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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

ROBERT JOEL MOLLICA II, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-13046 

Trial Court No. 3AN-11-04977 CR 

O P I N I O N 

No. 2711 — October 22, 2021 

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Kari Kristiansen, Judge. 

Appearances: Emily Jura, Assistant Public Defender, and 

Samantha Cherot, Public Defender, Anchorage, for the 

Appellant. Terisia K. Chleborad, Assistant Attorney General, 

Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 

Attorney General, Juneau, for the Appellee. 

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

Judges. 

Judge ALLARD. 

RobertJoel MollicaII wasdischargedfromthePalmer WellnessCourt after 

he committed a domestic violence assault against his girlfriend, and then, shortly after 

being released fromjail for the assault, absconded fromhis housing program, used illegal 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

drugs, and attempted to break into the Anchorage Police Department, resulting in a new 

criminal charge of criminal trespass. 

On appeal, Mollica does not dispute that he committed these actions; nor 

does he necessarily dispute that they constitute good cause for his discharge from 

Wellness Court. Instead, he argues only that the procedures by which he was discharged 

from Wellness Court violated due process because, according to Mollica, he was not 

given “notice or the opportunity to respond” to the reasons for his discharge. 

We have not previously addressed the due process rights of a criminal 

defendant facing discharge from a post-plea therapeutic court program. In accordance 

with the majority of other jurisdictions that have considered this question, we now hold 

that a defendant facing discharge from a post-plea therapeutic court program has due 

process rights akin to the limited due process rights of parolees and probationers facing 

revocation of their parole or probation. These rights include the right to written notice 

of the grounds for discharge, disclosure of the evidence against the participant, and an 

opportunity to challenge that evidence and offer any defenses or mitigating information. 

Here, the record is clear that Mollica was on notice of the grounds for his 

discharge and that he was given an opportunity to be heard. The record is also clear that 

Mollica never raised any objections to the procedures used to discharge him and he did 

not dispute the factual grounds for discharge. Given these circumstances, we conclude 

that reversal of the superior court’s order discharging Mollica fromWellness Court is not 

required. 

Mollica also challenges the sentence that was imposed for his probation 

violation. For the reasons explained here, we affirmthe sentence as not clearly mistaken. 

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Background facts and prior proceedings 

In 2013, Mollica pleaded guilty, pursuant to a plea agreement, to seconddegree robbery following an incident in which he stole items from an Anchorage Fred 

Meyer store and threatened a security guard with a long, fixed-blade knife.1 Mollica also 

pleaded guilty, under the agreement, to violating the conditions of his release because he 

failed to attend a pretrial hearing.2 The superior court sentenced Mollica to 10 years with 

5 years suspended (5 years to serve) and a 5-year term of probation for these crimes. 

In 2015, after Mollica was released from custody and began serving his 

probation, the State filed a petition to revoke Mollica’s probation based on an incident 

in which he kicked in the door of an occupied residence in Anchorage. The State later 

amended the petition to include additional allegations of illegal drug use. The superior 

court revoked Mollica’s probation for these violations and imposed 60 days of Mollica’s 

suspended time to serve. Mollica then returned to probation. 

In 2016, the State filed a second petition to revoke Mollica’s probation 

based on an incident in which Mollica broke into an unoccupied child care center in 

Palmer with a bloody knife and syringes. As a result of this conduct, Mollica was also 

separately charged in a new criminal case with second-degree burglary and third-degree 

criminal mischief.3 

The parties later agreed to resolve these two matters — the second petition 

to revoke probation in the Anchorage case and the new burglary charge in the Palmer 

case — through a Criminal Rule 11 plea agreement. The agreement required Mollica to 

1 AS 11.41.510(a)(1). 

2 AS 11.56.757(b)(1). 

3 AS 11.46.310 and AS 11.46.482(a)(1), respectively. 

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enter and complete the Palmer Wellness Court. The Palmer Wellness Court is a 

therapeutic court that is focused on substance abuse treatment.4 

As part of his Wellness Court agreement, Mollica agreed to admit the 

second probation violation in the Anchorage case. If Mollica successfully completed 

Wellness Court, the second petition to revoke probation would be dismissed, and 

Mollica’s probation would be terminated. However, if Mollica was discharged from 

Wellness Court prior to completing the program, the petition would proceed to the 

disposition stage, and the superior court would sentence Mollica on the probation 

violation. 

In addition, aspart ofthe agreement, Mollica agreed to plead guilty to thirddegree criminal mischief in the Palmer case and to receive a 30-month suspended 

sentence.5 This sentence would remain suspended if Mollica completed the Wellness 

Court program, but 30 months would be imposed as time to serve if Mollica was 

discharged from the program. 

4 See Alaska Court System, PUB-118, Alaska Therapeutic Courts: Palmer Wellness 

Court (2019), https://public.courts.alaska.gov/web/forms/docs/pub-118.pdf (describing 

Palmer Wellness Court). As a general matter, therapeutic courts — variably known as drug 

courts, support courts, and wellness courts — bring justice system players together to support 

the treatment and rehabilitation of participants. Parties involved typically include a judge, 

prosecutor, defense attorney, and probation officer. Other community service providers and 

law enforcement officials may also participate. To facilitate this collaboration, “the 

prosecutor and defense counsel must shed their traditional adversarial courtroom relationship 

and work together as a team.” National Association of Drug Court Professionals, Drug Court 

Standards Committee, Defining Drug Courts: The Key Components 3 (2004 reprinting). 

