NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALEXANDER HILLMAN, )
) Court of Appeals No. A-6191
Appellant, ) Trial Court No. 3AN-95-7977 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1539 - June 20, 1997]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Stephanie Rhoades, Judge.
Appearances: Kelly E. Gillilan-Gibson, James
E. Gorton & Associates, Anchorage, for Appellant. James L. Walker,
Assistant Municipal Prosecutor, and Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Joannides, District Court Judge.
MANNHEIMER, Judge.
Alexander Hillman pleaded no contest to driving while
intoxicated, a violation of Anchorage Municipal Code sec. 9.28.020.
Because Hillman had two prior convictions for this offense, the
district court ordered forfeiture of Hillman's vehicle a required
penalty under sec. 9.28.020(C)(5)(b).
Hillman alleges that his vehicle is worth $8000. Based
on this appraisal, Hillman contends that the forfeiture of his
vehicle constitutes a prohibited "excessive fine" within the meaning
of the Eighth Amendment to the United States Constitution and
Article I, Section 12 of the Alaska Constitution. [Fn. 1] Hillman
also contends that forfeiture of an $8000 vehicle violates Alaska
law because, under AS 12.55.035(b), the maximum fine for a class A
misdemeanor is $5000.
We assume for purposes of deciding this case that
Hillman's vehicle is indeed worth $8000. Nevertheless, as explained
below, we reject both Hillman's constitutional argument and his
statutory argument. We therefore affirm the forfeiture of his
vehicle.
Our jurisdiction to entertain this appeal
Before addressing the merits of Hillman's arguments, we
first must answer the Municipality's contention that Hillman has no
right to appeal the forfeiture and that this court has no
jurisdiction to hear Hillman's appeal. The Municipality relies on
AS 22.07.020(c), which states:
The court of appeals has jurisdiction to
review ... (2) the final decision of the district court on a
sentence imposed by it if the sentence exceeds 120 days of
unsuspended incarceration for a misdemeanor offense.
The district court sentenced Hillman to 360 days' imprisonment with
300 days suspended, or 60 days to serve. Because Hillman received
only 60 days of unsuspended incarceration, the Municipality argues
that this court has no jurisdiction to hear his appeal. [Fn. 2]
As we explain in more detail below, we do not interpret
AS 22.07.020(c) as prohibiting this court from reviewing any aspect
of a district court's sentencing decision when the defendant
receives 120 days or less to serve. This court retains the right
to review an illegal sentence, regardless of how much (or how
little) imprisonment is imposed on the defendant.
AS 22.07.020(c) was intended to restrict this court's
jurisdiction to hear sentence appeals from the district court; this
jurisdictional provision complements the new restrictions on
district court sentence appeals embodied in the 1995 amendments to
the sentence appeal statute, AS 12.55.120. Under the 1995 amendment
to AS 12.55.120(d), district court defendants may not pursue a
sentence appeal unless they receive more than 120 days to serve.
In this context, a "sentence appeal" is an appeal in which the
defendant concedes the legality of the sentence but contends that
the sentencing judge abused his or her discretion by imposing an
unduly harsh punishment. See Rozkydal v. State, Opinion No. 1532
(Alaska App., May 30, 1997), slip opinion at 5. The legislature's
simultaneous amendment of AS 22.07.020(c) the insertion of the
phrase "if the sentence exceeds 120 days of unsuspended
incarceration" was intended as the jurisdictional counterpart to
the new restriction on sentence appeals.
Hillman's appeal, however, is not a "sentence appeal".
Hillman contends that his sentence is illegal. This court continues
to possess the authority to review claims that a sentence is
illegal, even when the sentence does not exceed 120 days to serve.
(Those readers who believe this conclusion is self-evident may skip
the rest of this section.)
The current version of AS 22.07.020(c) was enacted in 1995
as part of the Alaska Legislature's re-working of various aspects
of criminal procedure. See SLA 1995, ch. 79. In this 1995 session
law, the legislature amended AS 12.55.120 (the sentence appeal
statute) to limit the right of sentence appeal. See SLA 1995, ch.
79, sec.sec. 7-8. Now, defendants convicted of felonies can pursue
a
sentence appeal only if they receive a composite sentence exceeding
2 years to serve. AS 12.55.120(a). Similarly, defendants convicted
of misdemeanors in district court can pursue a sentence appeal only
if they receive a composite sentence exceeding 120 days to serve.
AS 12.55.120(d).
