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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH W. PETERS, )
) Court of Appeals No. A-6323
Appellant, ) Trial Court No. 3AN-S96-2792CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1542 - August 1, 1997]
______________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Natalie Finn,
Judge.
Appearances: Rex Lamont Butler, Rex Lamont
Butler & Associates, Anchorage, for
Appellant. Donald R. Kitchen, Assistant
District Attorney, Kenneth J. Goldman,
District Attorney, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Mannheimer, Judge, Andrews, Superior
Court Judge, and Joannides, District Court
Judge.* [Coats, Chief Judge, not
participating.]
JOANNIDES, Judge.**
Joseph W. Peters pleaded no contest to two counts of
the class A misdemeanor of contributing to the delinquency of a
minor, AS 11.51.130(a)(1).1 The two counts charged that Peters
had contributed to the delinquency of fifteen-year-old E.F. and
fourteen-year-old C.M. by aiding, inducing, causing or
encouraging them to engage in sexual contact.2
The district court, Judge Natalie K. Finn, sentenced
Peters to consecutive terms of 360 days= imprisonment with 240
days suspended, for a composite sentence of two years with
sixteen months suspended. Peters appeals his sentence, arguing
that the sentence is excessive, and that the court erred in
considering aggravating circumstances without giving him notice
of the court=s intent to do so.
The state argues that this court does not have
jurisdiction to hear Peters= sentence appeal because Peters was
not sentenced to serve more than 120 days on any single count.
In 1995 the Alaska legislature amended AS 22.07.020,
the statute establishing this court=s appellate jurisdiction, to
restrict this court=s sentence appeal jurisdiction to cases in
which a felony sentence exceeds two years to serve or a
misdemeanor sentence exceeds 120 days to serve. Alaska Statute
22.07.020 now provides in relevant part:
(b) Except as limited in AS 12.55.120,
the court of appeals has jurisdiction to hear
appeals of unsuspended sentences of imprison
ment exceeding two years for a felony offense
or 120 days for a misdemeanor offense imposed
by the superior court on the grounds that the
sentence is excessive . . . .
(c) The court of appeals has juris
diction to review . . . 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.
Shortly after the legislature amended AS 22.07.020, the Alaska
Supreme Court amended Appellate Rule 215 to correspond to the new
statutory limits on this court=s sentence appeal jurisdiction.3
Paragraph (a)(1) of Rule 215 now provides:
Right to Appeal. A defendant may appeal an
unsuspended sentence of imprisonment that
exceeds two years for a felony offense or 120
days for a misdemeanor offense on the ground
that the sentence is excessive.
As the state reads these provisions, it is the sentence on each
individual count, rather than the composite sentence, that must
exceed 120 days in order for the defendant to have the right to
appeal a misdemeanor sentence.
Peters argues that both AS 22.07.020 and Appellate Rule
215 are ambiguous as to whether it is the composite sentence or
the individual sentences on each count that must exceed 120 days.
He asks us to resolve this ambiguity in his favor by holding that
he has the right to appeal his sentence because his composite
term to serve on the two counts exceeds 120 days to serve. As
Peters correctly points out, ambiguities in penal statutes are
generally construed against the state and in favor of the
defendant. See, e.g., Brookins v. State, 600 P.2d 12, 17 (Alaska
1979); State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App. 1983);
Cassell v. State, 645 P.2d 219, 222 (Alaska App. 1982).
We agree with Peters that AS 22.07.020 and Appellate
Rule 215 are ambiguous. However, analysis of the statutory
scheme as a whole resolves the ambiguity in favor of Peters=
position.
"The guiding principle of statutory construction is to
ascertain and implement the intent of the legislature . . . ."
Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992). To that
end, statutes dealing with the same or related subject matter
should be construed "as harmoniously as possible." Borg-Warner
Corp. v. Avco Corp., 850 P.2d 628, 633-34 (Alaska 1993). Such
statutes "should be read together as a whole in order that a
total scheme evolves which maintains the integrity of each act
and avoids ignoring one provision over another." Conner v.
State, 696 P.2d 680, 682 n.3 (Alaska App. 1985). More
specifically, statutes enacted at the same time and dealing with
the same subject matter are deemed to be in pari materia and are
interpreted together. Usibelli Coal Mine v. State, 921 P.2d
1134, 1146 (Alaska 1996); Underwater Const., Inc. v. Shirley, 884
P.2d 150, 155 (Alaska 1994).
The legislature amended AS 22.07.020 to reflect the new
jurisdictional limits of 120 days for misdemeanor sentences and
two years for felony sentences in chapter 79 '' 11-12 SLA 1995.