5 AS 11.46.482(a)(1). 

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The terms and conditions of Mollica’s Wellness Court participation 

As part of the Wellness Court program, Mollica was required to attend 

therapeutic court proceedings, follow an individualized treatment plan, take and pass 

regular alcohol and drug screenings, report contacts with law enforcement and changes 

in address or employment to his probation officer, “eliminate problems contributing to 

addiction,” and “make suitable progress towards controlling addiction.” 

A therapeutic court team oversaw Mollica’s participation in Wellness 

Court. The team included the therapeutic court judge, the prosecutor, Mollica’s defense 

attorney, and a probation officer/case manager. The team met prior to regularly 

scheduled court status hearings to review and discuss the progress of Mollica and other 

Wellness Court participants. The participants were not permitted to be present. As part 

of his agreement, Mollica was required to waive any right to attend these meetings. 

However, Mollica and the other participants in the program attended the regularly 

scheduled status hearings. 

Under theagreement, “[s]anctions w[ould] bediscussed by the[therapeutic 

court] team” and would “not necessarily be placed on the record.” The agreement further 

stated, “Ultimately, the therapeutic court judge will decide if specific sanctions will be 

imposed. The final decisions about the imposition of sanctions are in the Court’s sole 

discretion. The participant has no right to appeal the Court’s decisions.” 

A nearly identical provision applied to the decision to discharge a 

participant from the Wellness Court. According to the agreement, “[t]he decision 

regarding a participant’s discharge will be discussed by the team” and “[t]hese 

discussions will not necessarily be placed on the record.” In the end, however, “the 

therapeutic court judge will decide if a defendant is discharged from the program” and 

“[t]he final decisions about discharge are in the Court’s sole discretion” and cannot be 

appealed by a participant. 

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TheRule11 pleaagreement further set forth thecircumstancesunder which 

a participant could be discharged from Wellness Court. The agreement provided that 

discharge from the program may occur if: 

progressive sanctions have previously been ordered and 

treatment adjustments have been made, but the therapeutic 

court judge concludes that the participant: 

(i)	 will not be able to complete the program within 

two years; 

(ii)	 is consistently undermining the progress of 

others in the therapeutic court program; 

(iii)	 has stalked, threatened, assaulted or otherwise 

harassed other therapeutic court participants; 

(iv)	 falsified alcohol or drug test samples or results 

or falsely reported attendance at program 

meetings; 

(v)	 provides excessive positive, diluted, or missed 

drug test samples; or, 

(vi)	 will not be able to make regular progress in the 

therapeutic court program because the 

participant requires resources or services that 

the therapeutic court program cannot provide. 

The agreement provided that the participant will be discharged from 

Wellness Court upon any of the following circumstances: 

(i)	 Conviction of a crime involving distribution of 

drugs. 

(ii)	 Conviction of a DUI, any felony offense or any 

misdemeanor under AS 11.41, with the 

exception of reckless endangerment, second 

degree custodial interference or indecent 

exposure. 

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(iii)	 Use of a false identity that has concealed a 

criminal history which would disqualify the 

participant from admission to the program; or 

(iv)	 Six positive, missed, diluted, tampered or 

falsified alcohol or drug tests after admission to 

the therapeutic court program. However, for 

ANY positive, missed, diluted, tampered, or 

falsified alcohol or drug test, the therapeutic 

court team will seriously evaluate whether the 

participant’s continued participation in the 

program will be permitted. 

(v)	 Upon a judicial finding of a preponderance of 

the evidence, that the participant drove any 

motor vehicle (as defined in AS 28.90­

.990(a)(l6)) when ordered not to do so. 

Although the agreement specified that a participant “will” be discharged if 

any of the listed circumstances occurred, the agreement had a savings clause that 

provided discretion to not discharge a participant: “The Therapeutic Court Team 

reserves the right to review each situation requiring discharge from the program on a 

case-by-case basis. Upon unanimous agreement of the team, an individual may be 

conditionally reinstated in the program.” 

Mollica’s performance in Wellness Court 

Mollica entered the Palmer Wellness Court in June 2017. Two months 

later, Mollica was arrested for assaulting his girlfriend. Mollica pleaded guilty to fourthdegree assault in 3PA-17-01372 CR and received a sentence of 30 days to serve.6 

AS 11.41.230(a)(1). 

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Because Mollica was convicted of a misdemeanor crime under AS 11.41 

(crimes against a person), he could have been discharged from the program under the 

provision that stated “[t]he participant will be discharged from the [Wellness] Court 

Program upon . . . [c]onviction of . . . any misdemeanor under AS 11.41, with the 

exception of reckless endangerment, second-degree custodial interference or indecent 

exposure.” 