At the same time, the legislature amended three provisions
of Title 22 to reflect corresponding limits on the judiciary's
jurisdiction to hear sentence appeals. The legislature amended
AS 22.07.020(b), the statute governing this court's jurisdiction to
hear sentence appeals from the superior court. SLA 1995, ch. 79,
sec. 11. The legislature also amended AS 22.07.020(c), the statute
governing this court's jurisdiction to hear appeals from the
district court. SLA 1995, ch. 79, sec. 12. And, because the
superior
court also has jurisdiction to review decisions of the district
court, the legislature amended AS 22.10.020(f), the statute
governing the superior court's jurisdiction to hear sentence appeals
from the district court. SLA 1995, ch. 79, sec. 13.
Recently, in Rozkydal v. State, Opinion No. 1532 (Alaska
App., May 30, 1997), we interpreted the revised sentence appeal
statute, AS 12.55.120. We clarified that the appeals governed by
AS 12.55.120 are premised on the assumption that the defendant's
sentence was lawfully imposed. In a sentence appeal, the defendant
asserts that a lawful sentence is excessive i.e., that it
constitutes an abuse of sentencing discretion. Hillman, however,
asserts that his sentence is illegal in fact, unconstitutional.
Thus, Hillman's appeal is not a "sentence appeal" governed by
AS 12.55.120, and his assertions of error are appealable regardless
of the length of his sentence. Rozkydal, slip opinion at 4-5.
Although we clarified the meaning of AS 12.55.120 in
Rozkydal, a potential problem of statutory interpretation still
exists with regard to this court's jurisdictional statute. The
problem is that AS 22.07.020(c) (the portion of the statute that
gives this court jurisdiction over district court sentence appeals)
does not specifically refer to "sentence appeals". Instead,
AS 22.07.020(c) declares that this court has "jurisdiction to review
... the final decision of the district court on a sentence imposed
by it if the sentence exceeds 120 days of unsuspended
incarceration".
The Municipality construes this provision as encompassing
more than simply the "sentence appeals" defined in Rozkydal. The
Municipality reads AS 22.07.020(c) as barring the court of appeals
from reviewing any aspect of a sentence imposed by the district
court unless the defendant received more than 120 days to serve.
We, however, do not believe that this is a sensible interpretation
of the statute.
The problem is not specific to AS 22.07.020(c). Both of
the sentence appeal provisions in AS 22.07.020 are potentially
ambiguous. For instance, AS 22.07.020(b) gives this court juris-
diction to "hear appeals of unsuspended sentences of imprisonment
... imposed by the superior court on the grounds that the sentence
is excessive or ... too lenient". This statutory language
conceivably could be read as a limitation on this court's power of
review restricting our review of superior court sentences to the
issues of excessive harshness or leniency. Under such an
interpretation, we would have no authority to review a superior
court sentence on the ground that it was illegal or that it was
imposed in an unlawful manner. However, the legislative history of
both AS 22.07.020(b) and 020(c) shows that such an interpretation
is mistaken.
The wording of AS 22.07.020(b) actually predates the
creation of the court of appeals. This statutory provision
originated in SLA 1969, ch. 117, sec. 1 legislation that was
enacted in response to the supreme court's decision in Bear v.
State, 439 P.2d 432 (Alaska 1968). In Bear, the supreme court held
that, absent legislative authorization, it had no authority to
review a lawful sentence "for abuse of discretion" that is, for
excessive severity or leniency. Id. at 433, 435. The supreme court
did not question its authority to decide cases in which the
defendant claimed that the sentence was illegal, or cases in which
the defendant claimed that the sentencing procedures were flawed.
Id. at 436, 438. The issue presented in Bear was much narrower:
whether the court had the authority to hear an appeal in which the
defendant conceded the legality of the sentence but argued that the
sentence constituted an abuse of sentencing discretion. Id. The
court ruled that it had no such authority.
In response, the legislature enacted a new statute,
AS 12.55.120, that explicitly authorized sentence appeals. See SLA
1969, ch. 117, sec. 4. At the same time, the legislature added a
new subsection (b) to the supreme court's jurisdictional statute
(AS 22.05.010) that confirmed the supreme court's jurisdiction to
hear the now-authorized sentence appeals. See SLA 1969, ch. 117,
sec. 1. The pertinent language of former AS 22.05.010(b) vested the
supreme court with "jurisdiction to hear appeals of sentences of
imprisonment lawfully imposed by the superior court[] on the grounds
that the sentence is excessive or too lenient".
