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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL F. PUTNAM, )
) Court of Appeals No. A-5909
Appellant, ) Trial Court No. 3KO-91-629CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1509 - December 27, 1996]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kodiak, Donald D. Hopwood, Judge.
Appearances: Michael F. Putnam, pro se.
Stephen B. Wallace, District Attorney, Kodiak,
and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Michael F. Putnam was convicted on his plea of no contest
to one count of misconduct involving a controlled substance in the
third degree, a class B felony. AS 11.71.030. Superior Court Judge
Donald D. Hopwood sentenced Putnam to a term of seven years, none
suspended. Judge Hopwood also sentenced Putnam to pay a fine of
$2,500 and suspended $1,500 of the fine on condition that Putnam
successfully complete a five-year period of probation.
Putnam later filed a motion to correct his sentence,
requesting that the probation requirement be deleted. Putnam
alleged that the sentence was illegal because it required him to be
on probation but did not suspend any period of incarceration. Judge
Hopwood summarily denied Putnam's motion, and Putnam filed this
appeal, renewing his contention that a sentence imposing probation
without suspended incarceration is illegal.
To support his argument, Putnam relies on AS 12.55.090(a);
(EN1) he focuses on the second sentence of the provision: "If a
crime is punishable by both fine and imprisonment, the court may
impose a fine and place the defendant on probation as to
imprisonment." In Putnam's view, this provision must be read to say
that if a sentencing court grants probation for a crime punishable
by both a fine and imprisonment, the court "may impose a fine," but
it is required to "place the defendant on probation as to
imprisonment."
Since placing a defendant on probation always requires
suspension of some portion of the sentence, see, e.g., Kelly v.
State, 842 P.2d 612, 613 (Alaska App. 1992), and since, in Putnam's
view, AS 12.55.090(a) authorizes the court to grant probation only
as to imprisonment when a crime is punishable by both a fine and
imprisonment, Putnam concludes that a portion of the prison term
must be suspended before probation can properly be granted in such
cases.
Putnam's argument crosses swords with the plain meaning
of AS 12.55.090(a). If the legislature had wanted the second
sentence of the provision to require courts to place defendants on
probation only as to imprisonment, thereby precluding probation
solely as to a fine, then presumably it would have said that
sentencing courts "may impose a fine and must place the defendant
on probation as to imprisonment." Instead, the legislature used the
word "may" to modify both "impose a fine" and "place the defendant
on probation"; this use of the permissive "may" implies the
existence of other alternatives.
Plain meaning is not necessarily determinative. (EN2) Yet
Alaska's case law interpreting subsection AS 12.55.090(a) tends to
support the interpretation suggested by the provision's plain
meaning. In Brown v. State, 559 P.2d 107, 109 (Alaska 1977), the
supreme court, while admitting that the "interpretation of AS
12.55.090(a) is not free from doubt," construed the second sentence
of that provision to "authorize[] the trial court to impose a fine
as a separate punishment in addition to probation where the penalty
provision of the violated criminal statute provides for both fine
and imprisonment."
The legislature's decision to treat fines and imprisonment
as independent sentencing components would suggest that either fines
or imprisonment may be suspended as a predicate to granting
probation. In Manderson v. State, 655 P.2d 1320, 1324 (Alaska App.
1983), we assumed this to be the case: noting that Manderson's five-
year term of probation was meaningless without some portion of his
sentence -- entirely unsuspended as originally imposed -- being
suspended, we remanded to the trial court, indicating the court
could "impose a probationary period only if some portion of
Manderson's sentence or fine is suspended." And in Kelly v. State,
842 P.2d at 613, emphasizing that probation unaccompanied by
something suspended is meaningless, we spoke of the need to suspend
"a portion of the sentence"; we drew no distinction between
imprisonment and fine.
Putnam nonetheless points out that AS 12.55.090(a) was
apparently modeled on former 18 U.S.C. sec. 3651. (EN3) See Jackson
v. State, 541 P.2d 23, 25 (Alaska 1975). The third paragraph of the
federal statute is virtually identical to AS 12.55.090(a). Putnam
cites federal case law construing the federal statute to require
suspension of jail time as a prerequisite to a valid grant of
probation. (EN4) Because AS 12.55.090(a) was modeled on 18 U.S.C.
sec. 3651, Putnam maintains that interpretation of the Alaska
provision must be informed by the federal cases.
Putnam's argument is both right and wrong: federal cases
do require suspended jail time as a prerequisite to a valid grant
of probation under sec. 3651; but a careful reading of these cases
and a comparison of federal and Alaska law reveal that the federal
cases are based on language in sec. 3651 that has not been carried
over to the Alaska Statutes.