However,thetherapeuticcourtteamexerciseditsdiscretion toconditionally 

reinstate Mollica in the program with additional restrictions, including additional 

treatment, a curfew, and a no-contact order with the assault victim. At a Wellness Court 

hearing on September 7, 2017, Mollica expressed his gratitude to the court for allowing 

him to remain in the program. 

On September 11, Mollica was released from custody for the assault on his 

girlfriend, and he entered transitional housing for substance abuse treatment. 

Three days later, on September 14, Mollica had a regularly scheduled 

Wellness Court hearing. After checking in with the court, Mollica acknowledged that 

he had been “butting heads” with people in treatment. The court reminded Mollica that 

“things are evaluated on a weekly basis,” that it was a “tight operation at this point,” and 

that Mollica had “a lot at stake,” including several years hanging over his head. 

The court then discussed an incident that occurred on Mollica’s first day 

at the housing program, September 11. Mollica admitted to going to collect his car, 

phone, and clothing instead of going straight to the housing unit, where a staff member 

was waiting to check him in. The court sanctioned Mollica with six hours of community 

work service to impress upon him the importance of following the program’s rules. 

Mollica said that he would complete the community work service, and that the court 

would see improvement by the following week. 

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The prosecutor also noted on the record that, as far as the State was 

concerned, Mollica had already “used his one chance” when he was not discharged for 

the August assault. The prosecutor stressed that Mollica needed to follow through on his 

promises to work harder. 

After being sanctioned at the hearing, Mollica did not return to his 

transitional housing program as required. Instead, he absconded from the program and 

did not attend his required therapeutic meetings. The next day, Mollica drove his car (a 

violation of Wellness Court rules) and abandoned his vehicle in the middle of Tudor 

Road in Anchorage. Mollica was subsequently arrested and charged with criminal 

trespass in a new case (3AN-17-07513 CR) after he attempted to enter the Anchorage 

Police Department unlawfully.7 Mollica admitted to being under the influence of drugs 

during this incident. 

In response to the new incident, the State filed a third petition to revoke 

Mollica’s probation in the Anchorage robbery case (3AN-11-04977 CR). The petition 

alleged that Mollica had violated the conditions of his probation by committing a new 

offense, criminal trespass. 

The State also filed a motion for Mollica’s immediate remand to custody, 

alleging that Mollica had violated the conditions of release set by the Palmer Wellness 

Court. The motion was supported by an affidavit that described Mollica’s conduct on 

September 14 and 15 — namely, that Mollica had absconded from his housing program, 

failed to attend therapeutic meetings, driven and abandoned his car in the middle of the 

road, and been arrested for a new crime, criminal trespass. 

On September 18, a hearing was held on the third petition to revoke 

probation in the Anchorage robbery case. At the hearing, Mollica admitted that he had 

Anchorage Municipal Code 08.45.010(A)(3)(a). 

– 9 – 2711
 

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violated his probation by “committing the offense of criminal trespass,” and the court 

imposed 10 days of his suspended time.8 

The Palmer Wellness Court held a regularly scheduled meeting that same 

week. Although Mollica’s attorney was present, Mollica was not because he was still 

in custody in Anchorage. The court delayed “sentencing” and “imposing the Rule 11” 

until the following week. 

Mollica was present at the next hearing on September 28. The hearing 

began with the court asking Mollica how he was doing. Mollica indicated that he “could 

be better,” and the court acknowledged that “this is not a happy day for me either.” The 

court noted that they had been “trying to figure out ways to avoid where we are today” 

and “it’s a sad day for me to have to see where we’re at.” The court then explained that 

the problem was not just the “lack of participation, sort of running away from the entire 

thing” but that it was the criminal conduct on top of the lack of participation “that makes 

it really tough to keep you back in the program.” 

Mollica acknowledged he had struggled to stay sober, but he requested that 

he be allowed to continue in Wellness Court and do residential treatment. Mollica 

admitted that he had used drugs, and he stated that he had not returned to his housing 

because he did not want to jeopardize the sobriety of the other participants. He also 

stated that he went to the police department in order to turn himself in. Mollica did not 

otherwise dispute the allegations in the State’s petition to revoke probation and motion 

for immediate remand. 

Mollica’s defense attorney also requested that Mollica be allowed to stay 

in the program. She acknowledged that Mollica had “really messed up” and that the rest 

According to CourtView, Mollica ultimately pleaded guilty to the separate charge of 

criminal trespass on October 19, 2017. 

– 10 – 2711
 

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of the therapeutic court team believed discharge was appropriate. But she argued that 

Mollica should be allowed to stay so that he could undertake residential treatment. 

After listening to Mollica and his defense attorney, the court decided that 

it would not make a final decision that day. Instead, it would discuss the matter further 

with the therapeutic court team. The court indicated that it intended to review what 

Mollica had been doing “over the last month or so” and was particularly concerned about 

community safety in light of his new criminal conduct. 

At the end of the hearing, another Wellness Court participant spoke on 

Mollica’s behalf, stating that when Mollica was sober he was a “stand-up person.” The 

participant stated that Mollica had been instrumental in helping him engage in the 

program. 