Interpreting this jurisdictional provision in context, it
is clear that the provision was not intended to limit the supreme
court's review of sentences to the issues of excessive harshness or
leniency. Rather, the provision was intended to expand the supreme
court's power of review to include issues of excessive harshness or
leniency.
In 1980, when the legislature created the court of
appeals, the legislature took the sentence appeal language from the
supreme court's jurisdictional statute, AS 22.05.010(b), and placed
this language in AS 22.07.020(b). See SLA 1980, ch. 12, sec. 1.
The legislature then drafted a second sentence appeal provision,
AS 22.07.020(c)(2), to give this court jurisdiction over district
court sentence appeals.
(A second sentence appeal provision was needed because
district court litigants had never had a right of direct appeal to
the supreme court; thus, no clause of the supreme court's
jurisdictional statute dealt with district court sentence appeals.
[Fn. 3] When the court of appeals was created, the legislature
chose to give district court criminal litigants the choice of
appealing either to the superior court or to the court of appeals.
See AS 22.07.020(d), enacted in SLA 1980, ch. 12, sec. 1. Thus, the
legislature had to add language to AS 22.07.020 authorizing the
court of appeals to hear district court sentence appeals. That
language ended up in AS 22.07.020(c).)
When the legislature drafted AS 22.07.020(c), it did not
use the language of the sibling provision, AS 22.07.020(b)
(governing sentence appeals from the superior court). Clause (2)
of AS 22.07.020(c) declares that this court has authority to review
"the final decision of the district court on a sentence imposed by
it". But although the legislature phrased AS 22.07.020(c)(2)
differently from AS 22.07.020(b) (and differently from AS 22.10.-
010(a), the statute that vests the superior court with jurisdiction
to hear district court sentence appeals), the intent of
AS 22.07.020(c) appears to have been simply to vest this court with
jurisdiction over district court sentence appeals.
The 1995 amendment to AS 22.07.020(c)(2) did not alter the
operative language of the statute; the 1995 amendment simply
appended the phrase "if the sentence exceeds 120 days of unsuspended
incarceration for a misdemeanor offense". This additional language
reflects the amendment to the sentence appeal statute,
AS 12.55.120(d), which now restricts district court sentence appeals
to defendants whose composite time to serve exceeds 120 days.
Based on this legislative history, we conclude that
AS 22.07.020(c)(2) was intended to confirm that the court of appeals
has jurisdiction to hear sentence appeals from the district court.
We reject the Municipality's suggestion that the statute was
intended to prevent this court from reviewing any aspect of a
district court sentence unless the sentence exceeds 120 days to
serve.
We note that the Municipality's interpretation of AS 22.-
07.020(c) would lead to absurd results. If in fact the court of
appeals lacked jurisdiction to review any aspect of a district court
sentence of less than 120 days' unsuspended incarceration, then this
court would presumably be powerless to intervene when a district
court judge sentenced a defendant to jail for 100 days for a class
B misdemeanor (a class of offense punishable by no more than 90
days' imprisonment see AS 12.55.135(b)), or when a district court
judge sentenced a defendant to 30 days for negligent driving (an
offense that is not punishable by imprisonment see AS 28.35.-
045(c); AS 28.40.050(c)-(d)).
Moreover, we note that AS 22.07.020(e) vests this court
with wide-ranging discretionary jurisdiction to review appellate
decisions of the superior court. The superior court is vested with
plenary jurisdiction over appeals from the district court. See
AS 22.10.020(d), which gives the superior court "jurisdiction in all
matters appealed to it from a subordinate court". Under the
Municipality's interpretation of AS 22.07.020(c), there would be
many instances in which the court of appeals would lack jurisdiction
to hear a direct appeal from the district court, but we would have
jurisdiction to review the same issues if the defendant first
appealed to the superior court and then brought a petition for
hearing to this court. "In ascertaining the legislature's intent,
this court 'is obliged to avoid construing statutes in a way that
leads to patently absurd results or to defeat of the obvious
legislative purpose behind the statute'." Turney v. State, 922 P.2d
283, 292 (Alaska App. 1996) (quoting State v. Lowrence, 858 P.2d
635, 638 (Alaska App. 1993)).
For all of these reasons, we reject the Municipality's
contention that AS 22.07.020(c)(2) was intended to bar this court
from correcting any and all illegalities in district court sentences
of 120 days or less. Instead, we conclude that AS 22.07.020(c)(2)
refers to sentence appeals from the district court, and that the
statute's reference to unsuspended sentences of more than 120 days
was intended to incorporate the limitation placed on district court
sentence appeals by AS 12.55.120(d).
