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THE COURT OF APPEALS OF THE STATE OF ALASKA
JASON P. LEFEVER, )
) Court of Appeals No. A-4999
Petitioner, ) Trial Court No. 4FA-S92-2043CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Respondent. ) [No. 1357 - July 22, 1994]
______________________________)
Petition for Hearing from the Superior Court,
Fourth Judicial District, Fairbanks, Ralph R.
Beistline, Judge, on appeal from the District
Court, Fairbanks, Jane F. Kauvar, Judge.
Appearances: Gina M. Tabachki, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Petitioner. Jacquelyn L. Parris, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Charles E. Cole,
Attorney General, Juneau, for Respondent.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
COATS, Judge.
The district court, sitting without a jury, convicted
Jason P. LeFever of unlawful evasion in the first degree, a class
A misdemeanor. AS 11.56.340. LeFever appealed his conviction to
the superior court, contending that the district court should
have granted his motion for acquittal on the ground that AS
11.56.340 does not apply to evasion of detention for an
adjudication of juvenile delinquency. The superior court
affirmed the conviction. This court granted LeFever's petition
for hearing, and we now affirm.
On June 16, 1992, Courtney Rhea, the primary youth
counselor for LeFever during his treatment at the Fairbanks Youth
Facility, sent LeFever onto the grounds of the facility to work
with the maintenance staff under minimal supervision. About two
hours later, Rhea noticed that LeFever was late in returning and
searched the grounds to find him, but LeFever had departed the
facility without authorization to do so. LeFever did not return
until his juvenile probation officer went to Seattle to retrieve
him the following month. Defense counsel stipulated at trial
that LeFever had been "in official detention at the time of these
alleged incidents and that he was there based on children's
proceedings and adjudications for what would have been felonies
had he been an adult." Defense counsel did not stipulate that
LeFever had been convicted of any felonies. LeFever had turned
18 years old before June 16, 1992; the state therefore charged
him as an adult with unlawful evasion. See Henson v. State, 576
P.2d 1352 (Alaska 1978).
At the close of this evidence at trial, LeFever moved
for a judgment of acquittal on the ground that the state had not
proved one of the elements of first-degree unlawful evasion: that
LeFever had left the facility "while charged with or convicted of
a felony." AS 11.56.340(a). LeFever argued that his
adjudication as a delinquent minor had not constituted a
conviction of any crime, whether felony or misdemeanor. District
Court Judge Jane F. Kauvar denied the motion, noting that LeFever
had apparently been "charged with" felonies in juvenile court
prior to the adjudication of delinquency. Judge Kauvar then
found that LeFever was guilty of unlawful evasion and sentenced
LeFever to ten suspended days of imprisonment with probation of
one year.
LeFever appealed his conviction to the superior court.
Superior Court Judge Ralph R. Beistline affirmed the conviction,
commenting: "Certainly LeFever's arguments are academically
appealing; however, they would effectively eliminate any remedy
there might be for juveniles who depart the Youth Facility
without permission." LeFever petitioned this court for a hearing
of the superior court's decision.
Alaska Statute 11.56.340(a) provides as follows:
A person commits the crime of unlawful
evasion in the first degree if, while charged
with or convicted of a felony,
(1) the person fails to return to
official detention within the time authorized
following temporary leave granted for a
specific purpose or limited period, including
leave granted under AS 33.30.181; or
(2) while on furlough under AS 33.30.101
-- 33.30.131 the person fails to return to
the place of confinement or residence within
the time authorized by those having direct
supervision.
(Emphasis added.)
LeFever's position is that a person who has been
adjudicated as a juvenile cannot commit first-degree unlawful
evasion because such a person is not "charged with or convicted
of a felony."1 LeFever relies on the fact that proceedings for
juvenile delinquency are distinct from adult criminal
proceedings. LeFever particularly relies on AS 47.10.080(g),
which provides:
No adjudication under this chapter upon
the status of a child may operate to impose
any of the civil disabilities ordinarily
imposed by conviction upon a criminal charge,
nor may a minor afterward be considered a
criminal by the adjudication, nor may the
adjudication be afterward deemed a
conviction, nor may a minor be charged with
or convicted of a crime in a court, except as
provided in this chapter. The commitment and
placement of a child and evidence given in
the court are not admissible as evidence
against the minor in a subsequent case or
proceedings in any other court, nor does the
commitment and placement or evidence operate
to disqualify a minor in a future civil
service examination or appointment in the
state.
