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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

ANDREW DENNIS JOHNSON, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12180 

Trial Court No. 3PA-12-581 CR 

O P I N I O N 

No. 2596 — April 20, 2018 

Appeal from the Superior Court, Third Judicial District, Palmer, 

Kari C. Kristiansen, Judge. 

Appearances: Hanley Robinson, Attorney at Law, under 

contract with the Office of Public Advocacy, Anchorage, for 

the Appellant. Brittany L. Dunlop, Assistant District Attorney, 

Palmer, and Craig W. Richards, Attorney General, Juneau, for 

the Appellee. 

Before: Mannheimer, Chief Judge, and Allard and Wollenberg, 

Judges. 

Judge WOLLENBERG. 

Andrew Dennis Johnson pleaded guilty to manslaughter. Pursuant to an 

agreement with the State, Johnson agreed to his term of imprisonment, but his probation 

conditions were left open to the superior court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On appeal, Johnson challenges several of the conditions imposed by the 

court, including conditions that regulate Johnson’s contact with his wife and son. For 

the reasons explained in this opinion, we reverse the condition regulating Johnson’s 

contact with his wife, and we vacate and remand for reconsideration the condition 

regulating Johnson’s contact with his son. We affirm the alcohol- and drug-related 

conditions. 

Underlying facts 

On March 7, 2012, Andrew Johnson and his wife, Holly Johnson, got into 

an argument. Holly left their home and went to the home of her friend, Jessica Smith. 

Later that night, Johnson asked Holly’s brother, David Carlton, to give him 

a ride to Smith’s home. According to Johnson, he wanted to retrieve the truck Holly had 

driven to Smith’s residence. He was also concerned that Holly might use drugs with 

Smith, and he wanted Holly to return home. 

Carlton drove Johnson and Johnson’s son, Spencer Johnson, to Smith’s 

home. At the time, Spencer was nineteen years old and had moved to Alaska two 

months earlier to live with Johnson and Holly. Johnson said he took Spencer with him 

because he (Johnson) did not have a driver’s license and he needed someone to drive his 

truck from Smith’s residence. 

Upon arriving at Smith’s home, Johnson told Carlton to stay in the car, and 

he told Spencer to start the truck belonging to Johnson and Holly. Johnson went alone 

to the front door of the house. Smith’s fiancé, Michael Plummer, came to the door, and 

Johnson and Plummer began shoving each other. Johnson told Plummer to tell him 

where Holly was, and Plummer questioned Johnson about who he was and what he was 

doing there. 

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Seeingthealtercation, Spencer ran tothehouse to intervene, and hestabbed 

Plummer in the throat with a knife. Smith retrieved a gun and shot at Johnson, Spencer, 

and Carlton (who had also entered the home), hitting Johnson. The three men fled. 

Plummer died at the scene. 

Proceedings 

The State secured an indictment against Johnson for alternative counts of 

second-degreemurder, manslaughter,andcriminally negligent homicide, and two counts 

of first-degree burglary.1 The State also charged Spencer Johnson with first-degree 

murder and related charges. Carlton was not charged. 

Pursuant to a plea bargain with the State, Johnson pleaded guilty to 

manslaughter. The plea bargain called for Johnson to receive a sentence of 15 years with 

5 years suspended (10 years to serve) and 5 years of probation. The State dismissed the 

remaining charges against Johnson. The agreement left Johnson’s probation conditions 

open to the sentencing court. 

Prior to sentencing, the author of the presentence report proposed a series 

of probation conditions. These conditions included (1) a condition that precluded 

Johnsonfromknowingly associating withanother felonabsent permissionby aprobation 

officer, and (2) a condition that absolutely barred Johnson from having contact with his 

son and co-defendant, Spencer Johnson, who was still awaiting trial at that time. 

Johnson’s attorney objected to several of theseconditions. First, Johnson’s 

attorney challenged the condition that restricted Johnson from knowingly associating 

with another felon, noting that the condition would restrict Johnson from having contact 

AS 11.41.110(a)(3); AS 11.41.120(a)(1); AS 11.41.130; and AS 11.46.300(a)(1), 

respectively. 

