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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of
Appeals No. A-3240
Appellant, ) Trial
Court No. 3AN-S89-4174 CR
)
v. )
) O P I N I O N
EDWARD LESLIE STORES, )
) [No. 1148 - July 26, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Douglas B. Baily, Attorney General, Juneau,
for Appellant. R. Scott Taylor, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
ANDREWS, Judge.
Edward Leslie Stores, a parolee, was charged with
second degree escape in violation of AS 11.56.310(a)(1)(B), for
running away from the officer who arrested him for a parole
violation. Stores filed a motion to dismiss the indictment,
which was granted on the grounds that the escape statute did not
apply in cases of parole arrests. The state appeals the order
granting the dismissal of the indictment. We reverse.
On June 16, 1989, an officer from the Anchorage Police
Department observed Stores in an alley. The officer approached
Stores and asked his name and what he was doing. Stores
identified himself and said he was looking for his girlfriend.
The officer then drove away, but called dispatch for a warrants
check on Stores. The officer was advised that a felony warrant
had been issued on Stores for a parole violation. Stores was on
parole after serving time on a burglary conviction.
The officer returned to the location where he had
spoken to Stores, approached, and told Stores that he had a
felony warrant for violations of conditions regarding burglary in
the first degree. Stores placed his hands on the hood of the car
while the officer frisked him, but he ran away as the officer
began handcuffing him. He was apprehended fifteen to twenty
minutes later and charged with second degree escape.
Following the return of the grand jury indictment,
Stores filed a motion to dismiss. Stores argued that he had not
been arrested "for a felony" -- as was required by the escape
statute.1 He claimed that he was arrested merely for a parole
violation and therefore the escape statute did not apply to his
actions.2 The state opposed the motion and argued that Stores
was arrested "for a felony" because he was detained pursuant to
his underlying burglary conviction. The trial court concluded
that the arrest for a parole violation was not "for a felony",
stating that:
I think that the statute requires . . . that
the person remove himself from official
detention for a felony. And I agree with
[defense counsel's] reasoning that it's too
attenuated to say what they really mean is
for the original felony. Here he was not
being arrested for -- was a burglary the
original charge. That simply wasn't what he
was being arrested for. He was arrested
because the officer radioed and found out
there was a parole warrant out for him.
That's what he was being held for. That is
not a felony.
The court went on to note that there are four different
degrees of escape, each with a different sentence, based on
whether the underlying offense was a felony or misdemeanor.
[The legislature] knew enough to distinguish
between felony and misdemeanors. Felony
[has] a distinct definition in the statutes
that simply doesn't fit here. There's no
sentence to be imposed here and it seems
quite clear that the legislature was not
contemplating arrest on parole or even
probation warrants. So I think the motion is
well taken.
Additionally, the judge found that AS
11.56.310(a)(1)(B) was unconstitutionally vague. Accordingly,
the court granted the motion to dismiss the indictment.
The state now appeals the trial court order dismissing
the indictment, arguing that the court misconstrued the meaning
of the second-degree escape statute and that Stores was properly
charged with escape. The state contends that the phrase
"official detention for a felony", means "in connection with a
felony". Based on this definition, the state argues that Stores
was arrested in connection with his burglary conviction and
therefore, was properly charged with escape when he ran away from
the arresting officer.
The state asserts that the four classifications of
escape are based on the seriousness of the underlying offense,
and that arrests for parole and probation violations fall within
these classifications because arrests relate to prior
convictions. The state also points out that if the trial court's
interpretation of the statute is correct, then there is
essentially no punishment under Alaska law for a parolee who
unlawfully departs from an arrest pursuant to a parole violation.
The state argues that such an interpretation is unreasonable. We
agree.
An analysis of principles and goals of parole leads us
to conclude that the escape statute covers the act of removing
oneself from detention based on parole arrest warrant. The
intent and purpose of parole was explained by the Supreme Court
in Morrissey v. Brewer, 408 U.S. 471 (1972). In that case the
Court stated that:
[r]ather than being an ad hoc exercise of
clemency, parole is an established variation
on imprisonment of convicted criminals. Its
purpose is to help individuals reintegrate
into society as constructive individuals as
soon as they are able, without being confined
for the full term of the sentence imposed.
. . .
The enforcement leverage that supports
the parole conditions derives from the
authority to return the parolee to prison to
serve out the balance of his sentence if he
fails to abide by the rules.
Id. at 477. While the Court recognized that the parolee is
entitled to more rights than an incarcerated prisoner, parole
will be revoked if the parolee fails to live up to parole
conditions. Id. at 494-95.