(Emphasis added.) Alaska Statute 47.10.080, which deals with
judgments and orders of the juvenile court upon finding that a
minor is delinquent, nowhere uses the terms "conviction" or
"convicted" except in the language emphasized above. Other than
as quoted above, and in the statutes providing for waiver of
juvenile jurisdiction and prosecution of minors as adults, the
terms "charged" and "convicted" do not appear anywhere in the
chapter devoted to delinquent minors. Therefore, LeFever
contends, under the plain language of AS 11.56.340(a) (and AS
11.56.350(a)), a person who is in official detention as a result
of an adjudication of delinquency cannot commit unlawful evasion
in any degree because such a person has not been "charged with or
convicted of" either a felony or a misdemeanor.
However, Alaska does not adhere to a "plain meaning
rule" of statutory interpretation that disregards any
consideration of legislative purpose or intent. Wylie v. State,
797 P.2d 651, 657 (Alaska App. 1990). Instead, we consider a
statute's meaning by applying a "sliding scale" such that, the
plainer the statutory language, the more convincing the evidence
of a contrary legislative purpose or intent must be. Anchorage
Sch. Dist. v. Hale, 857 P.2d 1186, 1189 (Alaska 1993); Millman v.
State, 841 P.2d 190, 194 (Alaska App. 1992); Wylie, 797 P.2d at
657. Even though we generally construe ambiguous criminal
statutes in favor of the defendant, we must avoid construing a
statute so as to yield patently absurd results or to defeat the
obvious legislative purpose of the statute. Lipscomb v. State,
869 P.2d 166, 168 (Alaska App. 1994); State v. Lowrence, 858 P.2d
635, 638 (Alaska App. 1993); Williams v. State, 853 P.2d 537, 538
(Alaska App. 1993); Thiessen v. State, 844 P.2d 1137, 1139
(Alaska App. 1993); Briggs v. Donnelly, 828 P.2d 1207, 1208-09
(Alaska App. 1992). In this case, we conclude that the
legislature intended adjudicated delinquents to be subject to the
unlawful evasion statutes. The evidence of this intent outweighs
LeFever's "plain meaning" construction, which would result in the
unlawful evasion statutes being inapplicable to adjudicated
delinquents.2
LeFever does not dispute that he failed to return to
"official detention" under AS 11.56.340(a)(1). "Official
detention," as defined in AS 11.81.900(35), specifically includes
"actual or constructive restraint under an order of a court in a
criminal or juvenile proceeding." The term "official detention"
occurs in each of the escape and unlawful evasion statutes (AS
11.56.300-.350), as well as the statute prohibiting permitting an
escape (AS 11.56.370).3 It therefore appears that each of the
escape and unlawful evasion statutes is potentially applicable to
those who escape from or evade detention in a juvenile facility.
LeFever concedes that adjudicated delinquents can be in
"official detention" and that certain provisions of the escape
statutes--the provisions that do not mention felonies or
misdemeanors--can apply to adjudicated delinquents. In
particular, LeFever grants that an adjudicated delinquent can be
convicted of first-degree or second-degree escape for escaping by
means of a deadly or defensive weapon, while possessing a
firearm, or from a correctional facility. AS 11.56.300; AS
11.56.310(a)(1)(A), (C). However, LeFever argues that none of
the other escape provisions and none of the unlawful evasion
statutes apply to adjudicated delinquents.
Alaska Statutes 11.56.310-.330, which define the
offenses of escape in the second through fourth degrees, refer to
detention or confinement "for" a felony or misdemeanor. In State
v. Stores, 816 P.2d 206, 210-11 (Alaska App. 1991), this court
held that the phrase "for a felony" as used in AS
11.56.310(a)(1)(B) meant "in reference to" a felony and that the
escape statute was therefore broad enough to apply "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 We went on to note that the
legislature intended the phrase "for a felony" to clarify, rather
than alter, the scope of the previous language of the escape
statutes ("on a charge of a felony") and that the latter phrase
in turn included "for a felony conviction" even though the
legislature had omitted explicit reference to convictions in a
previous amendment. Id. at 211 n.4. In addition, we rejected
the argument that, "because the four degrees of escape are
classified by the type of underlying crime [felony or
misdemeanor], the legislature intended to distinguish parole and
probation arrests by excluding them from the statute," and held
instead: "[T]he 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." Id. at 212 n.5.