The next hearing was held a week later, on October 5. At the hearing, the 

court indicated that it had met with the treatment team and considered their 

recommendations. The court asked if anyone had any additional statements to make 

before the court made its final decision. Mollica’s defense counsel restated her position 

that Mollica should be allowed to remain in Wellness Court. The court then asked 

Mollica directly if there was anything further that he wanted the court to know. Mollica 

did not have anything to say about the imminent decision regarding discharge. However, 

he did ask the court to recommend to the Department of Corrections that he be admitted 

to the Residential Substance Abuse Treatment program once he was incarcerated. 

The court then made its final decision, noting that it had taken several 

weeks to come to this decision and it did not come to it “lightly.” The court noted that, 

at times, Mollica had done well, but found that, overall, Mollica had done “extremely 

poorly” in the approximately three months he had participated in Wellness Court. The 

court further found that when Mollica used drugs, he became violent and unpredictable. 

The court noted that, on September 14, Mollica had been specifically told to go directly 

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to his housing unit, not to drive, and to attend all of his appointments. But he “blew all 

that off.” The court indicated that the pertinent question was whether the program could 

meet his needs, and his recent behavior showed that the program was not working for 

him. 

The court also explained that it was “extremely concerned” about how 

Mollica’s conduct impacted other treatment participants. The court referred to an 

incident, not previously discussed on the record, in which Mollica had apparently 

brought an intoxicated woman to treatment. 

The court also referred to the August assault, noting the seriousness of the 

assault and how relatively recent it was. The court cited to an incident, also not 

previously discussed on the record, in which the probation officer heard a recorded 

phone call between Mollica and his girlfriend (the victim of the assault). In this phone 

call, Mollica attempted to pressure his girlfriend into writing a letter of support for him 

when she did not want to. 

Ultimately, the court concluded that Mollica should be discharged based 

on two different provisions in the Wellness Court agreement — (ii) “[the participant] is 

consistently undermining the progress of others in the therapeutic court program” and 

(vi) “[the participant] will not be able to make regular progress in the therapeutic court 

program because the participant requires resources or services that the therapeutic court 

program cannot provide.” However, the court indicated that it would make the 

recommendation for the Residential Substance Abuse Treatment program that Mollica 

had requested. 

Following his discharge fromWellness Court, Mollica was sentenced to 30 

months to serve in the Palmer case in accordance with his Rule 11 agreement. At a later 

disposition hearing on the second petition to revoke probation in the Anchorage robbery 

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case, the court terminated Mollica’s probation and imposed 3 years of his remaining 

suspended time. 

This appeal followed. 

A preliminary note regarding Mollica’s right to pursue this appeal 

As previously mentioned, in order to join Palmer Wellness Court, Mollica 

was required to sign a Criminal Rule 11 agreement that detailed the terms and conditions 

of his participation in the therapeutic court. As part of this agreement, Mollica agreed 

that the final decision about discharge would rest in the sole discretion of the therapeutic 

court judge, and he would have no right to appeal the judge’s decision. 

In his opening brief, Mollica argues that this waiver of his future appellate 

rights was invalid and against public policy. In response, the State claims that the waiver 

was valid. But the State also contends that the waiver did not apply to a circumstance 

such as the one presented here, where the defendant is not challenging the substance of 

the therapeutic court’s decision but instead is bringing a due process challenge to the 

procedures that led to that decision. 

Because the parties agree that any waiver of Mollica’s appellate rights does 

not apply to this appeal, we do not address the validity of Mollica’s waiver or his public 

policy arguments against such waivers. 

Mollica’s due process challenges to the procedures by which he was 

discharged from the Palmer Wellness Court 

Both the Alaska and United States Constitutions guarantee the right to due 

process.9 Due process entitles individuals to a “meaningful and fundamentally fair” 

U.S. Const. amend. XIV, § 1; Alaska Const. art. I, § 7. 

– 13 – 2711
 

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process when their liberty or property interest is at stake.10 What process is required and 

whether due process has been met is a question of law that we review de novo.11 

Mollica asserts that the proceedings that resulted in his discharge from 

Wellness Court violated two facets of his due process rights: the right to adequate notice 

of the allegations against him and the right to a meaningful hearing where he could 

contest the allegations and offer a defense or a mitigating explanation.12 In response, the 

State argues that the procedures provided to Mollica were sufficient to satisfy due 

process. The State also asserts that instituting overly formalized or adversarial 

proceedings in therapeutic court would harm the efficacy of such courts. 

We begin our analysis by noting that there is little appellate case law in 

Alaska addressing the due process rights of criminal defendants who participate in a 

post-plea therapeutic court program such as the Palmer Wellness Court. However, a 

significant body of law has developed in other jurisdictions. 

The general consensus among courts that have grappled with these issues 

is that therapeutic court participants facing termination are entitled to due process rights 

akin to those afforded to parolees and probationers.13 Thus, when defining the due 

10 See Champion v. Dep’t of Pub. Safety, 721 P.2d 131, 133 (Alaska 1986). 

11 D.M. v. State, Div. of Fam. & Youth Servs., 995 P.2d 205, 207 (Alaska 2000). 

12 See Powell v. State, 460 P.3d 787, 793 (Alaska App. 2020) (“Due process requires 

that there be adequate notice to the interested parties of the pendency of the action and the 

opportunity for the interested parties to be heard.”). 