Courts have no inherent power to suspend the execution of
any portion of a sentence. Pete v. State, 379 P.2d 625, 626 (Alaska
1963). In Alaska, this power derives, not from AS 12.55.090, but
from AS 12.55.080. See Curtis v. State, 831 P.2d 359, 361 (Alaska
App. 1992). Alaska Statutes 12.55.080 provides:
Upon entering a judgment of conviction of
a crime, or at any time within 60 days from the
date of entry of that judgment of conviction,
a court, when satisfied that the ends of
justice and the best interest of the public as
well as the defendant will be served thereby,
may suspend the imposition or execution or
balance of the sentence or a portion thereof,
and place the defendant on probation for a
period and upon the terms and conditions as the
court considers best.
Section .080 is closely related to AS 12.55.090(a) -- the
statute principally at issue in Putnam's case. These two provisions
were enacted together and must be read in pari materia. Jackson v.
State, 541 P.2d at 25.
As we have seen, AS 12.55.090(a) mirrors the third para-
graph of 18 U.S.C. sec. 3651, its federal counterpart. By contrast,
AS 12.55.080, although roughly patterned after the second paragraph
of 18 U.S.C. sec. 3651, differs markedly from its federal
counterpart. Section .080 expressly allows Alaska courts to suspend
the execution of any "sentence or a portion thereof." Under this
provision, "a court may suspend the execution of all or a portion
of a sentence and place the defendant on probation[.]" Tiedeman v.
State, 576 P.2d 114, 116 n.11 (Alaska 1978) (emphasis omitted).
Hence, for crimes punishable by a fine, by imprisonment or a fine,
or by both imprisonment and a fine, AS 12.55.080 generally empowers
Alaska courts to impose fines and suspend their execution in whole
or in part. (EN5)
The situation differs markedly in the federal counterpart
to AS 12.55.080 -- the second paragraph of former 18 U.S.C. sec.
3651 -- which vests federal courts with extremely narrow authority
to split a single sentence into suspended and unsuspended
components:
Upon entering a judgment of conviction of
any offense not punishable by death or life
imprisonment, if the maximum punishment
provided for such offense is more than six
months, any court having jurisdiction to try
offenses against the United States, when
satisfied that the ends of justice and the best
interest of the public as well as the defendant
will be served thereby, may impose a sentence
in excess of six months and provide that the
defendant be confined in a jail-type institu-
tion or a treatment institution for a period
not exceeding six months and that the execution
of the remainder of the sentence be suspended
and the defendant placed on probation for such
period and upon such terms and conditions as
the court deems best.
The differences between this provision and AS 12.55.080
are apparent. Unlike AS 12.55.080, which generally empowers Alaska
courts to split probationary sentences by suspending execution of
any portion and leaving any other portion or portions unsuspended,
the second paragraph of 18 U.S.C. sec. 3651 strictly curtails the
power of federal courts to order split sentences: a federal court
granting probation under the second paragraph of 18 U.S.C. sec. 3651
must first impose a term of incarceration exceeding six months;
after so doing, the court is vested with limited power to provide
for a limited period of unsuspended incarceration -- "a period not
exceeding six months," which the defendant will serve "in a
jail-type institution or a treatment institution"; all other
components of the sentence -- "the remainder of the sentence" --
must be suspended.
It is this paragraph -- unique to the federal statute and
far narrower than its Alaska counterpart -- that has led federal
courts to conclude that suspended incarceration is a prerequisite
to a valid grant of probation. (EN6) On its face, the provision
requires all single-count probationary sentences to include
suspended incarceration.
The second paragraph of 18 U.S.C. sec. 3651, standing
alone, would also preclude federal courts from granting probation
and simultaneously imposing an unsuspended fine: since the provision
allows no more than six months of a probationary sentence to remain
unsuspended and requires "the remainder" to be suspended, and since
any fine imposed as part of the sentence would necessarily be
included in "the remainder," the provision leaves federal judges no
power to impose unsuspended fines.
But the second paragraph of 18 U.S.C. sec. 3651 does not
stand alone; rather, the statute's second and third paragraphs must
be read together. Cf. Jackson v. State, 541 P.2d at 25. Only when
we consider the narrow scope of authority conferred under the second
paragraph of 18 U.S.C. sec. 3651 does the third paragraph's
significance become apparent: by providing that "the court may
impose a fine and place the defendant on probation as to
imprisonment," the third paragraph of the statute gives federal
courts a power not vested in the second, namely, the power to impose
an unsuspended fine while suspending incarceration and granting
probation. As reflected in the Alaska Supreme Court's
interpretation of the identical language of AS 12.55.090(a), this
segment of the statute "authorize[s] the trial court to impose a
fine as a separate punishment in addition to probation[.]" Brown
v. State, 559 P.2d at 109.
