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THE COURT OF APPEALS OF THE STATE OF ALASKA
ELMER LEE McNABB, )
) Court of Appeals No. A-4633
Appellant, ) Trial Court No. 3KO-S92-270CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1320 - October 22, 1993]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District, Kodiak,
Donald D. Hopwood, Judge.
Appearances: Alan L. Schmitt, Jamin, Ebell,
Bolger & Gentry, Kodiak, for Appellant.
Roger B. Rom, Assistant District Attorney,
Peter C. Gamache, District Attorney, Kodiak,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Elmer McNabb was charged by information with twenty
counts of negligently violating 5 AAC 39.164(b)(3), which
prohibits the operation of non-pelagic trawl gear within the
waters of King Crab Registration Area M. Counts I and II of the
information charged violations occurring on February 18, 1992.
Counts III and IV charged violations occurring on February 19,
1992. Pursuant to a plea agreement, McNabb pled guilty to Count
IV of the information, and the state dismissed the other nineteen
counts.
Alaska Statute 16.05.723(a) provides that a person who
negligently violates a regulation of the board of fisheries is
punishable by imprisonment of up to one year and a fine of up to
$15,000.00. McNabb was sentenced to thirty days, all suspended,
and a fine of $15,000.00 with $5,000.00 suspended. The
sentencing court also ordered forfeiture of the fair market value
of all the fish on board McNabb's boat on February 19, 1992, a
total of $39,758.40. Under the authority of AS 16.05.723(b), the
court imposed an additional fine of $39,758.40 with $20,000.00
suspended. On appeal, McNabb challenges the forfeiture and
additional fine on several grounds. He also challenges the total
amount of fines and forfeitures as violating the United States
and Alaska constitu-tional prohibitions against excessive fines.
Finally, he argues that the court erred in imposing any fines and
forfeitures without considering his financial resources.
FORFEITURE OF $39,758.40
The sentencing court ordered McNabb to pay a forfeiture
of $39,758.40 under the authority of AS 16.05.723(a). That
subsection provides that in addition to imposing a term of
imprisonment of up to one year and a fine of up to $15,000.00:
the court shall order forfeiture of any fish,
or its fair market value, taken or retained
as a result of the commission of the
violation, . . . . For purposes of this
subsection, it is a rebuttable presumption
that all fish found on board a fishing vessel
used in or in aid of a violation, or found at
the fishing site, were taken or retained in
violation of AS 16.05.440-16.05.690 or a
commercial fisheries regulation of the Board
of Fisheries or the department, and it is the
defendant's burden to show by a preponderance
of the evidence that fish on board or at the
site were lawfully taken and retained.
The court ordered forfeiture of $39,758.40, the amount paid to
McNabb at the end of the day February 19, 1992, when he sold all
the fish on board his boat to a tender. It is undisputed that
the fish turned over to the tender on February 19th had been
taken by McNabb in four separate tows, two on February 18th and
two on February 19th. The first three of these tows were the
bases for Counts I through III, which had been dismissed. The
fourth tow was the basis for Count IV, the count to which McNabb
pled guilty.
McNabb argues that the forfeiture amount should not
have exceeded $10,257.67. This amount represents 25.8% of the
value of the fish on board McNabb's vessel following the four
tows on February 18th and 19th. The only evidence introduced at
the sentencing hearing purporting to allocate the $39,000.00
worth of fish between the four separate tows on February 18th and
19th was an entry from McNabb's fishing log book in which he had
estimated that 25.8% of the fish had been taken in the fourth
tow.
McNabb contends that the sentencing court based its
forfeiture order on an erroneous finding that all of the fish on
board his boat on February 19 had been taken in the fourth tow.
McNabb misconstrues the district court's findings. From the
court's ruling that McNabb had failed to rebut the AS
16.05.723(a) presumption that all fish on board the vessel had
been taken
illegally, McNabb infers a finding that all of the fish had been
taken in the fourth tow on the 19th. This inference is mistaken.
Judge Hopwood did find that McNabb had failed to rebut the AS
16.05.723(a) presumption. However, Judge Hopwood's
interpretation of that presumption differs from McNabb's. As
McNabb reads the statute, the presumption is that all fish found
on board the vessel were taken or retained in the illegal act for
which he was convicted. According to McNabb, a defendant need
not actually show that the fish on board were "lawfully taken and
retained" in order to rebut the presumption; he need only show
that the fish were taken legally or illegally, in acts other than
that for which he was convicted. As Judge Hopwood read the
statute, the presumption is that all fish on board the vessel
were taken or retained illegally, and thus are forfeitable unless
the defendant can show not only that the fish were taken in acts
other than that for which he was convicted, but also that they
were lawfully taken. Read in its entirety, AS
16.05.723(a) is ambiguous. The last sentence of the subsection,
which establishes the rebuttable presumption, refers only to
whether the fish were taken lawfully or unlawfully, without
reference to the particular unlawful act for which the defendant
was convicted. The difficulty comes in reconciling this language
with the preceding language of the same paragraph that when a
person is convicted of a commercial fishing misdemeanor, "the
court shall order forfeiture of any fish, or its fair market
value, taken or retained as a result of the commission of the
violation. . . ." (Emphasis added). The legislative history of
AS 16.05.723 is not helpful on the forfeiture issue. There is no
indication that the legislature anticipated the situation that
arose in this case: the presence on board the boat of fish
allegedly taken in illegal acts for which no conviction would be
had.