Alaska's parole scheme, AS 33.16.010.900, comports with
the Supreme Court's explanation in Morrissey. Before serving the
full prison term, a prisoner is to be released on either
discretionary or mandatory parole. If a prisoner is not released
on discretionary parole, the parole board must release the
prisoner on mandatory parole for the period of good time earned.
AS 33.16.010(c). The parole board retains custody of the parolee
until the expiration of the maximum term of the parolee's
sentence. AS 33.16.200. Once released, the parolee is subject
to parole conditions, and the parole board may revoke parole if
any condition is violated. AS 33.16.010(d); AS 33.16.150; AS
33.16.220(a). When there is probable cause to believe that a
parole condition has been violated, the parole board has the
authority to issue a warrant for the parolee's arrest. AS
33.16.240(b). A peace officer will then execute the warrant,
arrest the parolee, and confine the parolee to a correction
facility pending a revocation hearing. AS 33.16.250(a). Upon
reincarceration, however, the convict serves the remainder of the
sentence, and the time served in a correction facility pending
the revocation proceeding is credited toward the offender's
unexpired term of imprisonment. AS 33.16.240(f).
Clearly, under the Alaska parole statute, a parolee
does not shed the status of "convict" or "prisoner". When
released, the circumstances of the parolee's sentence have merely
been varied -- from incarceration to supervised liberty -- in
order to facilitate rehabilitation. The parolee remains within
the grasp of the correctional system throughout the parole
period, and the parole board retains the power to reincarcerate
offenders when probable cause exists that a parole condition has
been violated. After such a valid arrest, the parolee is
immediately delivered to a detention facility to continue serving
the original sentence.
This interpretation comports with the ruling of courts
in other states that have dealt with this issue. See e.g. People
v. Duckett, 516 N.Y.S.2d 17 (A.D.2d 1987); State v. Perencevic,
774 P.2d 558 (Wash. App. 1989); State v. Solis, 685 P.2d 672
(Wash. App. 1984). In Solis, the defendant removed himself from
custody when arrested for a parole violation. The Washington
escape law, RCW 9A.76.110(1), provided:
A person is guilty of escape in the first
degree if, being detained pursuant to a
conviction for a felony or an equivalent
juvenile offense, he escapes from custody or
a detention facility.
Solis, 685 P.2d at 673. The court considered the fact that under
Washington law a parole officer has the authority to cause the
arrest, detention, and suspension of the parole of the parolee.
Id. The court noted that the parole officer had issued a warrant
and a suspension of parole order, and concluded that "suspension
of his parole effectively reinstated his prior felony conviction
and upon arrest he would have been held pursuant to the
conviction pending an on-site hearing." Id. For this reason,
the court ruled that the parolee committed an escape pursuant to
the statute.
In Perencevic, the Washington court addressed the
question in the probation context. Perencevic, a probationer
being detained in jail on warrants for probation violations
arising out of his prior felony convictions, tried to dig his way
out of his jail cell. Perencevic, 774 P.2d at 558-59. When
Perencevic was charged with attempted escape, he argued that he
was not being "detained pursuant to a conviction of a felony"
because the warrant alleged probation violations on convictions
for which he had already served his prison sentence. Id. at 559.
The court ruled, however, that:
[t]he warrants arose out of Perencevic's
prior felony convictions. The warrants also
related to the punishment or sentence he
received on his felony convictions because
they were issued due to his failure to
complete certain requirements of community
supervision which are as much a part of the
punishment and sentence as detention time.
Because there was a causal relationship
between the warrants and the prior felony
convictions, we hold that Perencevic's
detention for his alleged supervision
violation was "pursuant to a conviction of a
felony."
Id. at 560 (footnote omitted). Thus, the court found that
Perencevic had "escaped".3
In a similar New York case, the defendant was being
held in a detention facility for a violation of parole, when he
departed from the facility. Duckett, 516 N.Y.S.2d 17. Duckett
was subsequently caught and charged with escape under a New York
statute that provided: "A person is guilty of escape in the
first degree when (1) having been charged with or convicted of a
felony, he escapes from a detention facility." Id. at 18. The
court concluded that:
a defendant who is released on parole
continues to be subject to the remaining
portion of his sentence until the expiration
of the maximum term. Thus, the defendant who
is detained on a parole warrant is held
pursuant to judicial fiat . . . .Because the
defendant continued to be subject to the
terms of the sentence on the underlying
felony conviction upon which the parole
warrant issued, he had been convicted of a
felony within the meaning of the statute.
Id. (citations omitted).
Based on the goals of parole as stated by the United
States Supreme Court and embodied in the Alaska parole statutes,
as well as the rulings of other courts, it is clear that Stores
remained subject to all the terms of his burglary sentence,
including the terms and conditions of mandatory parole. His
parole violation triggered parole revocation and an immediate
reinstatement of the maximum prison term, requiring him to resume
service of the burglary sentence.
