Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

HANLEY, Judge.

Justin Paul was convicted of attempted sexual assault in the second degree involving a minor.1 The superior court imposed a condition of probation prohibiting him from initiating contact with minors under the age of sixteen. The State filed several petitions to revoke Paul's probation, including one alleging he had initiated contact with a twelve-year-old girl. The court found that Paul violated his probation by initiating contact with the girl and imposed the remainder of Paul's suspended jail time.

Paul argues on appeal that the superior court erred when it found he violated his probation and that the court was clearly mistaken when it imposed the remainder of his suspended jail time. We affirm.

Facts and proceedings

In September 2009, Justin Paul pleaded guilty to attempted sexual assault in the second degree. At the time of the offense, Paul was sixteen years old and the victim was nine. The court sentenced Paul to 7 years of imprisonment with 5 years suspended. One of the probation conditions imposed by the court prohibited Paul from initiating contact with minors under the age of sixteen, except in the presence of an adult approved by his probation officer.

After his release from imprisonment, the State filed two petitions to revoke his probation. The court found that Paul had violated his probation and imposed 21 months of his suspended jail time.

In 2012, the State filed a third petition, alleging that Paul violated his probation by initiating contact with a twelve-year-old girl. Paul contested the allegation. At an adjudication hearing, Ida Kashatok testified that her twelve-year-old daughter K.A. was staying at her grandmother's house but snuck out of the house early in the morning. K.A.'s father learned that she might have gone to Paul's house. He contacted the village police officer, who found K.A. sitting on the couch in Paul's house at about 3:00 a.m.

Kashatok testified that she looked at K.A.'s iTouch device and found a message from Paul inviting K.A. to his house. Kashatok took the device from K.A. as a form of discipline, hid it, and was not able to later find it.

Paul testified that after his release from jail, he passed K.A. on the street and she "eye balled" him. Paul stated that on the night in question he received a text message from an unknown person that said "hi." He said he thought the message might have been from a friend or relative, and he invited the person to his house. He then said someone knocked on his door and when he answered he saw K.A., which "freaked [him] out." He said he would have called the village police officer, but he did not know her phone number. He allowed K.A. to enter his house because it was cold outside and she was wearing only pajamas and a t-shirt.

On cross-examination, Paul testified that prior to K.A.'s visit to his house he exchanged a series of text messages with an unknown person. He said when K.A. arrived at his house, she revealed that she had been the person texting him. He also stated that after her visit to his house, he sent K.A. a text message stating he was not allowed to have contact with her. The following colloquy then occurred:

Superior Court Judge Ethan Windahl found that Paul and K.A. engaged in an ongoing series of contacts, resulting in K.A. going to Paul's residence. The court rejected Paul's contention that he did not know whom he was communicating with. Instead, the court found that Paul knowingly and intentionally communicated with K.A. and that Paul knowingly asked K.A. to "come on over to my house."

Paul violated his probation by initiating physical contact with a minor

Paul argues on appeal that the State did not prove that he initiated contact with K.A. by texting her first or by admitting her into his house.

The sentencing court prohibited Paul from initiating contact with minors under the age of sixteen, except in the presence of an adult approved by his probation officer. Paul argues that at the adjudication hearing the court did not make a factual finding that he initiated contact with K.A. by texting her first and that any ongoing communication between the two did not constitute "initiating contact" unless Paul was the one who sent the first message. But the court found that Paul initiated contact with K.A. in a different way — by sending her a message to "come on over to my house." We agree that when Paul invited K.A. to his house, and in response she appeared there, he violated his probation by initiating a physical contact with K.A.

Paul also asserts that the State did not prove he violated his probation by a preponderance of the evidence. In particular, Paul challenges the credibility of Kashatok's testimony that she looked at K.A.'s iTouch and saw a message from Paul inviting K.A. to his house. On appeal, this Court reviews the trial court's findings of fact and determinations of the credibility of witnesses with deference and will reverse these findings only if they are clearly erroneous.2 After reviewing the record, including Kashatok's testimony and Paul's admission that he invited K.A. into his house, we conclude the trial court's findings are not clearly erroneous. The record adequately supports the trial court's conclusion that the State proved, by a preponderance of the evidence, that Paul violated his probation.

The sentencing court was not clearly mistaken when it imposed the remainder of Paul's suspended jail time

After finding that Paul violated his probation, the superior court imposed the remainder of his suspended term of incarceration. Paul contends that the court was clearly mistaken in doing so.

Paul was convicted of attempted second-degree sexual assault arising from his anal penetration of a nine-year-old boy. The court sentenced Paul to 7 years' imprisonment with 5 years suspended.

Less than a year after the court imposed Paul's probation conditions, the State alleged that Paul violated his probation when he was discharged from sex offender treatment, based in part on his unauthorized contact with a minor. Paul admitted the allegation. The court imposed 90 days of his suspended jail time and released him to the sex offender program.

Paul used marijuana on the day he was released from jail, in violation of a condition of his probation. He also resided with his aunt and three of her children — all of whom were under the age of 16 — and did not tell her that he had been convicted of a felony sex offense involving a minor, again in violation of a condition of his probation. He was also discharged from sex offender treatment a second time for aggressive behavior. For these probation violations, the court imposed another 18 months of his suspended jail time.

Six weeks after Paul's second probation revocation, Paul invited K.A. to his house, again violating his probation. At that time, Paul had approximately 39 months of suspended jail time remaining. The State and Paul's probation officer emphasized the community's need to be protected from Paul and recommended that all of the time be imposed. Paul argued that none of his suspended time should be imposed.

The court explained that Paul had inappropriately and repeatedly had contact with young people. It concluded that, while nothing happened when K.A. was in Paul's house, she "definitely was in danger." The court emphasized the sentencing goals of rehabilitation and protecting the public through isolation. The court imposed Paul's remaining suspended jail time and recommended that he participate in sex offender treatment if available while in custody. Paul argues the court was clearly mistaken when it imposed all of his suspended time.

When a defendant violates his probation, the sentencing court may not automatically impose all of his suspended jail time. Instead, the court must apply the Chaney3 sentencing criteria (codified in AS 12.55.005) and consider the circumstances of the original offense, the defendant's background and experience at the time of the original sentencing, and the defendant's intervening conduct.4

The sentencing court analyzed Paul's original offense and his poor performance on probation. It also evaluated the Chaney criteria and imposed a sentence focused on rehabilitation and protecting the public through isolation.

When this Court reviews a sentencing court's decision, we are to affirm it unless it is clearly mistaken.5 After reviewing the record, we conclude that the sentencing court's decision is not clearly mistaken.

Conclusion

The judgment of the superior court is AFFIRMED.