With sections 7 and 8 of chapter 79, SLA 1995, the legislature
simultaneously amended AS 12.55.120, the provision in the Code of
Criminal Procedure for appeals of sentences in criminal cases.
In AS 22.07.020(b) the legislature specifically refers to AS
12.55.120, and indicates that the two statutes are to be read
together.
Unlike Rule 215 and AS 22.07.020, AS 12.55.120 is not
ambiguous; it plainly states that a defendant has the right to
appeal a composite sentence exceeding 120 days to serve:
(a) A sentence of imprisonment lawfully
imposed by the superior court for a term or
for aggregate terms exceeding two years of
unsuspended incarceration for a felony
offense or exceeding 120 days for a
misdemeanor offense may be appealed to the
court of appeals by the defendant on the
ground that the sentence is excessive . . . .
. . . .
(d) A sentence of imprisonment lawfully
imposed by the district court for a term or
for aggregate terms exceeding 120 days of
unsuspended incarceration may be appealed to
the superior court by the defendant on the
ground that the sentence is excessive . . . .
Reading AS 12.55.120 and AS 22.07.020 together, it is clear that
the legislature intended to allow a defendant to appeal a
misdemeanor sentence if the aggregate terms imposed exceed 120
days to serve.
Just as AS 22.07.020 and 12.55.120 should be read
together and interpreted harmoniously, Appellate Rule 215(a)(1)
should also be interpreted so as to be consistent with these
statutes. Although Appellate Rule 215(a) has a history of
inconsistency with the statutory limits on sentence appeals, the
supreme court appears to have designed the current version of
Rule 215(a)(1) to conform to the legislature=s 1995 amendments to
AS 12.55.120 and AS 22.07.020. The statutory amendments were
enacted in 1995, taking effect July 1, 1995. The supreme court
issued SCO 1226 amending Appellate Rule 215 in January of 1996.
With this amendment the court abandoned the 45-day sentence
appeal limit to which it had adhered since 1976, and adopted
limits on the defendant=s sentence appeal of right that
correspond exactly to the newly enacted limits on the court of
appeals= sentence appeal jurisdiction. Any ambiguity in
Appellate Rule 215(a)(1) as amended should therefore be
interpreted in favor of harmony with the new AS 12.55.120 and the
new AS 22.07.020.
Alaska Statutes 12.55.120, AS 22.07.020, and Appellate
Rule 215(a) are all reconciled if the ambiguity of the latter
statute and the rule as to whether individual or aggregate
sentences are to be measured is resolved to conform to the
unambiguous reference to aggregate terms in AS 12.55.120.
We therefore hold that the defendant may appeal a
misdemeanor sentence to this court if the aggregate unsuspended
terms imposed on all counts exceed 120 days. This court has
jurisdiction to hear Peters= appeal of his composite sentence.
Peters argues that his sentence is excessive because he
has no prior criminal convictions, and he argues that his
offenses were mitigated because the victims had lied to him about
their ages.4
The sentencing court did not accept Peters=
characterization of his offenses as mitigated. The court found
instead that Peters= conduct was among the most serious conduct
within the definition of contributing to the delinquency of
minors, and that a substantial sentence was necessary to deter
Peters and others from giving alcohol to minors and then having
sexual contact with them. The sentencing court has discretion to
determine the weight and priority to be accorded to the various
sentencing goals, and the court did not abuse that discretion in
emphasizing specific and general deterrence in this case. See
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); Ting v.
Anchorage, 929 P.2d 673, 675 (Alaska App. 1997). Having
independently reviewed the sentencing record, we conclude that
Peters= sentence is not clearly mistaken. McClain v. State, 519
P.2d 811, 813-14 (Alaska 1974).5
Peters raises an additional point related to his
sentencing. He argues that in determining his sentence, Judge
Finn erred in finding "aggravating circumstances" without giving
him prior notice of the court=s intent to consider such
aggravating circumstances. Peters points to the court=s finding
that giving alcohol to a minor and then having sexual relations
with the child is a particularly serious way of contributing to
the delinquency of a minor.
Peters did not object at the sentencing hearing to the
lack of notice that the court would consider aggravating
circumstances. He must therefore establish plain error in order
to obtain relief on appeal. Collins v. State, 816 P.2d 1383,
1385 (Alaska App. 1991).
To establish plain error, a litigant must "show that
the rule of law he relies upon in the appellate court should have
been obvious to the trial court [and] establish that the
application of that rule of law to the facts of his case was so
obvious that it should have been noticed by the trial court sua
sponte." Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983).