By similar reasoning, it appears that the language "for
a felony" and "for a misdemeanor" as used in the escape and
unlawful evasion statutes alike is meant to divide the universe
of persons who are in "official detention" into two categories,
by seriousness of their underlying conduct, and is not meant to
exclude adjudicated delinquents from the statutes. A contrary
interpretation could lead to particularly anomalous results if
applied to AS 11.81.410. Alaska Statute 11.81.410(b) generally
authorizes guards or peace officers to use deadly force when
necessary to prevent an escape of a prisoner from a correctional
facility. However, AS 11.81.410(c) limits the use of deadly
force by providing that a guard may not use deadly force against
an escaping prisoner if the guard knows that the prisoner was
"under official detention . . . on a charge of a misdemeanor" and
does not believe the prisoner has a firearm. If the phrase "on a
charge of a misdemeanor" excluded juveniles who had been
adjudicated delinquent, it would follow that guards could use
deadly force against adjudicated delinquents escaping official
detention regardless of the seriousness of their underlying
conduct.
We recognize that the language of the unlawful evasion
statutes, "while charged with or convicted of" a felony or
misdemeanor, is different from and arguably narrower than the
language of the escape statutes, "for" a felony or misdemeanor.
However, we are not convinced that the legislature intended the
different language to have any different meaning in this context.
In particular, we note that the original unlawful evasion
statutes had language identical to that of the corresponding
escape statutes and that the subsequent divergence in language
appears unintended to establish a difference in meaning.5 We
conclude that the unlawful evasion statutes, AS 11.56.340 and AS
11.56.350, are together intended to cover all people who fail to
return to official detention, and that the statutes' introductory
language is intended simply to classify unlawful evasion by
seriousness of the evader's original conduct, not to exclude
adjudicated delinquents from the definition of unlawful evasion.6
We AFFIRM the conviction.
_______________________________
1. Nor, if LeFever is correct, could a person who has
been adjudicated as a juvenile commit second-degree unlawful
evasion, since such a person is not "charged with or convicted of
a misdemeanor." AS 11.56.350(a).
2. In re Wilson, 532 A.2d 1167 (Pa. Super. 1987),
appeal denied, 552 A.2d 249, 252 (Pa. 1988), is therefore
distinguishable. The Pennsylvania court construed an aggravated
escape provision and held that it did not apply to adjudicated
delinquents. However, the court recognized that the defendant
remained guilty of a lesser degree of escape. 532 A.2d at 1168 &
n.2. The court did not hold, and the statute could not have been
read to provide, that adjudicated delinquents could not be
punished under the statute at all. See also Renfroe v. State,
316 N.E.2d 405 (Ind. App. 1974).
3. The term also appears in the core statute for the
offenses of promoting contraband (AS 11.56.380), the statute
describing justified use of force by guards (AS 11.81.410), and
the statute describing credit toward a sentence of imprisonment
(AS 12.55.025(c)).
4. In Stores, the defendant, who had originally been
convicted of a felony and later released on parole, escaped from
a police officer who arrested him on a warrant for a parole
violation. Id. at 207-08. This court held that the escape
statute applied because the defendant had escaped from official
detention "for" the original felony of which he had been
convicted. See also Burt v. State, 823 P.2d 14, 15 (Alaska App.
1991) (holding that bail violation statute requiring that
offender be released "in connection with a charge of felony"
applied to probationer who had originally been convicted of
felony when probationer violated bail conditions while probation
revocation petition pending).
5. The original unlawful evasion statute was passed in
1976. Former AS 11.30.093 (1976) provided as follows:
(a) A person commits an unlawful
evasion if he wilfully fails to return to
official detention, as defined in 100 of
this chapter, following temporary leave
granted for a specific purpose or limited
period including but not limited to
privileges granted under AS 33.30.150,
33.30.250, or 33.30.260.
(b) An offense charged under (a) of
this section is punishable as an unlawful
evasion in the first degree if the official
detention is on a charge of a felony.
(c) An offense charged under (a) of
this section is punished in the same manner
as an escape in the first degree if the
person during the time of unlawful evasion or
at any time before his being restored to
official detention has in his possession a
deadly weapon.
(d) Any other offense under this
section is punishable as an unlawful evasion
in the second degree.
(Emphasis added.) Former AS 11.30.100(2) (1976) provided:
"official detention" means arrest,
custody following surrender in lieu of
arrest, detention in any facility for custody
of persons under charge or conviction of
crime or alleged to be delinquent, detention
for extradition or deportation or any other
detention for law-enforcement purposes; but
"official detention" does not include
supervision on probation or parole, or
constraint incidental to release on bail.