The trial court erred in ruling that the underlying
burglary was "too attenuated" to support the escape charge.
Rather, the burglary was the direct source of the arrest.
Therefore, we hold that the term "official detention for a
felony" in the second-degree escape statute was intended to
encompass detention based on parole warrants for parole
violations.
This interpretation of the statute also agrees with the
plain meaning. A felony is defined by the statute as a crime
punishable by more than one year of imprisonment. AS 11.81.900-
(b)(19). The term "for a felony", however, is not defined in the
statute. This court must first look to the dictionary definition
for the plain meaning. Michael v. State, 767 P.2d 193, 197
(Alaska App. 1988). According to Webster's Dictionary, the word
"for" means "with regard to; regarding; concerning." Webster's
New World Dictionary at 545 (2d ed. 1980). The word "for"
connotes the end with reference to which anything is, acts,
serves, or is done. In consideration of which, in view of which,
or with reference to which, anything is done or takes place.
Black's Law Dictionary at 580 (6th ed. 1990).
According to these sources, a fair definition of the
term "for a felony" is "in reference to" a crime that is
punishable by more than one years' imprisonment. This is a broad
definition, which suggests that the statute was intended to cover
a wide variety of cases and situations, including detentions for
both felony convictions and felony charges.
However, this court should not automatically apply the
plain meaning without first examining the statutory history of
the provision to determine whether ambiguity exists. Alaska
Public Employees Association v. Fairbanks, 753 P.2d 725, 727
(Alaska 1988). Despite the fact that the history of the escape
statute is somewhat complicated, we conclude that no ambiguity
exists as to the core meaning of the statute. It is intended to
apply to those who abscond from detention for a felony. It is a
felony, whether the person is detained for a felony that has not
yet been charged, or a felony that has been formally charged or
for a felony on which a conviction has been entered.4
There being no ambiguity created by the statutory
history of the escape law, we adopt the plain meaning. Second-
degree escape may be charged when a person departs from detention
while held for a felony conviction, which in this case is the
burglary conviction on which Stores had been paroled.
Finally, Stores argues that criminal statutes are to be
construed strictly, but because this statute is not ambiguous,
strict construction is not called for here. Furthermore, the
court is not required to give statutes the narrowest meaning
allowed by the language. Jones v. State, 750 P.2d 828, 831
(Alaska App. 1988). Rather, common sense must be used to resolve
questions of statutory interpretation. Id.
Here, common sense indicates that an escapee who has
been convicted of a crime is a greater threat to the public than
an escapee who has been charged with, but not convicted of a
crime. The legislature, therefore, has a greater interest in
punishing convicts who escape custody than in punishing alleged
offenders who escape. Under Stores' view of the statute,
however, the legislature must have intended to impose criminal
liability on alleged offenders, while eliminating criminal
liability for convicted offenders. Furthermore, under Stores'
interpretation, a parolee who escapes after being arrested for a
parole violation could never be charged with escape. There is
little doubt that the legislature intended neither of these
results. For, this reason, we reject Stores' arguments as
illogical because they fail to consider the obvious goals of the
legislature.5
The trial court alternatively found that AS 11.56.310-
(a)(1)(B) was unconstitutionally vague because Stores lacked
adequate notice that his conduct was prohibited. The escape
statute can be deemed void for vagueness only if the language of
the statute fails to give adequate notice of conduct that is
prohibited or if the imprecise language encourages arbitrary law
enforcement. Summers v. Anchorage, 589 P.2d 863, 867 (Alaska
1979). In this case, however, the statute prohibits removals
from official detention for felonies. The language is broad
enough to permit Stores to understand that when he was placed
under arrest by a police officer the act of running away was
prohibited and would subject him to further criminal liability.
The judge's ruling that the statute was unconstitution-
ally vague was incorrect because it was based on the fact that
she and two lawyers at Stores' motion hearing interpreted the
statute differently. This was not the proper standard to apply.
The fact that opposing lawyers disagreed on the constitutionality
of a statute is probably the norm rather than the exception. We
conclude that the judge erred in finding that the escape statute
was unconstitutionally vague.
The order dismissing the indictment is REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Stores was charged with second-degree escape as set
forth in AS 11.56.310. The statute provides:
Escape in the second degree. (a) One commits
the crime of escape in the second degree if,
without lawful authority, one
(1) removes oneself from
. . . .
(B) official detention for a felony
or for extradition . . . .
2 The trial court found that Stores was in "official
detention", a finding which neither party appears to contest.
