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THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD LIPSCOMB, )
) Court of Appeals No. A-4831
Appellant, ) Trial Court No. 4FA-S79-1716CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1336 - February 25, 1994]
)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Rene J.
Gonzalez, Judge.
Appearances: Andrew Lambert, Assistant
Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Appellant. Richard
W. Maki, Assistant District Attorney, Edward
E. McNally, District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Wolverton, District Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
On July 16, 1983, Ronald Lipscomb was convicted of
robbery and failure to appear. He was sentenced to fifteen years
of imprisonment with five years suspended. The court imposed a
five year period of probation.
Following release on mandatory parole in 1989, and
parole revocation in 1990, Lipscomb was again released on
mandatory parole on February 20, 1992. Under the conditions of
both parole and probation, Lipscomb was required to report
regularly to a probation/parole officer and to abide by various
restrictions. Shortly after his release from prison in February
1992, Lipscomb phoned his Anchorage probation officer, Sarah
Williams, from Fairbanks. Lipscomb asked that he be permitted to
move to Fairbanks. Williams instructed Lipscomb to report to
Fairbanks probation officer Joe Anderson on the next day.
Lipscomb did not report as instructed. Lipscomb then left the
state.
On October 26, 1992, the parole board revoked
Lipscomb's parole. On May 5, 1992, the State of Alaska filed a
petition to revoke Lipscomb's probation. On January 29, 1993,
Superior Court Judge Rene Gonzalez revoked Lipscomb's probation
for failure to report to the Fairbanks probation office. Judge
Gonzalez imposed the five-year term of Lipscomb's sentence that
had previously been suspended.
Lipscomb appeals, contending that Judge Gonzalez could
not revoke his probation under AS 33.20.040(c) because he was not
on probation at the time of his violation. Lipscomb also
contends that it was unfair to revoke his probation because he
did not have notice that he was on probation or that he was
required to follow the conditions of his probation. He also
contends that imposition of the five-year term constituted an
excessive sentence.
It is necessary to discuss the statutory history of AS
33.20.040(c) in order to understand Lipscomb's contention that he
was not actually on probation at the time he was charged with
violating probation. Prior to 1985, Alaska statutes were silent
as to whether parole time should run concurrently or
consecutively to probation time. In 1985, the legislature passed
AS 33.20.040(c), which provided:
If a prisoner's sentence includes a
residual period of probation, a prisoner
released under AS 33.20.030 shall immediately
begin serving the residual probationary
period, except that if mandatory parole is
required under (a) of this section, serving
the probationary period shall immediately
follow discharge from parole.
Ch. 88, 4, SLA 1985.
In 1987, the legislature amended AS 33.20.040(c) to
provide for the concurrent running of mandatory parole and
probation time. Ch. 77, 9, SLA 1987. The amended statute
provides:
If a prisoner's sentence includes a
residual period of probation, the
probationary period shall run concurrently
with a period of mandatory parole for that
sentence and the prisoner shall be under the
concurrent jurisdiction of the court and the
parole board. Nothing in this section
precludes both the court and the parole board
from revoking the prisoner's probation and
mandatory parole for the same conduct.
The 1987 amendment to AS 33.20.040(c) was part of a
broader legislative package designed to reduce the workload of
overburdened parole and probation staff to allow more time for
supervision of the most serious offenders. The legislation
achieved this goal by limiting the number of prisoners required
to serve mandatory parole, and by providing for the concurrent
service of mandatory parole and probation.1
After the amendment was passed, the parole board sought
advice from the Department of Law regarding application of the
new law. Specifically, the parole board sought guidance as to
which prisoners and parolees were covered by the amended statutes
and which were covered by the former statutes.
On December 8, 1987, the Department of Law issued an
opinion concluding that general saving statute AS 01.10.100(a),
required the amendment be applied only to those persons
committing crimes after the effective date of the bill (September
13, 1987).2 Prior to the issuance of this opinion, the parole
board had been applying AS 33.20.010(c) (1987) to those prisoners
released on or after September 13, 1987.
On February 8, 1988, counsel for the Legislative
Affairs Agency informed the bill's sponsor, State Representative
C. E. Swackhammer, that AS 33.20.040(c) (1987) lacked effective
date language, and that the legislature could only "set aside the
effect of the [Department of Law] opinion by clarifying
legislative intent. . . ." in a supplementary bill.
Also on February 8, the Executive Director of the
Alaska Board of Parole wrote to Representative Swackhammer
regarding the application of AS 33.20.040(c) in its amended form:
On December 10, 1987, we received the
Department of Law's opinion indicating we
could only apply HB 140 to those prisoners
whose crimes were committed on September 13,
1987 or thereafter. . . . We strongly
support an amendment that would allow the
immediate application of HB 140 to everyone
released September 13, 1987 or thereafter.