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1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

with his wife, Holly (who had a felony conviction), and potentially his son, Spencer 

(who might soon become a felon). He also challenged the condition absolutely barring 

Johnson from having contact with Spencer. Second, Johnson’s attorney challenged the 

conditions prohibiting Johnson’s use and possession of alcohol and illegal controlled 

substances, as well as related conditions precluding Johnson fromresiding in a residence 

where alcohol is present or entering an establishment where alcohol is the main item for 

sale, and requiring Johnson to submit to random testing, warrantless searches for drugs 

and alcohol, and a substance abuse assessment. 

At sentencing, the prosecutor agreed that Holly had afelony conviction and 

that the proposed condition generally precluding Johnson from having contact with 

felons applied to contact between them. But rather than propose an exception that would 

simply permit Johnson to have contact with Holly, the State proposed that the couple 

could have contact so long as they were both “in compliance with their respective 

probation officers.” Superior Court Judge Kari C. Kristiansen adopted a version of the 

State’s proposal, permitting contact between Johnson and Holly so long as “both parties 

are compliant with parole/probation.” 

The prosecutor opposed any contact between Johnson and Spencer. The 

prosecutor argued that this condition was necessary because Johnson and Spencer 

“conspired together” on the way to Smith’s house to get Holly back at any cost. 

Johnson’s attorney disputed the notion that anyone in the car was getting “tuned up” on 

the way to the Smith residence. And he argued that, in any event, a no-contact order was 

neither necessary nor the least restrictive condition, given the father-son relationship 

between Johnson and Spencer. 

The court ultimately deleted the condition absolutely barring Johnson from 

having contact with Spencer, explaining that once sentencing was completed in both 

cases and the defendants were out of custody, “I don’t see why Mr. Johnson can’t have 

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contact with his son.” But, as it had with Holly, the court made this contact contingent 

— only if “both parties are in compliance with probation/parole.” 

(The court also imposed a condition allowing Johnson to have contact with 

Spencer while Spencer’s case was in presentencing status, “so long as neither talks about 

the case while they are incarcerated.” Johnson does not directly challenge this condition 

on appeal, and we note that Spencer has since been convicted and sentenced.2

) 

Johnson now appeals the challenged probation conditions. 

The State’s jurisdictional argument 

The State argues that this Court lacks jurisdiction to consider Johnson’s 

appeal. If raised by a party or identified by the court, a potential flaw in subject-matter 

jurisdiction is a threshold issue that we must decide before addressing other issues 

presented in an appeal.3 

Alaska Statute 12.55.120(a) limits a criminal defendant’s right of sentence 

appeal. Under AS 12.55.120(a), a defendant who has received a felony sentence 

exceeding two years to serve or a misdemeanor sentence exceeding 120 days may appeal 

the sentence to this Court on the ground that it is excessive “unless the sentence was 

imposed in accordance with a plea agreement . . . and that agreement provided for 

imposition of a specific sentence[.]” This Court’s jurisdictional statute, AS 22.07.020, 

specifically incorporates the limitations set out in AS 12.55.120.4 

2 Spencer was convicted of second-degree murder and first-degree burglary. See State 

v. Johnson, Judgment and Order of Commitment/Probation, 3PA-12-547 CR. 

3 See Totemoff v. State, 905 P.2d 954, 957 (Alaska 1995). 

4 See AS 22.07.020(b). 

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The State argues that this Court lacks jurisdiction to hear Johnson’s appeal 

because he agreed to his term of imprisonment as part of a plea agreement. The answer 

to the State’s argument is found in our decision in Allen v. Anchorage.