Although the language of the third paragraph of sec. 3651
has been incorporated verbatim in AS 12.55.090(a), it does not enjoy
the same significance in the context of Alaska law as it does in the
context of federal law. The breadth of power built into AS
12.55.080 reduces the second sentence of AS 12.55.090(a) to an
essentially vestigial role: in its Alaska context this language
merely clarifies the court's authority to wield powers already gran
(EN7)
For these reasons, we find Putnam mistaken in claiming
that AS 12.55.090(a) deprived the court of authority to order
probation as an adjunct to suspension of a portion of his fine. The
court's authority to suspend a portion of Putnam's fine and place
him on probation derives from AS 12.55.080. Alaska Statutes
12.55.090(a) makes clear that the court could have opted to impose
an unsuspended fine, while ordering probation as a condition of
suspended incarceration. Nothing in the latter provision, however,
limited the court's authority, under the former, to order
unsuspended incarceration, a partially suspended fine, and a period
of probation.
The superior court's order denying Putnam's motion to
correct his sentence is AFFIRMED.
ENDNOTES:
1 In its entirety, AS 12.55.090(a) provides:
Probation may be granted whether the
crime is punishable by a fine or imprisonment
or both. If a crime is punishable by both
fine and imprisonment, the court may impose a
fine and place the defendant on probation as
to imprisonment. Probation may be limited to
one or more counts or indictments, but, in the
absence of express limitation, shall extend to
the entire sentence and judgment.
2 Alaska eschews the plain meaning rule of statutory
interpretation, favoring a sliding scale approach. Peninsula
Marketing Ass'n v. State, 817 P.2d 917, 922 (Alaska 1991). Under
the sliding scale approach, when legislative intent conflicts with
plain meaning, we seek a balance between the two: "the plainer the
language of the statute, the more convincing contrary legislative
history must be." Marlow v. Anchorage, 889 P.2d 599, 602 (Alaska
1995) (citing Peninsula Marketing Ass'n v. State, 817 P.2d at 922
and Homer v. Gangl, 650 P.2d 396, 400 n.4 (Alaska 1982)).
3 Paragraphs 2 and 3 of former 18 U.S.C. section 3651 provide,
in relevant part:
Upon entering a judgment of conviction of
any offense not punishable by death or life
imprisonment, if the maximum punishment
provided for such offense is more than six
months, any court having jurisdiction to try
offenses against the United States, when
satisfied that the ends of justice and the
best interest of the public as well as the
defendant will be served thereby, may impose a
sentence in excess of six months and provide
that the defendant be confined in a jail-type
institution or a treatment institution for a
period not exceeding six months and that the
execution of the remainder of the sentence be
suspended and the defendant placed on
probation for such period and upon such terms
and conditions as the court deems best.
Probation may be granted whether the
offense is punishable by fine or imprisonment
or both. If an offense is punishable by both
fine and imprisonment, the court may impose a
fine and place the defendant on probation as
to imprisonment. Probation may be limited to
one or more counts or indictments, but, in the
absence of express limitation, shall extend to
the entire sentence and judgment.
18 U.S.C. sec. 3651, repealed by Pub. L. 98-473, Title II, sec.
212(a)(1), (2), 98 Stat. 1987.
4 In United States v. Stupak, 362 F.2d 933 (3d Cir. 1966), the court concluded that a
federal judge imposing sentence under section 3651 "may not require a defendant to submit to
probationary supervision unless the execution of part of his prison term is suspended. As a
prerequisite to an order of probation the execution of part of the prison sentence must be
suspended." Stupak, in turn, has been widely followed by the federal courts and continues to
be relied on, at least as to probationary sentences involving single-count convictions. See, e.g.,
United States v. Stephens, 966 F.2d 511, 513-14 (9th Cir. 1992); United States v. Makres, 851
F.2d 1016, 1018 (7th Cir. 1988).
5 This general authority may, of course, be curtailed by
specific limiting provisions. See Curtis v. State, 831 P.2d at
361. No specific limitation is at issue in the present case.
6 See, e.g., United States v. Stupak, 362 F.2d at 934.
7 This, more than anything else, seems to explain why interpretation of AS 12.55.090(a)
seemed "not free from doubt," in the context of Alaska's sentencing statutes, to the court in
Brown v. State, 559 P.2d at 109.
