NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501,
in order that corrections may be made prior to
permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
BRIAN HARLOW, )
) Court of Appeals No. A-3633
Appellant, ) Trial Court No. 4FA-S90-1047CR
)
v. ) O P I
N I O N
)
STATE OF ALASKA, )
) [No. 1173 - November 8, 1991]
Appellee. )
_______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John Salemi,
Public Defender, Anchorage, for Appellant.
Shelley K. Chaffin, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Brian Harlow was convicted, based upon his plea of nolo
contendere, of theft in the second degree, AS 11.46.130, and
misconduct involving weapons in the first degree, AS 11.61.200.
Both offenses are class C felonies. The sole issue on appeal in
this case is whether Superior Court Judge Jay Hodges erred in
treating Harlow as a second felony offender for purposes of
presumptive sentencing.
Judge Hodges concluded that Harlow was a second felony
offender. He found that a mitigating factor applied to Harlow's
sentencing,1 and imposed a mitigated presumptive sentence for
theft in the second degree of two years with one year suspended
and a mitigated presumptive sentence for misconduct involving
weapons in the first degree of two years with two years suspended.
Judge Hodges imposed the sentences consecutively. Thus, Harlow's
composite sentence was four years with three years suspended.
At the time of his sentencing in this case, Harlow had
two prior convictions for "unauthorized use of a vehicle" in
Oregon. The convictions occurred in 1988 and 1989. In Oregon
"unauthorized use of a vehicle" is a class C felony, punishable by
a maximum sentence of five years of imprisonment. ORS 161.605(3).
Oregon Revised Statute 164.135(1) defines the offense as follows:
A person commits the crime of
unauthorized use of a vehicle when: (a) [t]he
person takes, operates, exercises control
over, rides in or otherwise uses another's
vehicle, boat or aircraft without consent of
the owner. . . .
Alaska Statute 12.55.145 governs the circumstances when
a court should find that a defendant's prior conviction counts as
a prior felony for purposes of presumptive sentencing under the
revised criminal code. Alaska Statute 12.55.145(a)(2) provides:
(a) For purposes of considering prior
convictions in imposing sentence under [the
presumptive sentencing provisions of the
revised code]
. . . .
(2) a conviction in this or another
jurisdiction of an offense having elements
similar to those of a felony defined as such
under Alaska law at the time the offense was
committed is considered a prior felony convic-
tion. . . .
The state contends that Harlow was subject to
sentencing as a second felony offender because Harlow's 1989
Oregon conviction for "unauthorized use of a vehicle" would be a
felony under Alaska's third-degree criminal mischief statute, AS
11.46.484. That statute provides in pertinent part:
(a) A person commits the crime of
criminal mischief in the third degree if,
having no right to do so or any reasonable
ground to believe the person has such a right
. . . .
(2) the person drives, tows away, or
takes the propelled vehicle of another;
. . . .
(b) Except as provided in (c) of this
section, criminal mischief in the third
degree is a class A misdemeanor.
(c) A person convicted under (a)(2) of
this section is guilty of a class C felony
if, within the preceding seven years, the
person was convicted under
(1) the provisions of (a)(2) of this
section;
. . . .
(5) a law or ordinance of this or
another jurisdiction with elements substan-
tially similar to those of the offenses
described in (1) - (4) of this subsection.
It is undisputed that Harlow had two prior convictions
for "unauthorized use of a vehicle" in Oregon and that these
offenses were felonies in Oregon. However, Harlow argues that
the Oregon offense does not have "elements similar to those of a
felony defined as such under Alaska law." AS 12.55.145(a)(2).
He points out that, for joy riding to qualify as a felony, the
Alaska statute requires an additional element which the Oregon
statute does not have: that the defendant has previously been
convicted, within seven years, of a substantially similar joy
riding offense. The state argued in the trial court, and argues
on appeal, that because Harlow had had one previous conviction
for "unauthorized use of a vehicle" in Oregon, the second Oregon
offense constitutes the equivalent of an Alaska felony
conviction. Judge Hodges accepted the state's argument, and
sentenced Harlow as a second felony offender.
As a starting point, the state appears to concede that
to convict a defendant of a felony under AS 11.46.484 the state
must prove as an element of the offense that the defendant has a
previous conviction for joy riding. The state's concession on
this point appears proper in light of Morgan v. State, 661 P.2d
1102 (Alaska App. 1983) (state must prove the existence of a
previous conviction as an element of the offense in order to
convict defendant of a class C felony for aggravated
bootlegging).
We next consider the case of Garroutte v. State, 683
P.2d 262 (Alaska App. 1984). In that case, the trial judge found
that Garroutte was subject to presumptive sentencing because of a
1972 conviction for receiving and concealing stolen property.
Id. at 268. However, the statute under which Garroutte had been
convicted of receiving and concealing stolen property did not
require the state to prove the value of the property. The Alaska
Revised Criminal Code requires the value of the stolen property
to exceed $500 in order to qualify as a felony. The trial judge
conducted a factual inquiry and found that the actual value of
the property which Garroutte stole in 1972 exceeded $500. He
accordingly concluded that Garroutte's 1972 conviction was
"substantially identical" to a felony under the revised code.
Garroutte appealed, and we reversed. We stated:
Since the elements of the receiving and
concealing statute under which Garroutte was
convicted in 1972 did not require proof of
value, that offense differed substantially
from current law and does not qualify as a
prior felony conviction.
Id. at 269.
We note that Garroutte was decided under a former
statute. Prior AS 12.55.145 provided in pertinent part:
(a) For purposes of considering prior
convictions in imposing sentence under this
chapter
. . . .
(2) a conviction in this or another
jurisdiction of an offense having elements
substantially identical to those of a felony
defined as such under Alaska law is
considered a prior felony conviction. . . .
This prior statute was replaced when the present statute was
enacted in 1982. Wasson v. State, 652 P.2d 117, 118 and n.1
(Alaska App. 1982). The main difference between the two
statutes, for purposes of this appeal, is that requiring a prior
offense to have elements "substantially identical" appears to be
more strict than requiring the prior offense to have elements
"similar." Nevertheless, both current and former AS
12.55.145 focus on the elements of the prior conviction. In
Garroutte, where the prior offense did not require any proof of
value, we stated that "that offense differed substantially" from
an offense which required proof of value. 683 P.2d at 269.
Similarly, in the instant case, where the Oregon statute did not
require the state to prove a prior offense and the Alaska statute
required the state to prove a prior offense, we cannot conclude
that the Oregon and Alaska offenses have similar elements. We
therefore hold that Judge Hodges erred in finding that Harlow's
Oregon convictions for "unauthorized use of a vehicle"
constituted a prior felony for presumptive sentencing purposes
under AS 12.55.145. We accordingly reverse Harlow's sentence.2
The sentence is REVERSED.
_______________________________
1. Judge Hodges found that "the facts surrounding the
commission of the offense and any previous offenses by the
defendant establish that the harm caused by the defendant's
conduct is consistently minor and inconsistent with the imposition
of a substantial period of imprisonment." AS 12.55.155(d)(13).
2. Judge Hodges may, of course, consider these prior
felony convictions generally in imposing sentence. As we stated
in Garroutte: "Although his felony convictions do not qualify to
trigger presumptive sentencing, they are highly relevant to his
sentence in this case and could properly be considered by the
sentencing court." 683 P.2d at 269.