5 

In Allen, we held that we had jurisdiction to hear “non-term-ofimprisonment sentence appeals” even when the term of imprisonment imposed by the 

trial court does not exceed the threshold amount to serve set out in AS 12.55.120(a).6 

Like Johnson, Allen challenged the trial court’s imposition of a probation condition.7 

We declared that we had jurisdiction to consider Allen’s claim even though she had 

received a term of imprisonment of only 30 days to serve, well below the threshold 

amount in AS 12.55.120(a) for a misdemeanor offense.8

 We interpreted the threshold 

amounts in AS 12.55.120(a) (and by extension, our jurisdictional statute 

AS 22.07.020(b)) as solely limiting our ability to hear appeals challenging the 

excessiveness of a defendant’s term of imprisonment — but placing no restrictions on 

our jurisdiction to hear appeals challenging other terms of a defendant’s sentence.9 We 

recently reaffirmed Allen’s core holding in Maguire v. State.

10 

Here, Johnson agreed to his termof imprisonment, and thus, he has no right 

to appeal that term of imprisonment.11 But Johnson is not appealing his term of 

imprisonment; he is appealing his probation conditions, which he actively contested in 

5 Allen v. Anchorage, 168 P.3d 890 (Alaska App. 2007). 

6 Id. at 894. 

7 Id. at 891. 

8 Id. at 891-92. 

9 Id. at 895. 

10 Maguire v. State, 390 P.3d 1175, 1177-78 (Alaska App. 2017). 

11 AS 12.55.120(a). 

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the superior court. Consistent with our holdings in Allen and Maguire, we conclude that 

we have jurisdiction to decide Johnson’s non-term-of-imprisonment appeal.12 

Johnson’s challenges to the limitations on his association with Holly 

Johnson and Spencer Johnson 

Johnson argues that the conditions regulating his contact with his wife, 

Holly, and his son, Spencer, unduly restrict his right to familial association and therefore 

violate his constitutional rights to due process, privacy, and freedom of association. In 

particular, Johnson challenges Special Condition No. 9, which provides that Johnson 

“may have contact with Holly Johnson [only] as long as both parties are compliant with 

parole/probation.” Johnson also challenges Special Condition No. 11, which provides 

that Johnson “may have contact with Spencer Johnson post[-]sentence [only] if both 

parties are in compliance with probation/parole.” 

In general, a sentencing court has broad authority to fashion conditions of 

probation so long as they are “reasonably related to the rehabilitation of the offender and 

the protection of the public and [are] not unduly restrictive of liberty.”13 But when a 

probation condition restrictsanindividual’sconstitutionalrights, thatcondition is subject 

to special scrutiny.14 Here, both Special Condition No. 9 and Special Condition No. 11 

12 See, e.g., Keeling v. State, 2017 WL 1291140 (Alaska App. Apr. 5, 2017) 

(unpublished) (on rehearing); see also Alaska R. App. P. 215(a)(2) (providing that a 

defendant may appeal a sentence of any length on grounds other than excessiveness). 

13 Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985) (quoting Roman v. State, 

570 P.2d 1235, 1240 (Alaska 1977) (internal quotation marks omitted). 

14 Roman, 570 P.2d at 1241 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 

265 (9th Cir. 1975)); see also Diorec v. State, 295 P.3d 409, 417 (Alaska App. 2013). 

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restrict Johnson’s familial associations with his wife and son, and thus plainly implicate 

his constitutional rights.15 

Thus, before the superior court could impose these conditions,or otherwise 

restrict Johnson’s contact with Holly or Spencer, the court needed to subject these 

conditions to special scrutiny. To survive special scrutiny, a probation condition must 

be both “reasonably related to the rehabilitation of the offender and protection of the 

public” and “narrowly tailored to avoid unnecessary interference” with a defendant’s 

constitutional rights.16 The court must “affirmatively consider and have good reason for 

rejecting lesser restrictions.”17 

Why we reverse any limitation on Johnson’s contact with Holly Johnson 

The record shows that the superior court did not apply the necessary 

heightened level of scrutiny to the probation condition restricting Johnson’s contact with 

Holly. Rather than start with the premise that Johnson had a constitutional right to 

unrestricted contact with his wife absent a compelling reason to limit that contact, the 

court started with the premise that Holly’s status as a felon permitted the court to restrict 

Johnson’s contact with her, as long as that restriction did not absolutely prohibit their 

contact. The court stated, “That’s his wife, and I don’t see any reason why we should 

15 See Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014); Hinson v. State, 

199 P.3d 1166, 1174 (Alaska App. 2008); see also Dawson v. State, 894 P.2d 672, 680 

(Alaska App. 1995) (recognizing that “[a] condition of probation restricting marital 

association plainly implicates the constitutional rights of privacy, liberty and freedom of 

association and . . . must be subjected to special scrutiny”). 