We turn now to the merits of Hillman's arguments that his
forfeiture is illegal.
Is forfeiture of Hillman's vehicle an "excessive fine"?
Under Anchorage Municipal Code sec. 9.28.020(C)(5), if a
person is convicted of driving while intoxicated for a second or
subsequent time within 10 years, and if the person "has any interest
in the vehicle used in the commission of the offense, the
[sentencing] court shall order that ... the person's interest in the
vehicle be forfeited to the [Municipality of Anchorage]". Hillman
had two prior convictions, so the district court ordered his vehicle
forfeited to the Municipality.
As noted above, Hillman contends that this forfeiture is
unconstitutional. He claims that his vehicle is worth $8000, and
he further claims that, when a person's offense is driving while
intoxicated, the forfeiture of property worth that much is an
"excessive fine" in violation of the federal and state
constitutions.
The law distinguishes between in personam forfeitures,
which are inflicted as punishment for a crime, and in rem
forfeitures, which can be inflicted on property owners who are
themselves innocent of crime, if the government proves that the
property is contraband or is connected to the commission of a
criminal act. See Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 684; 94 S.Ct. 2080, 2092; 40 L.Ed.2d 452 (1974); The
Palmyra, 12 Wheat. 1, 14-15; 6 L.Ed. 531 (1827). The forfeiture of
Hillman's vehicle as punishment for his own criminal conduct is an
in personam forfeiture. The United States Supreme Court has held
that the Eighth Amendment's proscription on "excessive fines"
extends to in personam forfeitures. Alexander v. United States, 509
U.S. 544, 558-59, 113 S.Ct. 2766, 2775-76; 125 L.Ed.2d 441 (1993).
Thus, the government's power to order forfeiture of Hillman's
vehicle is potentially limited by the Eighth Amendment.
The ultimate question in assessing Hillman's Eighth
Amendment claim is whether the forfeiture is grossly dispropor-
tionate to his crime. See generally Harmelin v. Michigan, 501 U.S.
957, 996-1005; 111 S.Ct. 2680, 2702-07; 115 L.Ed.2d 836 (1991)
(interpreting the Eighth Amendment not to require strict
proportionality between a crime and a sentence, but to forbid only
"extreme sentences that are grossly disproportionate to the crime").
A similar test is used for judging excessiveness of punishment under
the Alaska Constitution:
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" [are] 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).
McNabb v. State, 860 P.2d 1294, 1298 (Alaska App. 1993).
Hillman first argues that the district court committed
procedural error by summarily rejecting Hillman's "excessive fine"
contention. Hillman asserts that whenever a criminal defendant
alleges that he or she is being subjected to a constitutionally
excessive forfeiture, the sentencing court is obliged to conduct a
particularized analysis of the proportionality of that forfeiture
to the defendant's conduct in committing the crime. Hillman points
out that several federal appellate circuits have established
criteria for judging the proportionality of a forfeiture, criteria
designed to be applied on a case-by-case basis. See United States
v. Certain Real Property Located at 11869 Westshore Drive, 70 F.3d
923 (6th Cir. 1995); United States v. Real Property Located in El
Dorado, California, 59 F.3d 974, 985-86 (9th Cir. 1995). [Fn. 4]
The federal case law that Hillman cites is not directly
on point. These federal cases deal with in rem forfeitures
forfeitures that are based, not on the criminal culpability of the
property owner, but on the nexus between the property and criminal
conduct (regardless of who committed the crime). As we pointed out
above, the forfeiture of Hillman's vehicle was an in personam
forfeiture a forfeiture based on Hillman's personal guilt of a
criminal offense. When a court is dealing with in personam
forfeiture, there is little point to holding a hearing on some of
the criteria listed in the federal cases. For example, El Dorado
directs a court to examine "whether the [property] owner was
negligent or reckless in allowing the illegal use of [the] property"
and "whether the owner was directly involved in the illegal
activity". 59 F.3d at 986. Because an in personam forfeiture of
property is premised on the defendant's conviction of a crime, these
factors are self-evident.
Moreover, the federal courts agree that when a defendant
claims that a forfeiture amounts to an "excessive fine", the burden
is ultimately on the defendant to prove that the forfeiture is
grossly disproportionate to the defendant's offense. See 11869
Westshore Drive, 70 F.3d at 930; El Dorado, 59 F.3d at 985. It thus
appears that, even under the federal cases that require a
"proportionality" analysis of forfeitures, a sentencing court is
obliged to hold a special hearing to investigate a defendant's
Eighth Amendment claim only if the defendant first alleges facts
that raise a reasonable possibility that the forfeiture is
constitutionally excessive.