Peters makes no attempt to show that his claim rests on an
established rule of law that should have been obvious to the
district court. Instead, he asks this court to adopt a new rule
of law.
We have heretofore required the sentencing court to
give notice to the defendant of the court=s intent to sua sponte
consider statutory aggravating factors only in cases in which the
court=s sentence may turn upon the finding of such factors.
Statutory aggravating factors are applicable only in felony
sentencings. In a felony case subject to presumptive sentencing
the sentencing court may not exceed the presumptive term unless
the court finds one or more factors in aggravation. AS
12.55.125, AS 12.55.155. When sentencing a first-time felony
offender in a case in which no presumptive term applies, the
court may not impose a term to serve that exceeds the presumptive
term for a second offender unless the court finds either a
statutory aggravating factor or extraordinary circumstances that
would warrant referral to a three-judge panel. AS 12.55.125(k).
In Hartley v. State, 653 P.2d 1052, 1055-56 (Alaska App. 1982),
we held that in presumptive sentencing cases, the sentencing
court had the authority to consider sua sponte statutory
aggravating and mitigating factors, but that before doing so the
court had to give the parties advance notice and an opportunity
to present evidence regarding the factors. In Wylie v. State,
797 P.2d 651, 662 (Alaska App. 1990), and Collins v. State, 816
P.2d at 1385, we extended the Hartley rule to non-presumptive
sentencings of first-time felony offenders, in which the court
intends to consider aggravating factors for the purpose of
imposing a term exceeding the presumptive term for a second
offender.
In misdemeanor cases there are no presumptive
sentences. There is no misdemeanor sentence for which the
finding of statutory aggravating factors is a condition
precedent. In this case the sentencing court did not profess to
find any statutory aggravating factors. The court simply
examined and assessed all of the facts and circumstances of
Peters= case. Such a process is to be expected in any sentencing
proceeding. Peters has not established that the district court
committed plain error in failing to give him advance notice of
the court=s intent to consider whether Peters contributed to the
delinquency of minors in an unusually serious way.
The judgment of the district court is AFFIRMED.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
** Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 AS 11.51.130(a)(1) provides in relevant part:
(a) A person commits the crime of
contributing to the delinquency of a minor
if, being 19 years of age or older . . . the
person aids, induces, causes or encourages a
child
(1) under 18 years of age to do any act
prohibited by state law . . . .
2 Aiding or inducing a minor to engage in sexual contact
with an adult constitutes the offense of contributing to the
delinquency of a minor, even though the minor could not be
prosecuted for the act of sexual contact. Sullivan v. State, 766
P.2d 51 (Alaska App. 1988).
3 With SCO 1226, the supreme court amended paragraph
(a)(1) of Appellate Rule 215 to conform with AS 22.07.020, while
contemporaneously amending paragraph (a)(2) to provide that a
defendant may seek discretionary review in the supreme court of a
sentence of any shorter length.
4 Peters was originally indicted on two counts of sexual
abuse of a minor in the second degree for engaging in sexual
penetration of E.F. and C.M. After obtaining the indictment, the
prosecutor learned that E.F. and C.M. had lied to Peters about
their ages, telling him that they were sixteen and seventeen
years old. Recognizing that it is an affirmative defense to a
charge of sexual abuse of a minor that the defendant reasonably
believed the victim to be over sixteen years of age, AS
11.41.445(b), the parties reached a plea agreement whereby the
felony charges would be dismissed and Peters would plead no
contest to misdemeanor charges of contributing to the delinquency
of a minor.
5 In support of his claim that his sentence is excessive,
Peters contends that even if he had been convicted of the
original charges against him of second-degree sexual abuse of a
minor, he would likely have been sentenced to no more than ninety
days to serve. He argues that the fact that the victims lied to
him about their ages would have so mitigated the sexual abuse
offenses that he would have been entitled to a "probationary"
sentence. However, Peters misreads the case law regarding
sentencing for second-degree sexual abuse of a minor. Even
assuming that Peters would be correct in characterizing his
offenses as extremely mitigated, he would not have been eligible
for a probationary sentence on this record. A probationary
sentence C a sentence involving less than ninety days of
unsuspended incarceration C is appropriate for someone convicted
of second-degree sexual abuse of a minor "only when [the]
offender=s conduct is significantly less serious than typical
conduct for the offense and only when the offender=s prospects
for rehabilitation are shown to be significantly better than the
typical first offender=s [prospects]." State v. Jackson, 776
P.2d 320, 327 (Alaska App. 1989). Peters made no showing that
his prospects for rehabilitation were any more favorable than
those of the typical first offender.