16 Simants, 329 P.3d at 1039 (internal quotations omitted). 

17 Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995); Dawson, 894 P.2d at 

680-81. 

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further restrict their association so long as they’re compliant on probation and parole 

while they’re being monitored.” (Emphasis added.) 

But when a defendant’s spouse is a felon, the court must consider whether 

any restriction on contact with that person, however slight, is necessary.18 If the court 

imposes a restriction, it must “affirmatively consider and have good reason for rejecting 

lesser restrictions.”19 

Although we would generally remand this issue to the superior court for 

application of special scrutiny, we conclude that there is nothing in the record to support 

a restriction on Johnson’s contact with Holly.20 The restriction appears to have been 

based solely on the fact that Holly had a prior, unrelated (and unspecified) felony 

conviction. Johnson was not charged with engaging in criminal conduct together with, 

or against, Holly, and the prosecutor did not argue that there were any past instances of 

assaultive or other criminal conduct between them. The prosecutor also did not argue 

that Holly’s past conviction would actively undermine Johnson’s rehabilitation, and the 

court’s comments underscore that the court itself did not believe that Johnson’s contact 

with Holly would actively undermine Johnson’s rehabilitation or the safety of the public. 

18 See Dawson, 894 P.2d at 680-81 (recognizing that “precluding association between 

marital partners” is “an extreme restriction of liberty” and vacating a condition that precluded 

contact between the defendant and his co-defendant wife absent probation officer approval 

where the trial court had not narrowly tailored the restriction or explained why Dawson’s 

other probation conditions were insufficient to address the court’s concerns). 

19 Peratrovich, 903 P.2d at 1079; Dawson, 894 P.2d at 680-81. 

20 See Dawson, 894 P.2d at 680-81. 

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We acknowledge that restrictions on familial association may be justified 

by “actual necessity and the lack of less restrictive alternatives.”21 But the State did not 

establish, the court did not identify, and the record fails to otherwise disclose, why any 

restriction on Johnson’s contact with Holly was necessary in this case. 

Accordingly, we reverse Special Condition No. 9. 

Why we direct the superior court to reconsider Special Condition No. 11, 

which restricts Johnson’s contact with Spencer Johnson 

We reach a slightly different conclusion with regard to the restriction on 

Johnson’s contact with his son, Spencer. Here, given the status of Johnson and Spencer 

as co-defendants, there may be some reason to impose a limited restriction on their 

contact. But as with the condition regulating Johnson’s contact with Holly, the superior 

court failed to subject this condition to the necessary special scrutiny. We also have 

concerns about the way the imposed restriction will operate in practice. Accordingly, 

we vacate and remand this condition for reconsideration. 

Likeconditionsthatrestrictmarital association, conditions ofprobationthat 

restrict the parent-child relationship implicate constitutional rights and are subject to 

special scrutiny to ensure that they are “narrowly tailored to avoid unnecessary 

interference with family relationships.”22 Although Johnson and Spencer were codefendants, their status as co-defendants (or felons) alone did not override the 

importance of their familial relationship.23 

21 Id.
 

22 Simants, 329 P.3d at 1038-39; see also Hinson, 199 P.3d at 1174.
 

23 Dawson, 894 P.2d at 680-81.
 

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Thesuperior court recognized thisby rejecting acompletebar on Johnson’s 

contact with Spencer. But the court did not further explain why the restriction in Special 

Condition No. 11 was necessary, what this limitation on Johnson’s contact with Spencer 

was designed to accomplish, and whether the limitation was the least restrictive option 

available. 

