Hamrick v. State

STEWART, Judge,

dissenting.

Alaska Statute 12.55.015(a)(10) authorizes a court to “order the defendant, while incarcerated, to participate in or comply with the treatment plan of a rehabilitative program that is related to the defendant’s offense or to the defendant’s rehabilitation if the program is made available to the defendant by the Department of Corrections.” As reflected in the judgment in Hamrick’s case, Judge Card ordered Hamrick, while incarcerated, to “successfully complete an approved sexual offender treatment program as directed by the Department of Corrections.” As the court explained above, the State filed a petition to revoke Hamrick’s probation because Hamrick did not submit his application to enter treatment until there was insufficient time remaining on his sentence to complete the treatment program.

My colleagues conclude that the department “had the duty to make Hamrick’s duties clear to him and to make sure that Hamrick understood that his failure to [submit a timely application] would violate his probation.” They also reason that Hamrick’s probation condition “did not give Hamrick any notice that he was required to do anything other than successfully complete the program.”

I disagree with both of those conclusions. First, I conclude that the probation condition Judge Card imposed that requires Hamrick to complete a sex offender treatment program notifies Hamrick that he is obliged to enroll in a treatment program. In Alexander v. State,1 we reviewed a case where the superior court imposed a probation condition that required the defendant to “take advantage of sex offender ... programs that are available” while in custody.2 The superior court ruled that “take advantage of’ meant that Alexander was required to “enroll in and fully participate” in the treatment program.3 We determined that this probation condition — that Alexander “take advantage of’ treatment — gave Alexander sufficient notice that he had to “make meaningful efforts to participate in the treatment program.”4

The condition imposed by Judge Card is clear; it obliges Hamrick to complete the treatment program. I conclude that this condition informed Hamrick that he had to enroll in the program (and complete the forms the Department of Corrections provided to him on a timely basis).

Because the probation condition itself gave Hamrick reasonable notice of his obligation to enroll, I disagree with the my colleagues’ conclusion that the Department had an additional duty to make sure that Hamrick understood his probation might be revoked if he did not complete the application. Even so, Probation Officer Gette testified that she took the application to Hamrick in his cell and tried to motivate him to apply, but Ham-rick was hesitant about applying. She urged him to submit the application but Hamrick said he was not sure what he wanted to do.

Probation conditions are analogous to contracts between the court and the defendant; by accepting a probation condition, the defendant commits to doing something or refraining from certain behavior.5 Here, Hamrick agreed to complete sex offender treatment while he was in custody. My colleagues have ruled that Hamrick was negligent by waiting to submit his application until it was too late to complete the program, but that the State needed to prove Hamrick was “fully aware” that a late application would result in a probation revocation.

I do not agree that the State must meet that standard. I believe the State was required to prove a material breach of the probation condition. Hamrick was obliged to *180make meaningful efforts to complete sex offender treatment while incarcerated. The evidence showed that Hamrick submitted the application months after it was provided and too late to complete the treatment program. Judge Card justifiably found that Hamrick’s late application resulted in a material breach of his promise to complete sex offender treatment while in custody.

But even if the State had to prove that Hamrick was “fully aware” that his failure to file a timely application would violate his probation condition, this standard was clearly met: Judge Card heard testimony that Probation Officer Gette had explained to Ham-rick that he could face court action for failing to comply with the application process, but Hamrick was hesitant to even apply for treatment and did not know what he wanted to do. Furthermore, on the evidence before him, Judge Card could reasonably find that Hamrick understood that he had to submit an application to enter treatment. There was no evidence submitted to the contrary nor any evidence that Hamrick had any different understanding. On this record, I conclude that Judge Card properly found that Hamrick violated his probation condition.

. 38 P.3d 543 (Alaska App.2001).

. Id. at 544.

. Id. at 545.

. Id.

. See McRae v. State, 909 P.2d 1079, 1083 (Alaska App. 1996).