(Emphasis added.)
Under these original statutes, any evasion from
official detention would be at least second-degree unlawful
evasion under the catchall clause in former AS 11.30.093(d)
without regard to "felony" or "misdemeanor" or "charge" or
"conviction" requirements. Furthermore, the language of former
AS 11.30.093(b) ("the official detention is on a charge of a
felony") was identical to the language of former AS
11.30.090(b)(1) (the escape statute), and this court has ruled
that the latter language was as broad as the current "for a
felony" language of AS 11.56.310(a)(1)(B). Stores, 816 P.2d at
211 n.4. The original unlawful evasion law therefore offers no
support for LeFever's position that adjudicated juvenile
delinquents could not commit that offense in any degree.
In 1978, the legislature repealed the above statutes
and enacted new definitions of unlawful evasion and official
detention. Former AS 11.56.340(a) (1978) provided: "A person
commits the crime of unlawful evasion in the first degree if he
fails to return to official detention on a charge of a felony
following temporary leave granted for a specific purpose or
limited period, including privileges granted under AS 33.30.150,
33.30.250, or 33.30.260" (emphasis added). Former AS
11.56.350(a) (1978) was identical except that it replaced the
words "first" and "felony" with "second" and "misdemeanor." It
appears that the 1978 division of unlawful evasion into two
statutes was not meant to exclude anything from the definition of
the unlawful evasion offense but instead served the same purpose
as the division in the 1976 statute: to classify all unlawful
evasions in terms of degrees of appropriate punishment. Cf.
Stores, 816 P.2d at 212 n.5. Again, the 1978 unlawful evasion
language "on a charge of a felony" was identical to the 1978
escape language.
In 1980, the language of the escape statutes was
changed to read "for a felony" instead of "on a charge of a
felony." This court in Stores held that this amendment was meant
to clarify rather than change the scope of the escape offenses.
Id. at 211 n.4. The corresponding language of the unlawful
evasion statutes was not changed at that time, nor was it changed
in 1985 when the legislature made unrelated minor changes to the
unlawful evasion statutes (replacing "he" with "the person" and
adding "33.30.288" to the list of statutory privileges). See
former AS 11.56.340, .350 (1985). This divergence of the escape
statutes' language from the unlawful evasion statutes' language
appears insignificant, however, because the legislature stated
and this court has held that the two phrases ("for a felony" and
"on a charge of a felony") have the same meaning in this context.
Finally, in 1986, the legislature rewrote the unlawful
evasion statutes into their current form. The reason for this
revision seems clear. The earlier unlawful evasion statutes had
referred to a number of prison statutes: former AS 33.30.150,
.250, .260, and .288. These were all repealed in 1986, when the
legislature rewrote that chapter of the Alaska Statutes. See ch.
88 SLA 1986. It was necessary for the new unlawful evasion
statutes to refer to the new prison statutes. In order to
accomplish this, the legislature for the first time split AS
11.56.340(a) into subsections:
A person commits the crime of unlawful
evasion in the first degree if, while charged
with or convicted of a felony,
(1) the person fails to return to
official detention within the time authorized
following temporary leave granted for a
specific purpose or limited period, including
leave granted under AS 33.30.181; or
(2) while on furlough under AS 33.30.101
-- 33.30.131 the person fails to return to
the place of confinement or residence within
the time authorized by those having direct
supervision.
This change apparently recognizes that furloughs under AS
33.30.101-.131 do not necessarily involve "official detention"
but may be furloughs from a "residence" rather than a "place of
confinement." It was therefore no longer an option for the
legislature to refer to unlawful evasion from "official detention
on a charge of a felony" (or "for a felony"). Instead, in order
to apply the introductory language of the unlawful evasion
statutes to both new subsections, one of which did not
necessarily involve official detention, the legislature had to
expand the language into a full modifying clause: "while charged
with or convicted of a felony" (or "misdemeanor"). The 1986
amendments, if anything, expanded the definition of unlawful
evasion (by clarifying that evasion from furloughs not involving
official detention was unlawful) rather than narrowed it.
6. We do not intend to imply that an adjudicated
delinquent who evades official detention while still under the
age of 18 would be convicted as an adult of unlawful evasion in
any degree. Such a minor would, of course, be subject to the
same juvenile proceedings (or possible waiver to adult
proceedings) for the unlawful evasion as any minor who violates
the criminal law of the state or a municipality.