We note that although Johnson and Spencer were co-defendants, the State 

presented no information about whether Spencer — who was nineteen years old when 

he committed this offense — had a prior criminal history, nor was there any indication 

that Johnson and Spencer had engaged in criminal conduct together in the past or that 

they were likely to do so in the future. While the prosecutor argued at sentencing that 

Johnson and Spencer were getting “angry” and “ramped up” on the car ride over to the 

Smith residence, Johnson’s attorney disputed the factual basis of the prosecutor’s 

conclusion. The superior court did not expressly resolve or make factual findings on this 

issue. 

Citing the limited nature of the restriction, the State analogizes this case to 

Diorec v. State.

24 But Diorec is distinguishable. In Diorec, we upheld a probation 

condition that made contact between Diorec and his biological daughter contingent on 

a family court judge’s order in Diorec’s divorce proceedings.25 Because Diorec had been 

convicted of a crime against his stepdaughter, we found it reasonable for the sentencing 

court to act to protect other members of Diorec’s family.26 And because the divorce 

court had already ordered that any contact between Diorec and his biological daughter 

24 Diorec v. State, 295 P.3d 409 (Alaska App. 2013).
 

25 Id. at 414.
 

26 Id.
 

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had to be approved by her counselor, the sentencing court’s restriction was narrowly 

tailored and avoided potentially conflicting court orders.27 

In contrast, Johnson was not convicted of a crime against a family member. 

And there was no separate proceeding where a potentially inconsistent order had been, 

or would be, issued. 

Indeed, by rejecting any restrictions on Johnson’s contact with Spencer 

while both were in compliance with probation and parole, the court appears to have 

concluded that such contact was not likely to cause the problems envisioned by the 

prosecutor or to present any other danger to the public or undermine Johnson’s 

rehabilitation. These findings suggest that the court may conclude, after application of 

special scrutiny, that no restriction on Johnson’s contact with Spencer is necessary to 

ensure Johnson’s rehabilitation and the safety of the public. 

If, however, the court concludes that some limitation on Johnson’s contact 

with Spencer is required, the court must ensure that the limitation is the least restrictive 

necessary and that the condition does not suffer from certain problems of vagueness and 

overbreadth that are present in the current limitation. 

Special Condition No. 11 allows Johnson to have contact with Spencer as 

long as both parties are “in compliance with probation/parole.” The court did not define 

“compliance.” It is therefore unclear whether the bar on contact is triggered by any 

violation of probation or parole, or only those violations for which the probation officer 

initiates a formal revocation proceeding. As a result, the limitation does not adequately 

inform Johnson when he is required to cut off contact, and his contact with Spencer 

could seemingly be cut off for trivial infractions. 

27 Id. 

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And by making contact dependent on the compliance of “both parties,” the 

court has seemingly subjected Johnson to possible revocation and imprisonment if he 

initiates contact when Spencer is out of compliance with probation or parole, even absent 

proof that Johnson knew of Spencer’s violation. In addition to raising significant due 

process issues, sanctioning Johnson in suchcircumstances lacks any apparent connection 

to his rehabilitation. And even if Johnson were aware of Spencer’s violation status, 

limiting Johnson’s ability to contact his immediate family members when he himself 

otherwise remains compliant with his own supervision would preclude him from 

discussing important matters with Spencer, including bail. 

Accordingly, we vacate Special Condition No. 11 and remand for 

reconsideration. If, on remand, the State wishes to renew its request for a restriction on 

Johnson’s contact with Spencer when both men are out of custody, the superior court 

may consider whether a better defined, more fully explained restriction is necessary. 

Johnson makes one additional point with respect to the conditions 

regulating his contact with Spencer. Johnson notes that his conditions fail to address the 

likely situation in which Johnson is released from custody but Spencer remains 

incarcerated. We agree that when Special Conditions Nos. 10 and 11 are read together, 

they fail to expressly account for that scenario and therefore fail to give Johnson notice 

about whether he may contact Spencer in prison during that period. 

We note, however, that the court’s comments suggest that it did not intend 

to limit contact while at least one person was incarcerated (and thus, subject to 

monitoring). We agree that a restriction on contact under those circumstances is not 

warranted. 