(Emphasis added).
In response to the Department of Law opinion, the
legislature passed effective date legislation for AS 33.20.040(c)
on February 10, 1988. The legislation stated:
The provisions of . . . 33.20.040(c), as
amended [in 1987], apply to prisoners
incarcerated on or after September 13, 1987,
irrespective of the law in effect at the time
the prisoner committed the offense for which
the prisoner was incarcerated.
Ch. 47, 1-2, SLA 1988 (emphasis added).
Lipscomb argues that it is unclear whether he is
covered under the 1985 act (with probation running consecutively
after parole) or the 1987 act (probation and parole running
concurrently), because the term "incarcerated," as used in ch.
47, 1-2, SLA 1988, is ambiguous. Lipscomb contends that the
term "incarcerated" can refer either to a period of incarceration
-- Mr. Smith is currently incarcerated for assault -- or to the
act of incarceration -- Mr. Smith is hereby incarcerated for six
months for assault. Lipscomb concludes, therefore, that the term
"incarcerated" could apply to those inmates in jail on or after
September 13, 1987, or to those inmates sentenced to prison on or
after September 13, 1987.3
Lipscomb further claims that the foregoing ambiguity
must be construed strictly against the government. State v.
Andrews, 707 P.2d 900, 907 (Alaska App. 1985), aff'd 723 P.2d 85
(Alaska 1986). He contends that we should construe the statute
to mean that he was on parole and not probation at the time of
his violation. Lipscomb concludes that, since he was not on
probation, Judge Gonzalez could not have revoked his probation
and imposed the five-year portion of Lipscomb's sentence that had
previously been suspended.
The state contends that, considering the legislative
history of the statute, it is clear that the legislature intended
AS 33.20.040 to apply to all prisoners released on or after
September 13, 1987. The state cites De Nardo v. State, 819 P.2d
903, 907 (Alaska App. 1991), where we stated that the rule of
strict construction of criminal statutes "comes into play only
when, after employing normal methods of statutory construction,
the legislature's intent cannot be ascertained or remains
ambiguous." See also State v. Jones, 750 P.2d 828, 831 (Alaska
App. 1988) and Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska
App. 1981) (although criminal statutes are generally construed
strictly, they should nevertheless be given a reasonable or
common sense construction, consistent with the objectives of the
legislature). The state also points out that its interpretation
of the statute, allowing prisoners to serve their probation and
parole concurrently rather than consecutively, would favor most
prisoners by reducing the amount of time that a prisoner is
subject to supervision.
The legislation establishing the effective date of AS
33.20.040 is ambiguous on its face. We question whether the
legislative history is sufficiently clear to have given Lipscomb
adequate due process notice that he was on probation. Under the
circumstances, we are reluctant to construe the statute in a way
that would result in actual prejudice to Lipscomb. We
accordingly conclude that the court could not have revoked
Lipscomb's probation under AS 33.20.040.
Despite the ambiguity in the statutory language, we
think that the most plausible intent of the statute is to require
concurrent probation and parole for all persons released after
its effective date. We also agree with the state that this
interpetation tends to favor prisoners in a vast majority of
cases. Accordingly, we adopt the state's interpretation of AS
33.20.040 prospectively from the date of this decision. This
opinion should clarify the ambiguity by providing notice that the
statute applies to all prisoners who are released from
incarceration on or after September 13, 1987. By deciding the
case in this manner, we carry out what appears to be the intent
of the legislature without any unfairness to Lipscomb.
REVERSED and REMANDED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Under the former law, prisoners who had served a
minimum of 181 days were required to serve mandatory parole. The
new legislation limited that requirement to those prisoners who
had served a minimum of two years, thus limiting parole
supervision to those offenders who had committed more serious
crimes.
2. AS 01.10.100(a) provides:
Effect of repeals or amendments. (a)
The repeal or amendment of a law does not
release or extinguish any penalty,
forfeiture, or liability incurred or right
accruing or accrued under that law, unless
the repealing or amending act so provides
expressly. The law shall be treated as
remaining in force for the purpose of sustain
ing any proper action or prosecution for the
enforcement of the right, penalty,
forfeiture, or liability.
3. There are actually four separate events to which
the effective date legislation might apply: 1) the date the
prisoner committed the offense, 2) the date the prisoner was
sentenced, 3) the date the prisoner first went to jail, or 4) the
date the prisoner was released on parole.