13 See, e.g., State v. Shambley, 795 N.W.2d 884, 894 (Neb. 2011) (noting that “[t]he 

majority of other courts considering the issue have determined that participants facing 

termination from post-plea diversion programs, such as the drug court program, are entitled 

to the same due process protections as persons facing termination of parole or probation”); 

see also Gaither v. State, 296 So. 3d 553 (Fla. App. 2020); State v. Rogers, 170 P.3d 881 

(continued...) 

– 14 – 2711
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

process rights of therapeutic court participants, courts have frequently turned for 

guidance to Morrissey v. Brewer and Gagnon v. Scarpelli, the United States Supreme 

Court’s seminal cases governing the due process rights of parolees and probationers in 

revocation proceedings.14 We do the same here. 

In Morrissey v. Brewer, the United States Supreme Court held that due 

process attaches to parolees in parole revocation proceedings, despite the conditional 

nature of a parolee’s liberty interest and the fact that parole revocation occurs after the 

end of the criminal prosecution.15 The Court came to the same conclusion regarding 

probation revocation proceedings in Gagnon v. Scarpelli.

16 As the Court explained: 

Both the probationer or parolee and the State have interests 

in the accurate finding of fact and the informed use of 

discretion — the probationer or parolee to insure that his 

liberty is not unjustifiably taken away and the State to make 

certain that it is neither unnecessarily interrupting a 

13 (...continued) 

(Idaho 2007); People v. Anderson, 833 N.E.2d 390 (Ill. App. 2005); Gosha v. State, 931 

N.E.2d 432 (Ind. App. 2010); State v. Brookman, 190 A.3d 282 (Md. 2018); People v. 

Joseph, 785 N.Y.S.2d 292 (N.Y. App. 2004); State v. Perkins, 661 S.E.2d 366 (S.C. 2008); 

State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993); Harris v. Commonwealth, 689 S.E.2d 713 

(Va. 2010); State v. Cassill-Skilton, 94 P.3d 407 (Wash. App. 2004). See generally National 

Drug Court Institute, The Drug Court Judicial Benchbook 164-69 (Douglas B. Marlowe & 

William G. Meyer eds., rev. 2017) (discussing the approaches of courts to determine the due 

process rights of defendants in drug courts). 

14 Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973). 

15 Morrissey, 408 U.S. at 480 (“Revocation deprives an individual, not of the absolute 

liberty to which every citizen is entitled, but only of the conditional liberty properly 

dependent on observance of special parole restrictions.”). 

16 Gagnon, 411 U.S. at 782; see also Paul v. State, 560 P.2d 754, 756 (Alaska 1977) 

(explaining due process requirements apply to both parole and probation revocations). 

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successful effortatrehabilitationnor imprudently prejudicing 

the safety of the community.[17] 

The same interests are at stake in therapeutic court programs. As the 

Nebraska Supreme Court explained in State v. Shambley: 

As with parole and probation, it is in the State’s 

interests that drug court participants are restored to a normal 

and useful life. This is, after all, the point of the program. 

Accordingly, the State, like the participant, has an interest in 

seeing that there is a termination process which ensures 

participants are not terminated from the program because of 

erroneous information or because of an erroneous evaluation 

of the need to terminate.[18] 

An Illinois appellate court similarly explained: 

The drug-court program is a form of conditional 

liberty like supervision, probation, or parole. Each program 

requires the participant to comply with certain conditions or 

face the loss of the privilege. Revocation of that privilege 

may not be accomplished without inquiry. 

. . . . 

Even though defendant did not have the right to 

participate in the drug-court program, as it was a matter of 

legislative and judicial grace, due process should 

circumscribe summary dismissal from that program.[19] 

17 Gagnon, 411 U.S. at 785; see also Morrissey, 408 U.S. at 484 (“Society thus has an 

interest in not having parole revoked because of erroneous information or because of an 

erroneous evaluation of the need to revoke parole, given the breach of parole conditions.”). 

18 Shambley, 795 N.W.2d at 894. 

19 People v. Anderson, 833 N.E.2d 390, 395 (Ill. App. 2005). 

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Recognizing that dueprocess appliestoterminations fromtherapeuticcourt 

programs is also consistent with the intended rehabilitative purpose of such programs. 

As the United States Supreme Court explained in the context of parole revocations, 

“Society has a further interest in treating the parolee with basic fairness: Fair treatment 

in parole revocations will enhance the chance of rehabilitation by avoiding reactions to 

arbitrariness.”20 The same is true with regard to participants facing termination from a 

therapeutic court program. If the process is fair, the participant is more likely to accept 

the outcome, even if adverse. 

