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THE COURT OF APPEALS OF THE STATE OF ALASKA
TIMOTHY D. MACK, )
) Court of Appeals No. A-5440
Appellant, ) Trial Court No. 3PA-S94-1301CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1431 - August 18, 1995]
Appellee. )
______________________________)
Appeal from the District Court, Third
Judicial District, Palmer, Peter J. Ashman,
Judge.
Appearances: Kirsten Bey, Assistant
Public Defender, Palmer, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
James L. Hanley, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Timothy D. Mack pled no contest to attempted sexual
abuse of a minor in the third degree, in violation of AS
11.41.438(a)(1) and 11.31.100(a). The offense is a class A
misdemeanor. At his sentencing hearing, Mack requested the court
to suspend the imposition of his sentence. District Court Judge
Peter J. Ashman denied the request, concluding that a suspended
imposition of sentence was legally barred in any case involving
an offender convicted of either an attempted or completed act of
sexual abuse or assault. Judge Ashman sentenced Mack to a term
of 180 days, all suspended. Mack appeals, arguing that the
sentencing court erred in concluding that it had no authority to
suspend the imposition of Mack's sentence. We affirm.
Under AS 12.55.085(a), sentencing courts have broad
discretion to suspend the imposition of a sentence; the scope of
the court's discretion, however, is limited by the exceptions
specified in AS 12.55.085(f). Subsection (f)(1) expressly
prohibits courts from suspending the imposition of sentence of a
person who "is convicted of a violation of AS 11.41.410 -
11.41.455."1 The crimes covered by this exception comprise
article 4, chapter 41, of the Alaska Statutes, the article
defining all sexual offenses included within Alaska's revised
criminal code.
Sexual abuse of a minor in the third degree, a
violation of AS 11.41.438, is among the provisions in article 4,
so a person convicted of the completed crime of third-degree
sexual abuse of a minor plainly is not eligible for a suspended
imposition of sentence. Mack, however, was not convicted of
third-degree sexual abuse of a minor, but of attempted third-
degree sexual abuse. The crime of attempted third-degree sexual
abuse of a minor implicates not only the substantive statute
covering third-degree sexual abuse (AS 11.41.438), but also the
criminal code's general attempt provision (AS 11.31.100(a)). The
general attempt statute is not expressly listed in AS
12.55.085(f)(1) as an offense for which a suspended imposition of
sentence is barred. Mack reasons that, because he was convicted
of attempted, rather than completed, third-degree sexual abuse, a
suspended imposition of sentence was permissible in his case.
The narrow issue presented is thus whether a person
found guilty of attempting to commit one of the sexual offenses
defined in Alaska's criminal code should be deemed to have been
"convicted of a violation of" that offense, for purposes of
applying the statutory prohibition against the granting of a
suspended imposition of sentence.
Mack urges us to resolve this issue by adopting the
plain meaning of AS 12.55.085(f)(1), the statutory restriction
against the granting of a suspended imposition of sentence in
sexual offenses. In Mack's view, subsection (f)(1)'s failure to
list the criminal code's attempt statute among the provisions it
covers makes it plain that the restriction against granting a
suspended imposition of sentence is not meant to apply to
attempts -- only to completed sexual offenses.
In our view, however, the meaning of subsection (f)(1)
is hardly plain from the face of the statute itself. As defined
in AS 11.31.100(a)(1), attempt does not occur in the abstract,
but only in connection with a separate, substantive offense; the
attempt statute provides that "[a] person is guilty of an attempt
to commit a crime if, with intent to commit a crime, the person
engages in conduct which constitutes a substantial step toward
the commission of that crime." Hence, attempt cannot be charged
alone; a proper charge of attempt must refer not only to the
attempt statute but to the underlying substantive offense.2
Because any properly filed charge of attempt to commit a sexual
offense will necessarily allege a violation of both the general
attempt provision and one of the substantive offenses defined in
AS 11.41.400 - 11.41.455, it is far from "plain" that AS
12.55.085(f)(1), on its face, excludes attempted sexual offenses.3
In the present case, for instance, Mack pled no contest to a
charge that expressly alleged a violation of both the general
attempt statute and the statute proscribing sexual abuse of a
minor in the third degree. It is not clear to us why he should
not be deemed to have violated both provisions for purposes of AS
12.55.085(f)(1).
The legislative history of the bill enacting paragraph
(f)(1) clearly evinces the legislature's intent to include all
forms of sexual offenses within the restriction against the
granting of a suspended imposition of sentence. The restriction
itself arose from concern over what the legislature perceived to
be the repeated and escalating nature of conduct exhibited by
many sexual offenders -- a pattern of conduct plainly unsuited to
the purposes of the suspended imposition of sentence statute.