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Why we uphold the alcohol- and drug-related conditions 

Johnson’s final challenge is to the alcohol- and drug-related probation 

conditions. Specifically, Johnson challenges General Condition No. 9 and Special 

Conditions Nos. 1-8, which: (1) prohibit Johnson from possessing and consuming 

alcohol and illegal controlled substances; (2) require Johnson to submit to testing at the 

direction of a probation officer to determine his use of drugs or alcohol; (3) preclude 

Johnson from living in a residence where alcohol is present or entering an establishment 

where alcohol is the main item for sale; (4) require Johnson to obtain a substance abuse 

evaluation and complete any recommended treatment (including up to six months of 

residential treatment, if recommended); and (5) subject Johnson to warrantless searches 

of his person, personal property, residence, or any vehicle in which he is found for the 

presence of alcoholic beverages or drug paraphernalia. Johnson argues that these 

conditions are not reasonably related to his rehabilitation or the protection of the public. 

In imposing these conditions, the superior court relied primarily on 

Johnson’s criminal history. The court specifically found that Johnson’s use of alcohol 

or controlled substances would undermine his rehabilitation, and the court concluded, 

based on this history, that testing and monitoring for these substances were reasonably 

related to Johnson’s rehabilitation. 

At the time of sentencing, Johnson was forty-one years old. The record 

shows that he has a lengthy criminal history of assaultive, property-related, and driving 

offenses dating back to the time he was a juvenile. His criminal history includes two 

convictions for driving under the influence and a drug-related conviction. One of 

Johnson’s convictions for driving under the influence arose from events in August 2003 

in which, while intoxicated, Johnson drove over a center divider, struck another vehicle 

in oncoming traffic, and then assaulted other drivers after exiting his truck. For this 

conduct, Johnson was convicted of second-degree robbery, second- and fourth-degree 

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assault, and driving under the influence. Shortly after his release from custody in 2007, 

Johnsonwasarrestedfor felony drivingunder theinfluence, felony eluding, and resisting 

arrest, and although he was not separately convicted for these crimes, he served his 

remaining parole and probation time. And in 2010 and 2012, he violated his parole by 

consuming alcohol and using cocaine, respectively. 

At the sentencing hearing, Johnson self-reported that he had recently 

engaged in alcohol treatment. Johnson acknowledged that he had a “drinking problem” 

in the past, but he asserted that he had “curbed” this problem “after [his] last DUI.” In 

its comments, the superior court suggested that Johnson’s recent alcohol treatment 

demonstrated there were still “alcohol issues at play.” 

Given Johnson’s substance-related criminal history and his recent alcohol 

treatment, the superior court could validly conclude that conditions restricting Johnson’s 

use of alcohol and illegal drugs, and requiring evaluation, testing, and monitoring for 

alcohol and substance abuse, were reasonably related to Johnson’s rehabilitation.28 We 

therefore conclude that the superior court did not abuse its discretion in imposing 

General Condition No. 9 and Special Conditions Nos. 1-8. 

Conclusion 

WeREVERSESpecialConditionNo. 9, which regulatesJohnson’s contact 

with Holly Johnson. WeVACATESpecialCondition No.11,whichregulates Johnson’s 

contact with Spencer Johnson, and remand for reconsideration. Further, we direct the 

superior court to expressly limit General Condition No. 7 (precluding contact with 

28 See Phillips v. State, 211 P.3d 1148, 1153 (Alaska App. 2009) (noting that a 

sentencing judge may impose a probation condition authorizing warrantless searches for 

drugs and alcohol “when substance abuse in the defendant’s background suggests that 

searches for drugs and alcohol may further the defendant’s rehabilitation”). 

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felons) so that it does not restrict Johnson from having contact with Holly Johnson, and 

so that it does not restrict contact with Spencer Johnson beyond whatever limitations the 

court may impose in a revised Special Condition No. 11. 

With these exceptions, we AFFIRM the judgment of the superior court. 

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