Hosier v. State

Decision Date31 August 2022
Docket NumberA-13655
PartiesDONALD HOSIER, Appellant, v. STATE OF ALASKA, Appellee.
CourtAlaska Court of Appeals

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, First Judicial District Trial Court No. 1JU-17-00349 CR, Juneau, Philip M. Pallenberg, Judge.

Andrew C. Miller (opening memorandum) and Josh Carson (reply memorandum), Assistant Public Defenders, and Samantha Cherot Public Defender, Anchorage, for the Appellant.

Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison Judges.

SUMMARY DISPOSITION

Donald Hosier pleaded guilty, pursuant to a plea agreement, to one count of third-degree assault and one count of third-degree weapons misconduct for conduct that occurred in March 2017.[1] Pursuant to the plea agreement, Hosier was sentenced to 5 years with 3 years suspended (2 years to serve) and 5 years' probation.

After Hosier's probation was revoked twice for methamphetamine use, the State filed a third petition to revoke Hosier's probation - alleging that he had violated his probation in November 2019 and March 2020 by failing to report to his probation officer, possessing alcohol, possessing methamphetamine, refusing to submit to a chemical test for alcohol and controlled substances, and associating with a convicted felon. The State later withdrew the allegation related to the association with a convicted felon, and Hosier admitted to the conduct underlying the other allegations.

At the probation revocation hearing, Hosier argued that his sentencing was governed by the probation revocation statute that was in effect at the time he committed his underlying criminal offenses.[2] That probation revocation statute, which was repealed in 2019, limited the trial court's sentencing authority when the probation revocation was based only on "technical" probation violations.[3] "Technical" violations were defined as violations of the conditions of probation that did not constitute "(A) a new criminal offense; (B) failing to complete sex offender treatment; or (C) failing to complete an intervention program for batterers."[4]

The trial court disagreed that its sentencing decision was limited by the prior statute, and the court imposed 10 months of Hosier's suspended time.[5] Hosier now appeals, arguing that the trial court violated the prohibition against ex post facto laws when it sentenced him under the existing probation statute rather than the more lenient statute that was in effect when Hosier committed his original offenses. Hosier also argues that the trial court violated his right to due process when it failed to apply the more lenient probation statute because, according to Hosier, this statute was an "implicit" term of his plea agreement.

We conclude that we do not need to reach either argument because the issue is moot-that is, the outcome would be the same even if we ruled in Hosier's favor and held that the former probation revocation statute applied to his case.

Unlike Hosier's first two probation violations for methamphetamine use, his third probation revocation was not based solely on technical violations.[6] In the amended third petition to revoke his probation, Hosier was alleged to have possessed methamphetamine - a criminal offense under Alaska law.[7] Indeed, at the revocation hearing, Hosier directly admitted to possessing methamphetamine, thereby admitting to a criminal offense under Alaska law.

Thus, even assuming arguendo that Hosier is correct and that the trial court was required to apply the prior probation statute, the sentencing limits under the prior statute would still not apply because Hosier's third probation revocation was not based solely on technical violations. In other words, the trial court had the authority to impose 10 months of suspended time, regardless of which probation statute applied.

The judgment of the superior court is AFFIRMED.

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[1] AS 11.41.220(a)(1)(A) and AS 11.61.200(a)(1), respectively.

[2] See former AS 12.55.110(c)-(h) (effective Jan. 1, 2017). These statutory provisions were part of a larger 2016 criminal omnibus bill Senate Bill 91, that was directed at various criminal justice reforms. See SLA 2016, ch. 36. The legislature later repealed the majority of Senate Bill 91, including the probation...

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