3 Stores argues that the state's reliance on Solis, 685
P.2d 672, and Perencevic, 774 P.2d 558, is misplaced because the
Washington law specifically defines escape as "detained pursuant
to a felony conviction". He concludes that because the words
"felony conviction" are absent from the Alaska escape statute,
the Washington and Alaska statutes are not analogous with regard
to removals from detentions for felony convictions. Thus, the
Washington courts' analyses are inapplicable to his case.
His argument is without merit. The statutory history
demonstrates, that although the Alaska and Washington statutes
are worded differently, the Alaska legislature intended the
escape statute to have the same meaning given the Washington
statute by the Washington courts. See infra at n.4.
4 From 1957 until 1976, Alaska law expressly defined
escape in terms of escape from detention based on felony charges
and convictions. The statute was amended in 1976. Former AS
11.30.90. See Commentary on the Revised Criminal Code, Senate
Journal Supp. No. 47 at 77, 1978 Senate Journal 1399. The
drafters later stated:
During the 1976 legislative session, the
escape statute was substantially amended and
the new crime of unlawful evasion was
adopted. Escape, AS 11.30.090, was divided
into three degrees . . . . Punishment for
escape was set at imprisonment for from 3
months (AS 11.30.095(c)) to 5 years (AS
11.30.095(a)).
The authorized term depended on such factors as whether
the escapee had committed a felony or a misdemeanor and whether
the escapee possessed a deadly weapon. Id. See also Commentary
on the Alaska Criminal Code Revision Part IV, at 46-47 (Tent.
Draft 1977). Although not mentioned in the comments, the
1976 legislature omitted the phrase "or a conviction of a felony"
that had appeared in the former definition. Under the new law,
the pertinent portion of the first-degree escape provision
defined escape only as a removal from official detention if "the
official detention is on a charge of a felony." Former AS
11.30.090(b)(1). However, because the omission of the phrase
"for a felony conviction" was not mentioned by the drafters as
one of the significant amendments, it is safe to conclude that
even though the legislature omitted the term, they did not intend
to exclude the phrase "for a felony conviction" from the
definition of escape. See Beckman v. State, 689 P.2d 500, 503
(Alaska App. 1984)(where the probationary release exception was
eliminated in the revised escape statute, this court concluded
that the release exception remained in force even though it was
not explicitly stated).
In 1978, the criminal code was revised again. In the
1978 code, as in the 1976 version, second-degree escape was
defined as removal from "official detention" if official
detention was "on a charge of a felony." Felony convictions were
not mentioned. Despite the exclusive use of the phrase "on the
charge of" throughout the pertinent provision of the statute and
the absence of the term "conviction", the commentary to the
tentative draft suggests that a broader meaning of escape was
intended, i.e. one that included detentions for both charges and
convictions. The comments explained:
Conduct of this nature would include an
escape from a courtroom by a convicted
misdemeanant prior to being transported to a
correctional facility. It would also include
the escape by a person who is confined in a
correctional facility while he is being
transported incident to that confinement,
e.g., transportation to a dentist. If a
felon escapes under such circumstances he has
committed escape in the second degree, TD AS
11.56.310(1)(A), a class B felony.
Commentary on the Alaska Criminal Code Revision Part IV, at 48-49
(Tent. Draft 1977). This comment demonstrates that although the
statute only mentioned persons detained "on charges" for
misdemeanors and felonies, the legislature intented to include
individuals who had escaped while detained on charges as well as
for convictions of crimes.
Finally, in 1980, the definition of escape was amended
to its present form. Second-degree escape was defined even more
simply than in the previous statutes -- as removal from detention
"for a felony." We have previously found that the substitution
of the words "for a felony" in place of "under the charge of a
felony" was not intended to alter the original meaning, but was
to make clear that the escape charge could apply when a person
was arrested for a crime but not formally charged. Maynard v.
State, 652 P.2d 489, 490 n.1 (Alaska App. 1982). See also
Jacobson v. State, 786 P.2d 388, 392 (Alaska App. 1990).
Commentary to the Alaska Revised Criminal Code, Senate Journal
Supp. No. 44 at 13, 1980 Senate Journal 1436.
5 The trial court ruled that because the four degrees of
escape are classified by the type of underlying crime, the
legislature intended to distinguish parole and probation arrests
by excluding them from the statute. However, the apparent
purpose of the classification is simply to establish the
appropriate degree of escape to be charged and the period of
incarceration to be imposed.
The comments to the tentative draft bear this out. In
discussing the range of the terms of incarceration for escape,
the commentators explained that under the 1976 statute, the
authorized term of imprisonment depended on "such factors as
whether the escapee had committed a felony or misdemeanor and
whether the escapee possessed a deadly weapon." Comments on
Alaska Criminal Revision Code Part III, at 46 (Tent. Draft 1977).
Clearly, the term "for a felony" is a qualifying term which
gauges the appropriate degree of the offense to be charged and
the appropriate punishment.
