NOTICE
 

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

VICTORIA DIAMOND LOVE, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11949 

rial Court No. 3AN-13-2222 CR 

O P I N I O N 

No. 2626 — November 30, 2018 

T

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Michael R. Spaan, Judge. 

Appearances: Paul E. Malin, under contract with the Public 

Defender Agency, and Quinlan Steiner, Public Defender, 

Anchorage, for the Appellant. Saritha R. Anjilvel, Assistant 

District Attorney, Anchorage, and Craig W. Richards, Attorney 

General, Juneau, for the Appellee. 

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

Superior Court Judge.* 

Judge MANNHEIMER. 

Victoria Diamond Love assaulted three persons in another apartment in the 

complex where she lived. Following a jury trial, Love was convicted of second-, third-, 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and fourth-degree assault1 for slicing the fingers of one of her victims with a knife, for 

brandishing the knife in a threatening manner, and for putting another of her victims in 

fear of imminent physical injury. 

The pre-sentence report in Love’s case included two pages of recommended 

conditions of probation. Love’s attorney did not object to any of these proposed 

probation conditions. In fact, the only time the defense attorney mentioned the proposed 

conditions of probation was when the attorney told the judge that Love did not object to 

a probation condition prohibiting her from returning to the apartment building. 

When the judge imposed Love’s sentence, he did not specifically mention 

all of these proposed probation conditions. Instead, the judge mentioned only a few of 

the special conditions of probation listed in the pre-sentence report. But later, when the 

judge issued the written judgement in Love’s case, this judgement included all of the 

conditions of probation proposed in the pre-sentence report. 

In this appeal, Love challenges four of the special conditions of probation 

that the judge did not explicitly mention when he imposed Love’s sentence. Love 

contends that the inclusion of these four conditions in the court’s written judgement 

constitutes an illegal increase in her sentence — a violation of the double jeopardy 

clause. 2 

We reject Love’s double jeopardy claim because the record of the 

sentencing proceedings shows that the prosecutor, the defense attorney, and the judge 

were all operating with the understanding that, in the absence of an objection, the judge 

would impose all of the recommended conditions of probation. 

1 AS 11.41.210(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(3), respectively. 

2 Alaska Constitution, Article I, Section 9. 

– 2 – 2626
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At the sentencinghearing, the judge referred to the recommended probation 

conditions as a group. For example, the judge asked whether these recommended 

probation conditions included a provision for mental health treatment. When the 

prosecutor replied that such a condition was included, the judge responded, “Good, 

good.” And at another point in the sentencing hearing, after one of Love’s neighbors 

expressed fear that Love might return to their apartment building after she served her 

time in prison, the judge stated that he was going to “expand” the conditions of probation 

by adding a “do-not-return-to-the-apartment condition”. In addition, during the 

sentencing, one of the victims voiced the fear that Love would return to the apartment 

complex and hurt her or her sister (with whom she lived). The judge addressed this 

concern by telling the victim that the list of recommended probation conditions included 

a “no-contact” order that prohibited Love from contacting the victims in the future. The 

judge advised the victim that if Love contacted her sister following her release, she 

should call the police. 

Based on this record, we conclude that the judge intended to impose all of 

the conditions of probation proposed in the pre-sentence report, and that both the 

prosecutor and Love’s attorney understood this to be the case. We therefore find that the 

judge did not violate the double jeopardy clause when he included all of these 

recommended probation conditions in his written judgement, even though he did not 

explicitly mention all of these conditions during his sentencing remarks. 

Love separately challenges Special Probation Condition 5, which requires 

Love to take any medication prescribed for her by a licensed medical practitioner 

approved by her probation officer. This probation condition is subject to specialscrutiny 

because it restricts Love’s right of self-determination regarding medical treatment, and 

also because it potentially requires Love to take psychotropic medication against her 

– 3 – 2626
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

will. 3 However, Love did not object to this condition of probation, so she must now 

show plain error. 4 

Although, on its face, the challenged probation condition applies to any and 

all medications that might be prescribed by Love’s doctors, the probation condition must 

be interpreted in the context of Love’s case. Given this context, we interpret the 

probation condition as applying only to mental health medication that Love’s medical 

providers deem necessary for her rehabilitation and/or the safety of the public. 

However, this interpretation brings the challenged probation condition 

squarely within the scope of our recent decision in Kozevnikoff v. State, __ P.3d __, 2018 

WL 3679314 (Alaska App. 2018). And based on Kozevnikoff, we conclude that the 

challenged probation condition is plain error, at least in its present form. 

In Kozevnikoff, this Court held that even when the record suggests that a 

defendant might need psychotropic medication, the sentencing judge must not impose 

a condition of probation that requires the defendant to take such medication against their 

will unless the judge has held a hearing “where medically informed expert testimony ... 

is presented to the judge”, and where the defendant has “the opportunity to present [their] 

own expert testimony, and to argue for alternatives to any medication at all, or to a 

particular medication.” Id., 2018 WL 3679314 at *2. 

(We also recognized that, especially when the defendant receives a lengthy 

term of imprisonment, it is often better to make this type of decision closer to the time 

when the defendant is released on probation. Thus, a sentencing judge has the authority 

to impose a condition of probation that calls for a judicial hearing near the date of the 

3 See Kozevnikoff v. State, __ P.3d __ , 2018 WL 3679314 at *1-2 (Alaska App. 2018). 

See also United States v. Williams, 356 F.3d 1045, 1055-57 (9th Cir. 2004). 

4 State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018). 

– 4 – 2626
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

defendant’s release if, at that time, the circumstances appear to justify compelled 

medication. Ibid.) 

The record in Love’s case is plainly insufficient to satisfy the procedural 

requisites set forth in Kozevnikoff. Accordingly, we vacate this condition of Love’s 

probation, and we direct the superior court to reconsider it. 

If, upon reconsideration, the superior court concludes that the facts justify 

a probation condition that could potentially require Love to take psychotropic medication 

against her will, this probation condition must be written in such a way that Love can 

seek judicial review before she is required to take the medication, and before she faces 

revocation of her probation for refusing to take the medication. This prior review is 

necessary because of the serious and lasting side-effects that some mental health 

medications can cause. See Myers v. Alaska Psychiatric Institute, 138 P.3d 238, 246-48, 

254 (Alaska 2006). 

Conclusion 

With the exception of Special Condition of Probation 5, the judgement of 

the superior court is AFFIRMED. Special Condition 5 is VACATED, and the superior 

court is directed to reconsider whether this probation condition is justified. If the 

superior court finds that the probation condition is justified, the court must modify the 

probation condition so that it conforms to the requirements explained in this opinion. 

We do not retain jurisdiction of this case. 

– 5 – 2626