The question, therefore, becomes how much process is due to a participant 

facing termination froma therapeuticcourt program? As the Supreme Court emphasized 

in Morrissey, the requirements of due process are flexible, and “not all situations calling 

for procedural safeguards call for the same kind of procedure.”21 Because parole and 

probation revocations are not part of a criminal prosecution, the full panoply of rights 

due to a defendant in a criminal proceeding does not apply. Instead, the procedures can 

be more flexible and informal than would occur at a criminal trial.22 

Ultimately, the due process protections recognized in Morrissey and 

Gagnon include: (1) written notice of the claimed violations; (2) disclosure to the 

parolee/probationer of the evidence against them; (3) the opportunity to be heard in 

person and to present witnesses and documentary evidence; (4) the right to confront and 

cross-examineadversewitnesses (unless thehearing officerspecificallyfinds good cause 

for not allowing confrontation); (5) an independent decisionmaker; and (6) a record by 

20 Morrissey, 408 U.S. at 484. 

21 Id. at 481. 

22 Id. at 489-90; Gagnon, 411 U.S. at 781-82. 

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the factfinder as to the evidence relied on and the reasons for revoking parole or 

probation.23 

These requirements are not intended to result in overly formalized 

procedures. As the Supreme Court emphasized, “[T]he process should be flexible 

enough to consider evidence including letters, affidavits, and other material that would 

not be admissible in an adversar[ial] criminal trial.”24 

Moreover, a court’s failure to comply with one of these requirements does 

not automatically require reversal of the revocation on appeal.25 For example, the 

appellate court will not reverse a revocation solely because the probationer did not 

receive written notice if the probationer received adequate oral notice and there were no 

objections to a lack of notice in the proceedings below.26 

In the current case, Mollica asserts that he “never received written notice 

of his potential termination from therapeutic court or the purported grounds for that 

termination.” He also argues that he did not receive adequate oral notice. 

23 Morrissey, 408 U.S. at 489; Gagnon, 411 U.S. at 786. Morrissey and Gagnon both 

require a “written statement” of the factfinder’s decision, but subsequent case law has made 

clear that this requirement is met by an oral record. See Black v. Romano, 471 U.S. 606, 616 

(1985); United States v. Yancey, 827 F.2d 83, 88-89 (7th Cir. 1987); see also 2 Neil P. 

Cohen, The Law of Probation and Parole § 25:22 (2d ed. 2020) (describing the purposes 

served by the record of a revocation hearing and the necessary components to be included 

in the record under Morrissey). 

24 Morrissey, 408 U.S. at 489. 

25 Cf. 2 Neil P. Cohen, The Law of Probation and Parole § 18:3 (2d ed. 2020) (“In 

sketching these mandatory procedures, the Morrissey Court was careful to note that it was 

not trying to create an ‘inflexible structure.’ The actual details of revocation procedures, it 

held, were the responsibility of individual states.”). 

26 See State v. Patton, 68 N.E.3d 273, 277 (Ohio App. 2016). 

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But the record indicates otherwise. As the State points out, Mollica 

received written notice of his potential termination from the therapeutic court when the 

State filed its motion for immediate remand for violating the conditions of his release in 

the Palmer Wellness Court. The motion was supported by an affidavit that detailed the 

violations, which included Mollica absconding from his housing program, using illegal 

drugs, failing to attend therapeutic meetings, driving and then abandoning his car in the 

middle of the road, and being arrested for a new criminal offense, criminal trespass. 

It is true that the motion for immediate remand did not directly apprise 

Mollica of the fact that he was facing termination based on this conduct. But the record 

demonstrates that Mollica was well aware of that fact. Both the judge and the prosecutor 

had warned Mollica at the September 14 hearing that he needed to comply fully with the 

program after being conditionally reinstated following the domestic violence assault 

against his girlfriend. Despite these warnings, Mollica left the hearing and engaged in 

the conduct that led to his termination. 

Mollica’s statements at the September 28 hearing also demonstrate that he 

was well aware that he was facing termination based on his recent conduct. And there 

is nothing in the record to suggest that he was unprepared for the September 28 hearing. 

Indeed, the record suggests that he had arranged for another Wellness Court participant 

to speak on his behalf at that hearing. 

Giventhesecircumstances, werejectMollica’s claimthathedid not receive 

adequate notice of the termination hearing or the grounds for termination. 

We likewise reject Mollica’s claim that he was never provided with an 

opportunity to be heard with regard to the discharge decision. The record shows that 

Mollica was given an opportunity to be heard at the September 28 hearing and to present 

any defense or mitigating evidence he might have. At that hearing, Mollica admitted to 

using drugs and absconding fromthe housing program, but he put forward the mitigating 

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explanation that he had not returned to the housing unit because he did not want to 

jeopardize the sobriety of the other participants. Mollica also asserted that he was at the 

Anchorage Police Department because he wanted to turn himself in. Contrary to 

Mollica’s arguments on appeal, there is nothing in the record to suggest that Mollica felt 

he was being treated unfairly or that there was additional evidence or information that 

Mollica wanted the court to consider. 

We also note that Mollica was expressly given an opportunity to be heard 

at the October 5 hearing in which the therapeutic court judge made her final decision 

regarding termination. Mollica took this opportunity to request the recommendation for 

the Residential Substance Abuse Treatment program, but he had nothing additional to 

say. 