Construing the statute in its totality and resolving
this ambiguity in McNabb's favor,1 we read AS 16.05.723(a) as
providing for the mandatory forfeiture only of fish taken or
retained as a result of the violation for which the defendant has
been convicted. When the statute is so construed, McNabb must
still overcome the presumption that all fish on board his vessel
were taken as the result of the violation for which he was
convicted. However, McNabb's fishing log, if accepted as
credible by the court, would suffice to meet the burden. We
accordingly remand the case to Judge Hopwood to redetermine the
amount of the forfeiture under this reading of AS 16.05.723(a).2
ADDITIONAL FINE IMPOSED UNDER AS 16.05.723(b)
Pursuant to AS 16.05.723(b), the sentencing court
imposed "a fine equal to the gross value of the fish found on
board ... at the time of the violation. . . ."3
McNabb argues that this fine should not have exceeded
the value of the fish taken in the tow for which he was
convicted. There is no merit to this argument. Unlike the
forfeiture authorized by AS 16.05.723(a), the fine provided for
in subsection (b) of the statute does not depend on the amount of
fish taken as a result of the violation. The statute
contemplates a fine which is based on the value of the fish on
board a vessel, whether they were taken illegally or not.
McNabb argues that imposition of the additional fine
pursuant to subsection (b) of the statute was improper because he
was not convicted of one of the offenses listed in that
subsection. This argument is unpersuasive. McNabb was in fact
convicted of commercial fishing with illegal gear under AS
16.05.723(b)(3). The gear was illegal for the area in which
McNabb was fishing.4 There is no error in the provision of the
judgment which fines McNabb $39,758.40 with $20,000.00 suspended,
pursuant to AS 16.05.723(b).
CONSTITUTIONAL PROHIBITIONS AGAINST EXCESSIVE FINES
McNabb argues that the total amount of fines and
forfeitures imposed against him violates the Eighth Amendment to
the United States Constitution, and Article I, 12 of the Alaska
Constitution. Both of these constitutional provisions state that
"excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." McNabb
argues that the fine in this case is disproportionate to the
value of the fish taken in the tow for which he was convicted.
The United States Supreme Court has held that the
Eighth Amendment does not require strict proportionality between
crime and sentence, but forbids only "extreme sentences that are
`grossly disproportionate' to the crime." See Harmelin v.
Michigan, 111 S.Ct. 2680 (1991).
The Alaska Supreme Court has consistently held that the
Alaska Constitution does not require that penalties be
proportionate to the offense. Only punishments that are "so
disproportionate to the offense committed as to be completely
arbitrary and shocking to the sense of justice" may be stricken
as cruel and unusual under Alaska's Constitution. See Thomas v.
State, 566 P.2d 630, 635 (Alaska 1977); Green v. State, 390 P.2d
433, 435 (Alaska 1964).
We have upheld the application of large fines in
commercial fishing cases. See Millman v. State, 841 P.2d 190,
196-97 (Alaska App. 1992). The fines reflect the heavily
regulated nature of the industry, the large profits which can
occur from illegal fishing, and the value of the resource to the
citizens of the state. The fines imposed may be designed to
punish violators and need not reflect the profit the defendant
received from a violation. Id. The fine imposed against McNabb
is not grossly disproportionate to his crime. There is no
constitutional violation here.
CONSIDERATION OF MCNABB'S FINANCIAL
RESOURCES AT THE SENTENCING HEARING
McNabb argues that the court violated former AS 12.55.
035(a), which provided in part at the time of McNabb's
sentencing:
In determining the amount and method of pay
ment of a fine, the court shall take into
account the financial resources of the defen
dant and the nature of the burden its payment
will impose.
At the sentencing hearing, Judge Hopwood did not make a
specific inquiry into McNabb's ability to pay the fine. The
judge did ask defense counsel when McNabb would be able to pay
the fine. The judge granted McNabb's request that he be given
twelve months to pay the fine, so that he could earn the money
during the next fishing season.
The state argues that a specific inquiry into McNabb's
ability to pay the fine was unnecessary in light of the evidence
presented at the sentencing hearing. The state's position is
that because McNabb's fishing license was not suspended and none
of his gear was forfeited, it is obvious that McNabb will be able
to earn enough money to pay the fines in a single fishing season.
However, the former statute required the court to make a specific
inquiry concerning "the financial resources of the defendant and
the nature of the burden its payment will impose." Since the
court did not do this, we remand the case so that the court can
determine the appropriate fine.
This case is REMANDED for further proceedings
consistent with this opinion.
_______________________________
1. See State v. Andrews, 707 P.2d 900, 907 (Alaska
App. 1985), aff'd 723 P.2d 85 (Alaska 1986).
2. The state has not argued that the court might have
authority under AS 16.05.195 to order damages for the value of
fish taken illegally. We accordingly do not decide what
authority the court may have to proceed under this statute.
3. Subsection (b) of AS 16.05.723 provides:
If a person is convicted under this section
of one of the following offenses, then, in
addition to the penalties imposed under (a)
of this section, the court may impose a fine
equal to the gross value of the fish found on
board or at the fishing site at the time of
the violation:
(1) commercial fishing in closed waters;
(2) commercial fishing during a closed
period or season;
(3) commercial fishing with unlawful gear,
including a net, pot, tackle or other device
designed or employed to take fish commercially; or
(4) commercial fishing without a
limited entry permit holder on board if the
holder is required by law or regulation to be
present.
4. We find unpersuasive McNabb's argument that his
gear was legal because he could have used it lawfully in another
area. McNabb was convicted of using illegal gear for the area in
which he was fishing. This interpretation of AS 16.05.723(b)
comports with the plain meaning of the statute.
