McGlashan v. State, A-13590

CourtCourt of Appeals of Alaska
PartiesALEC MCGLASHAN III, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberA-13590
Decision Date27 April 2022

ALEC MCGLASHAN III, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-13590

Court of Appeals of Alaska

April 27, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Trial Court No. 3UN-15-00171 CR Unalaska, Herman Walker Jr., Judge.

Amanda J. Harber, 49th State Law, LLC, Soldotna, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Kenneth M. Rosenstein, 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.

SUMMARY DISPOSITION

Alec McGlashan III pleaded guilty, pursuant to a plea agreement, to one count of attempted second-degree sexual assault after he violently raped his niece while in an alleged alcoholic blackout.[1] Pursuant to the agreement, the trial court imposed a

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sentence of 18 years with 5 years suspended (13 years to serve) and 10 years' probation.[2]The trial court also imposed a number of probation conditions over McGlashan's objection. McGlashan now appeals, challenging the imposition of these probation conditions. McGlashan also argues that the trial court erred in failing to make certain changes to the presentence report that the parties had agreed on.

On appeal, the State concedes that remand is appropriate so that the trial court can make the agreed-upon changes to the presentence report. We conclude that this concession is well-founded, [3] and we accordingly direct the trial court to make these changes to the presentence report on remand.

The State also concedes that the prohibition against medical marijuana in Special Probation Condition No. 8 should be reconsidered on remand. We conclude that this concession is also well-founded.[4] In State v. Glasgow, we recognized that a probation condition prohibiting the medical use of marijuana infringes on a probationer's constitutional right to privacy in making independent medical decisions in consultation with a physician.[5] We therefore held that a court must apply special scrutiny before imposing such a condition.[6] Special scrutiny requires the court to find that the condition

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is narrowly tailored to avoid unnecessary interference with the constitutional right at issue.[7] It also requires the court to affirmatively consider and have good reason for rejecting any less restrictive alternatives.[8] That level of analysis did not occur here.[9] We therefore vacate this portion of Special Probation Condition No. 8 and remand it for reconsideration by the trial court.

The State argues that the remainder of Special Probation Condition No. 8 and the other challenged probation conditions were properly imposed. We agree.

Special Probation Condition No. 8 prohibits the possession and use of illegal drugs. It also requires McGlashan to submit to testing and warrantless searches for illegal drugs. Special Probation Condition No. 9 further prohibits the possession or use of items "intended to conceal alcohol or controlled substance use or to subvert a bodily fluid testing process" and authorizes warrantless searches for such items.

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At sentencing, McGlashan denied having any problem with illegal drugs, and he objected to these probation conditions on that basis. He did not object to the alcohol portion of the conditions.

The trial court overruled this objection based primarily on the severity of McGlashan's alcohol use and the extremely violent crime it had produced. The court reasoned that "[i]f he's abusing alcohol to such an extent that he's committing these kinds of crimes," then it is appropriate to monitor him on probation for any illegal drug use.

The record confirms the trial court's findings regarding the extreme nature of McGlashan's alcohol use. According to the presentence report, McGlashan dragged his niece from room to room, head butted her, strangled her to the point that she lost consciousness, bit her breasts, and slammed her head into the...

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