Speaking before the Senate Health, Education and Social Services
Committee, the bill's primary sponsor, then Representative Fran
Ulmer, testified that because sexual offenders often begin with
the less serious offenses and then graduate to more serious ones,
the bill was intended to "cover the entire range of sex
offenses."4
Little more than common sense is necessary to conclude
that "the entire range of sex offenses" includes both attempted
and completed acts of sexual assault and abuse. And it would
defy both common sense and logic to think that a legislature
concerned over the repetitive and escalating nature of sexual
offenders' conduct would think it fitting to bar a suspended
imposition of sentence only for a completed offense, and not for
an attempt. Finally, construing the disputed statute to exclude
attempted sexual offenses would have anomalous consequences, for
it would result in an unconditional bar against the granting of a
suspended imposition of sentence in even the least serious
categories of completed sexual offenses, which constitute class A
misdemeanors,5 while simultaneously allowing the same disposition
in more serious attempted sexual assault cases, which are
felonies.6
Mack nevertheless contends that since AS
12.55.085(f)(1) does not expressly cover persons convicted of
attempted violations of AS 11.41.410 - 11.41.455, the statute is
ambiguous. He cites the general rule that ambiguities in penal
statutes are to be strictly construed in favor of the defendant.
But
[s]trict construction does not require
that statutes be given the narrowest meaning
allowed by the language; rather, the language
should be given "a reasonable or common sense
construction, consonant with the objectives
of the legislature." The intent of the
legislature must govern and the policies and
purposes of the statute should not be
defeated.
Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App. 1981)
(citations omitted).
The Alaska Supreme Court considered an issue of
statutory construction similar to this one in Brookins v. State,
600 P.2d 12 (Alaska 1979). The court ruled that former AS
11.15.295, which provided that "[a] person who uses or carries a
firearm during the commission of a robbery ... is guilty of a
felony and upon conviction for a first offense is punishable by
imprisonment for not less than 10 years[,]" applied to attempted
as well as completed robberies. The court held:
A strict reading of the statute raises
the question of whether it should apply to an
attempt to commit a certain action, or only
to situations in which the action is
completed. The statute is ambiguous on this
point, but after consideration in pari
materia with the other relevant statutes, and
in view of the similar public policy against
use of a firearm in either an attempted or
completed robbery, we conclude that on proper
facts AS 11.15.295 may be applied in the case
of an attempted robbery.
600 P.2d at 17.
In Mack's case as well, public policy dictates that
attempted sexual abuse be treated like the completed offense for
purposes of the suspended imposition of sentence restriction.
There is no basis in reason or law for distinguishing attempted
from completed sexual offenses under the suspended imposition of
sentence statute. Judge Ashman correctly ruled that AS
12.55.085(f)(1) barred the court from granting a suspended
imposition of sentence in Mack's case.
The judgment of the district court is AFFIRMED.
_______________________________
1. AS 12.55.085 provides, in relevant part:
(a) Except as provided in (f) of this section, if it
appears that there are circumstances in mitigation of
the punishment, or that the ends of justice will be
served, the court may, in its discretion, suspend the
imposition of sentence and may direct that the
suspension continue for a period of time, not exceeding
the maximum term of sentence that may be imposed or a
period of one year, whichever is greater, and upon the
terms and conditions that the court determines, and
shall place the person on probation, under the charge
and supervision of the probation officer of the court
during the suspension.
. . .
(f) The court may not suspend the imposition of
sentence of a person who
(1) is convicted of a violation of AS
11.41.410 - 11.41.455[.]
2. Alaska's treatment of attempt as an inchoate form of
the substantive offense reflects the traditional view of attempt,
which, in its original form, "rested on the doctrine that
voluntas reputabitur pro facto -- the intention is to be taken
for the deed." 2 Wayne R. LaFave and Austin W. Scott, Jr.,
Substantive Criminal Law 6.2(a), at 18 (1986). The commentary
to the Model Penal Code, which classifies most attempts as the
same grade of crime as the completed offense, points out that
with the exception of general deterrence, the bases for
sentencing are the same whether the crime is completed or only
attempted: "To the extent that sentencing depends upon the
antisocial disposition of the actor and the demonstrated need for
a corrective sanction, there is likely to be little difference in
the gravity of the required measures depending on the
consummation or the failure of the plan." American Law
Institute, Model Penal Code and Commentaries 5.05 comment at
490 (1985).
3. In any event, Alaska's courts "do[] not adhere to a
`plain meaning rule' of statutory interpretation that disregards
any consideration of legislative purpose or intent." LeFever v.
State, 877 P.2d 1298, 1299 (Alaska App. 1994). Instead, we apply
a "sliding scale," balancing the evidence of the legislature's
intent against the clarity of the statutory language. As the
discussion in the text indicates, the legislative history of AS
12.55.085(f)(1) makes it clear that the legislature intended the
restriction against granting a suspended imposition of sentence
to be comprehensive.
4. Statements made by a bill's sponsor in the course of
legislative deliberations are relevant evidence when a court is
trying to determine legislative intent. Madison v. Alaska Dep't
of Fish and Game, 696 P.2d 168, 176 (Alaska 1985)(citation
omitted).
5. See, e.g., AS 11.41.440(b), providing that sexual abuse
of a minor in the fourth degree is a class A misdemeanor.
6. For example, attempted sexual abuse of a minor in the
second degree would constitute a class C felony. See AS
11.41.436; 11.31.100(d)(4).
We note that, regardless of how AS 12.55.085(f)(1) is
interpreted, a suspended imposition of sentence could not be
granted for an attempted first-degree sexual assault or abuse,
since the attempt would constitute a class A felony. Under AS
12.55.125, suspended impositions of sentence in all class A
felonies are barred.