On appeal, Mollica takes issue with the therapeutic court judge’s reference 

in the October 5 hearing to “previously unmentioned incidents” — namely, Mollica 

bringing an intoxicatedwoman to treatment and Mollicapressuringhis girlfriend to write 

him a letter of support. Mollica argues that the judge’s references to these incidents 

show that “the purported basis for which Mollica faced termination shifted during the 

proceedings.” 

We disagree with this characterization of the record. It is clear from the 

record that Mollica was terminated from the program because of his conduct on 

September 14 and 15 — the conduct for which he had notice and an opportunity to 

respond. It is also apparent that this conduct led to his termination because it occurred 

only days after he was released from custody for committing what was an otherwise 

disqualifying domestic violence assault against his girlfriend. 

Notably, neither Mollica nor his attorney objected to the references to the 

other incidents mentioned at the October 5 hearing. Nor did either of them express 

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surprise at the references to the other incidents. On the contrary, it appears that the court 

was referencing incidents that were already known to the parties. 

We also do not find persuasive Mollica’s assertion on appeal that he never 

had an opportunity to respond to these allegations. Even if Mollica felt ill-prepared to 

respond to these incidents in the October 5 hearing, Mollica could certainly have 

challenged the incidents at his later disposition hearing. Indeed, we would expect that 

Mollica would have challenged them at the disposition hearing if he actually believed 

they had been important to the court’s decision to discharge him and if he, in fact, had 

grounds to challenge them. Accordingly, we conclude that any error in the court’s 

reference to additional incidents at the October 5 hearing was harmless given the larger 

context in which they occurred and the due process protections that Mollica did receive. 

All that said, we agree, as a general matter, that a defendant should be given 

notice and an opportunity to respond to information that will be used against them in a 

termination decision. We note that therapeutic judges are privy to a significant amount 

of information about therapeutic court participants and that much of this information is 

shared in off-the-record team meetings where the defendants’ attorneys are present, but 

defendants are not. While we recognize the value of informality in therapeutic court 

proceedings as a general matter, we encourage courts to adopt more formalized 

procedures for termination hearings in order to ensure that basic due process protections 

are met.27 

27 The question of what process is due for intermediate sanctions is not before us in this 

case. We note, however, that courts in other jurisdictions have held that intermediate 

sanctions do not implicate the same due process concerns as the decision to terminate a 

participant from the program. See State v. Rogers, 170 P.3d 881, 886 (Idaho 2007) 

(explaining that it is not the court’s intent to impede the functioning of diversionary 

programs,“[i]ntermediate sanctions imposed in these programs do not implicate the same due 

(continued...) 

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Mollica also argues that he was denied due process because, according to 

Mollica, the court failed to identify the “progressive sanctions” and “treatment 

adjustments” that had previously been made in his case. But it is clear from the record 

that the parties were already aware of the prior sanctions, such as six hours of community 

service, and treatment adjustments, such as Mollica’s placement in transitional housing. 

They were also aware that Mollica had been conditionally reinstated in the programafter 

his domestic violence assault against his girlfriend only as an act of clemency. On 

appeal, Mollica attempts to downplay the significance of that assault and the fact that his 

new misconduct occurred only three days after he was released from custody for the 

assault. But this background was clearly considered by the therapeutic court judge and 

formed an important part of her discharge decision. 

Lastly, we note that Mollica’s case stands in stark contrast to cases in other 

jurisdictions where termination decisions have been vacated because of a denial of due 

process.28 In State v. Shambley, for example, Shambley was discharged from a 

therapeutic court for testing positive for drugs.29 Shambley denied that she had used 

drugs on that occasion. At the termination hearing, Shambley was told that the team had 

27 (...continued) 

process concerns, and continued use of informal hearings and sanctions need not meet the 

procedural requirements” that apply to termination decisions). 

28 See, e.g., People v. Anderson, 833 N.E.2d 390 (Ill. App. 2005) (defendant summarily 

dismissed from drug court without a hearing); Gosha v. State, 931 N.E.2d 432 (Ind. App. 

2010) (defendant discharged without prior notice and over his request for an evidentiary 

hearing); Harris v. Commonwealth, 689 S.E.2d 713 (Va. 2010) (defendant not present at 

termination hearing from drug court and given no opportunity to be heard); State v. 

Cassill-Skilton, 94 P.3d 407 (Wash. App. 2004) (defendant discharged despite no notice of 

violations, no record of any hearing, and no record of any findings by trial court). 

29 State v. Shambley, 795 N.W.2d 884, 890 (2011). 

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recommended that she be discharged and that she bore the burden of showing why 

discharge was not appropriate. The only evidence produced to support the termination 

was a letter with attachments from the drug court coordinator summarizing Shambley’s 

difficulties in drug court. The attachments included an e-mail from an unidentified 

author to an unnamed recipient asserting that one of the drug tests in question was 

“negative with a weak concentration, but should nevertheless be considered a positive 

result.”30 Shambley’s lawyer objected to any consideration oftheletter or itsattachments 

on hearsay and foundation grounds. The lawyer also objected on due process grounds, 

asserting that Shambley had not been given proper notice and was unable to challenge 

the hearsay reports and unauthorized laboratory reports effectively. The therapeutic 

court judge overruled all of these objections. The Nebraska Supreme Court later 

overturned these rulings and agreed with Shambley that basic due process protections 

had not been met.31 

Here, in contrast to Shambley, Mollica never objected to any of the 

procedures used to discharge him from the program. Mollica also never suggested that 

there was evidence that he wanted to challenge, or additional testimony or proof that he 

wanted to present. Indeed, the record shows that Mollica directly admitted the conduct 

at issue and that he had a meaningful opportunity to challenge the grounds for 

termination. 

