Solano v. State, A-13653

CourtCourt of Appeals of Alaska
PartiesNATHAN D. SOLANO, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberA-13653
Decision Date31 August 2022

NATHAN D. SOLANO, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-13653

Court of Appeals of Alaska

August 31, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, First Judicial District Trial Court No. 1JU-07-01449 CR, Juneau, Amy G. Mead, Judge.

Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

SUMMARY DISPOSITION

In 2008, Nathan D. Solano pleaded guilty to two counts of second-degree sexual abuse of a minor.[1] He received a composite sentence of 20 years with 5 years suspended, and a 10-year term of probation. After serving his active term of imprisonment, Solano was released to felony probation in 2017. Among other things, Solano's probation conditions prohibited him from possessing "pornographic or erotic

1

material involving minors" and required him to submit to searches of his person and property for drugs, alcohol, and child pornography.

In early 2020, Solano's probation officer discovered that Solano had accessed a "nudist lifestyle" website containing images of naked children, so the officer seized Solano's iPhone and iPad.[2] Solano initially refused to provide the passcodes to the devices (although he later did so through his attorney at his arraignment). The probation officer filed a petition to revoke Solano's probation, alleging three violations: two for his refusal to provide the passcodes so that his probation officer could search his electronic devices (one violation for each device) and one for possessing "pornographic or erotic material involving minors."

At Solano's adjudication, the superior court ruled that the probation condition prohibiting Solano from possessing "pornographic or erotic material involving minors" was unconstitutionally vague.[3] Nonetheless, the court found that the State had proven the remaining two allegations. At disposition, the court revoked Solano's probation, ordered him to serve 4 months of his suspended sentence, modified the condition it had found unconstitutional, and added five new conditions.

Solano now appeals.

As an initial matter, Solano challenges the court's decision to impose any new probation conditions. Under AS 12.55.090(b), a court may modify probation

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conditions to a probationer's detriment, even absent a formal probation violation, if the State establishes a "significant change of circumstances" - i.e., "post-sentencing conduct that establishes a substantial reason to conclude that the current conditions of probation are not adequately ensuring the defendant's rehabilitation or adequately protecting the public."[4]

According to Solano, the State failed to meet this standard. He contends that his two violations - refusing to provide passcodes to his devices until his arraignment-were minor and "technical." He further notes that the images he viewed did not cause the court to find a violation, and asserts that his conduct was not "alarming" enough to jeopardize the public or his...

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