McGlashan v. State
| Decision Date | 27 April 2022 |
| Docket Number | A-13590 |
| Parties | ALEC MCGLASHAN III, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
UNPUBLISHED See Alaska Appellate Rule 214(d)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.
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 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 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.
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 floor. He ultimately penetrated both her vagina and anus with his penis without her consent. When contacted by law enforcement, McGlashan asserted that he experienced an alcoholic blackout while in his niece's home, and he claimed to have no memory of the violent acts.
The record also suggests that McGlashan has problems with substances other than alcohol. According to the presentence report, McGlashan smoked marijuana immediately after the violent rape was over and before he left his niece's house.
Given this record and the specific facts of this case, we conclude that the trial court could reasonably be concerned about McGlashan's substance use and conclude that additional testing and search provisions were justified to aid in McGlashan's rehabilitation and to protect the public.[10] Accordingly, we affirm the imposition of Special Probation Conditions Nos. 8 and 9 as within the trial court's discretion.[11]
We likewise find no abuse of discretion in the trial court's imposition of General Probation Condition No. 5, which prohibits McGlashan from possessing certain weapons.[12] McGlashan objected to this condition, arguing that there was no nexus to either his rehabilitation or the protection of the public because his crime did not involve the use of a weapon. The trial court overruled the objection, finding that "this is an important probation condition to protect the community," given the extreme violence of McGlashan's crime.
We conclude that, given the extreme violence with which McGlashan acted, the trial court could reasonably conclude that a probation condition prohibiting McGlashan from possessing certain weapons was reasonably related to the probation goal of protecting the public.[13] We therefore affirm General Probation Condition No. 5.
Accordingly, we REMAND this case to the superior court to reconsider the prohibition against medical marijuana and to correct the agreed-upon changes to the presentence report. We otherwise AFFIRM the judgment of the superior court.
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[1] AS 11.41.420(a)(1) & AS 11.31.100.
[2] As part of the plea agreement McGlashan stipulated to an aggravating factor under AS 12.55.155(c)(10) ().
[3] See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) ().
[4] See id.
[6] Id.; see also State v Nelson, 195 P.3d 826, 834 (Mont. 2...
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