judge Moody found that Holton had committed the offense alleged in the complaint and revoked his probation. Holton moved to dismiss the revocation or, in the alternative, to strike the underlying felony conviction because of constitutional infirmities in AS 11.40.130. Judge Blair denied the motion and sentenced Holton to serve the balance of his original two-year sentence.
The state argues that Holton may not attack his underlying conviction in a probation revocation hearing and instead must bring a separate action for post-conviction relief pursuant to Criminal Rule 35. We reject this argument in light of Holton's substantial compliance with the requirements of Criminal Rule 35, which provide in part:
(d) Commencement of Proceedings Filing Service. A proceeding is commenced by filing an application with the clerk of the court in which the conviction occurred. Application forms will be furnished by the clerk of court. An application may be filed at any time. The clerk shall docket the application upon its receipt and promptly bring it to the attention of the court and deliver a copy to the district attorney.
Criminal Rule 35(e) specifies the contents of the application.
Although Holton did not file his motion for post-conviction relief on the special forms provided by the court, he did file a separate "Motion to Dismiss Probation Revocation Proceeding; or in the Alternative, to Strike Felony Conviction." When that motion was denied, Holton made a motion for reconsideration which expressly grounded objection to his underlying felony conviction in Criminal Rule 35(b)(1). Although Holton did not file the motion in the Fourth Judicial District where the original conviction occurred, he sent a copy of the motion to Judge Blair of the Fourth Judicial District, the judge in the original case; and by special arrangement, Judge Blair, who normally sits in Fairbanks, ruled on the motion when he was in Anchorage. Thus, unlike McKinnon v. State, 526 P.2d 18, 26 (Alaska 1974), Holton's challenge to his original conviction was decided by the trial judge who pronounced the original sentence. 3
Judge Blair had sufficient information about the original conviction to permit a ruling on the merits of Holton's challenge. The state's position would require pointless relitigation of the issue, probably before the very same judge. We suspect that the state's real concern is that any subsequent proceedings in this case come under the special features of Rule 35. See, e. g., State v. Hannagan, 559 P.2d 1059 (Alaska 1977) (). Were further proceedings in this case necessary, we would require them to be under Rule 35. 4
Currently, Alaska has a two-part statutory scheme for contributing to the delinquency of a minor. AS 11.40.130 makes "contributing" both a misdemeanor and a felony:
Contributing to delinquency of a child.
(a) A person who commits an act, or omits the performance of a duty, which causes or tends to cause, encourage or contribute to the delinquency of a child under the age of 18 years, is guilty of a misdemeanor.
(b) A person who by threats, command or persuasion endeavors to induce a child under the age of 18 years to perform an act or follow a course of conduct which would cause or manifestly tend to cause him to become or remain a delinquent is guilty of a felony, and upon conviction is punishable by imprisonment for not less than one year nor more than two years.
AS 11.40.150 defines the term "delinquent":
Delinquent defined. For the purpose of § 130 of this chapter a child is a delinquent if he is under the age of 18 years and
(1) violates a law of the United States, or the state, or an ordinance of a city or town;
(2) is incorrigible, either at home or in school;
(3) knowingly associates with thieves, vicious or immoral persons;
(4) without just cause and without the consent of his parents, or custodian, absents himself from home or his place of abode;
(5) is in danger of becoming or remaining a person who leads an idle, dissolute, lewd or immoral life;
(6) knowingly frequents a house of ill repute;
(7) knowingly frequents a place where a gaming device is operated;
(8) Repealed by § 2 ch. 43 SLA 1968;
(9) wanders about the streets in the nighttime without being on lawful business or occupation;
(10) habitually wanders about railroad yard or tracks;
(11) habitually uses vile, obscene, vulgar, profane or indecent language;
(12) is guilty of or takes part in or submits to an immoral act or conduct; or
(13) is addicted to the habitual use of intoxicating liquor or a drug.
Holton was convicted of the felony charge of contributing to the delinquency of a minor because he tried to persuade a minor to have fellatio with him. Holton contends that his conviction cannot stand because Alaska's contributing to the delinquency of a minor statutes, AS 11.40.130 and AS 11.40.150, are overbroad, vague, and denied him equal protection.
In Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska 1972), we described the general contours of the overbreadth doctrine:
The overbreadth doctrine has evolved to give adequate breathing room to specific first amendment freedoms; a statute violates the doctrine when constitutionally-protected conduct as well as conduct which the state can legitimately regulate are included within the ambit of the statute's prohibition. (footnote omitted) 5
A unique feature of an overbreadth challenge is that a person has standing to make such an attack even though it might be constitutionally permissible to regulate that person's conduct under a more narrowly drawn and specific statute. Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 1105-1106, 31 L.Ed.2d 408, 413 (1972). One commentator states:
(The) result (of a successful overbreadth challenge) may be understood as an exception to the rule that individuals are not ordinarily permitted to litigate the rights of third parties, since an individual...
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...it might be constitutionally permissible to regulate that person's conduct under a more narrowly drawn and specified statute." Holton v. State, 602 P.2d 1228, 1233, citing Gooding v. Wilson, supra at 520-21, 92 S.Ct. at 1105. One commentator [The] result [of a successful overbreadth challen......