To summarize, we now join courts in other jurisdictions in holding that a 

defendant facing termination from a therapeutic court program is entitled to due process 

protections akin to the limited due process protections that apply to parolees and 

probationers facing revocation of their parole or probation. These protections include 

30 Id. 

31 Id. at 895, 889-90. 

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written notice of the grounds for discharge, disclosure of the evidence against the 

participant, and an opportunity to rebut that evidence and offer any defenses or 

mitigating information. 

However, because we are convinced, based on our review of the entire 

record, that Mollica received these basic due process protections and that any 

deficiencies in the procedures used to terminate Mollica fromthe Palmer Wellness Court 

did not prejudice Mollica, we affirm the termination decision in this case. 

Mollica’s excessive sentence claim 

Mollica separately raises an excessive sentence claim with regard to his 

sentence for the second petition to revoke probation in his Anchorage case. 

After being discharged from Wellness Court, Mollica faced sentencing in 

his two underlying cases — 3AN-11-04977 CR (the second petition to revoke probation 

in the Anchorage robbery case) and 3PA-16-02513 CR (the Palmer criminal mischief 

case). In the Palmer case, the court imposed the 30-month sentence that the parties had 

agreed to as part of their Rule 11 agreement. In the Anchorage case, the court scheduled 

a disposition hearing to address the second petition to revoke probation. 

At the disposition hearing, the prosecutor reviewed Mollica’s criminal 

history, which included three prior felonies, the underlying robbery, and the new 

criminal convictions Mollica had accrued through his probation violations. The 

prosecutor argued that all of Mollica’s suspended time (approximately 4 years and 

10 months) should be imposed, asserting that probation was not working for Mollica. 

Mollica’s probation officer agreed that Mollica’s probation should be terminated, and he 

should receive a flat sentence — i.e., a sentence that did not include probation or 

suspended time. The defense attorney argued that Mollica should receive a shorter 

sentence and then be returned to probation. 

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The court found that Mollica “violated his probation to the letter[,] . . . he 

ha[d] seriously not done well on probation for this robbery, and . . . the court would be 

well within its right to impose all of his time.” However, the court concluded that the full 

amount of suspended time was not necessary given the time Mollica would serve in the 

Palmer criminal mischief case. Therefore, the court terminated Mollica’s probation and 

imposed 3 years to serve of the approximately 4 years and 10 months remaining on 

Mollica’s sentence. 

Mollica now appeals the 3-year sentence as excessive, raising several 

arguments. First, he contends that he is entitled to be resentenced because he was 

deprived of an opportunity to meaningfully respond to the court’s reasons for 

discharging him from Wellness Court. But as already explained, Mollica was given a 

meaningful opportunity to respond to the reasons for discharge at the Wellness Court 

hearings. Moreover, there is nothing in the record to suggest that Mollica had additional 

information that he wanted the court to consider at the disposition hearing that he was 

not allowed to submit.32 

Mollica also argues that the trial court failed to consider the underlying 

circumstances of Mollica’s offense — the second-degree robbery in which Mollica 

pulled out a fixed-blade knife after he was caught shoplifting. But the record shows that 

the facts of the underlying offense were discussed at the disposition hearing, and Mollica 

andhis attorney had theopportunity to make whatever mitigating arguments they wanted 

regarding that offense. The record also indicates that the court did not simply reflexively 

32 Contrast Harris, 689 S.E.2d 713 (remanding case for resentencing where defendant 

was not given a discharge hearing and the trial court also refused at the disposition hearing 

to consider defendant’s evidence regarding the reasons for defendant’s discharge from the 

drug court program). 

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impose the remaining suspended time but instead considered the Chaney criteria and 

imposed only a portion of the remaining suspended time.33 

When we review an excessive sentence claim, we independently examine 

the record to determine whether the sentence is clearly mistaken.34 The “clearly 

mistaken” standard contemplates that different reasonable judges, confronted with 

identical facts, will differ on what constitutes an appropriate sentence and that a 

reviewing court will not modify a sentence that falls within a permissible range of 

reasonable sentences.35 

We have independently reviewed the sentencing record in this case, and we 

conclude that the sentence imposed here is not clearly mistaken. 

Conclusion 

The judgment of the superior court is AFFIRMED. 

33 See Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990) (explaining that, when 

imposing a defendant’s suspended sentence, the sentencing court must consider “all available 

sentencing evidence” in light of the Chaney criteria (citing State v. Chaney, 477 P.2d 441, 

443-44 (Alaska 1970))); see also DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997). 

34 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). 

35 See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997). 

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