Hillman presents no facts or cases suggesting that
forfeiture of a vehicle worth $8000 is "grossly disproportionate"
to his offense of repeat drunk driving. In fact, Hillman concedes
that the most pertinent case he could find goes against him. In
State v. Ziepfel, 669 N.E.2d 299 (Ohio App. 1995), the defendant was
convicted of his fourth drunk driving offense. The Ohio Court of
Appeals upheld forfeiture of Ziepfel's vehicle (a particularly
expensive motorcycle, valued at between $23,000 and $30,000) against
Ziepfel's claim that forfeiture of this vehicle constituted an
"excessive fine" under the Eighth Amendment. The court concluded
that Ziepfel's case did not present "one of those rare situations
where the forfeiture is so grossly disproportionate to the offense
as to constitute an excessive fine". Ziepfel, 669 N.E.2d at 304.
Hillman concedes that Ziepfel may be "persuasive", but he
points out that Ziepfel is not "binding" on this court. This is
true. However, in this case, "persuasive" is sufficient. Given the
fact that Ziepfel upheld a much greater forfeiture under similar
circumstances, and given the fact that Hillman has presented nothing
to suggest that his case is "one of those rare situations" where the
Constitution bars the government from enforcing the penalty
specified by law for his offense, we reject Hillman's contention
that his case must be remanded to the trial court for a special
Eighth Amendment hearing. Our ruling is the same regarding
Hillman's state constitutional claim.
Hillman's remaining argument is that the amount of his
forfeiture ($8000) exceeds the maximum monetary penalty for his
offense. Hillman relies on AS 12.55.035(b)(3), which declares that
a defendant convicted of a class A misdemeanor "may be sentenced to
pay ... a fine of no more than ... $5000". Because Hillman has
suffered a forfeiture of property worth $8000 (and has additionally
been ordered to pay an unsuspended fine of $1500), he argues that
his total monetary penalty exceeds the $5000 ceiling set by
AS 12.55.035(b).
Hillman's argument is premised on two assumptions. First,
Hillman assumes that AS 12.55.035 limits not only the penalties that
can be imposed for violation of state statutes but also the
penalties that municipalities can impose for violation of their own
ordinances. Second, Hillman assumes that AS 12.55.035 governs (and
limits) forfeitures as well as fines.
Even taking Hillman's first assumption to be true (that
is, even assuming that AS 12.55.035 governs the penalties for
violation of municipal ordinances), we reject Hillman's contention
that AS 12.55.035 limits forfeitures. There is nothing in the
statutory language to indicate this, and Hillman cites no
legislative history or case authority to support his contention that
the legislature used the word "fine" to mean both "fine" and
"forfeiture". [Fn. 5] We therefore reject Hillman's contention that
AS 12.55.035(b) sets a $5000 limit on vehicle forfeitures imposed
as a penalty for driving while intoxicated.
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
Both provisions contain identical wording: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted."
Footnote 2:
Paradoxically, the Municipality urges us to treat Hillman's
appeal as a petition for review and to reach the merits of Hillman's
contentions. If, as the Municipality asserts, this court has no
jurisdiction "to review" the district court's decision, then this
jurisdictional limitation would seem to encompass both forms of
appellate review appeals and petitions.
Footnote 3:
In Galaktionoff v. State, 486 P.2d 919, 920 n.3 (Alaska
1971), the supreme court noted this omission. The court never-
theless ruled that, by virtue of the clause in AS 22.05.010(a)
giving the court "final appellate jurisdiction in all actions and
proceedings", the court had the authority to review decisions of the
superior court in district court sentence appeals.
Footnote 4:
The Sixth Circuit's opinion in 11869 Westshore Drive contains
a lengthy discussion of the case law in this area. 70 F.3d at 927-
930. From that discussion, it appears that the federal circuits are
split on the question of whether the concept of proportionality
applies to in rem forfeitures. Moreover, among the federal circuits
that do require proportionality of in rem forfeitures, the circuits
use differing criteria to assess that proportionality.
Footnote 5:
We note that state law provides for forfeiture of a repeat
drunk driver's motor vehicle or aircraft. See AS 28.35.036. Motor
vehicles and aircraft often are worth far more than $5000. If the
legislature had intended to limit these forfeitures to $5000, it
seems likely that the legislature would have included language
expressly and clearly establishing such a limitation.
