NOTICE: This opinion is subject to formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CLARENCE MORGAN, ) Court of Appeals No. A-6200
) Trial Court Nos. 4BE-95-639,
Appellant, ) 4BE-95-665, & 4BE-91-067 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1543 - August 8, 1997]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Dale O. Curda, Judge.
Appearances: G. Blair McCune, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Eric A. Johnson, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Rabinowitz, Senior Supreme Court Justice.
MANNHEIMER, Judge.
Clarence Morgan appeals his conviction for third-degree
misconduct involving weapons, AS 11.61.200(a). Morgan was convicted
under subsection (a)(10) of the statute, which prohibits a convicted
felon from residing in a dwelling when the felon knows that there
is a concealable firearm in the dwelling, unless a court or the head
of the local law enforcement agency has given the felon written
permission to live there. [Fn. 1]
Morgan argues (under two different legal theories) that
subsection (a)(10) can not be enforced against a person who was
unaware of the statute's existence at the time of the offense.
Morgan also argues that subsection (a)(10) impermissibly infringes
on a felon's constitutional right of free association with family
and friends. Finally, Morgan argues that subsection (a)(10)
violates the right to bear arms recognized by Article I, Section 19
of the Alaska Constitution. As explained in more detail below, we
reject each of Morgan's claims and we therefore affirm his
conviction.
Morgan also appeals the 5-year composite sentence that he
received for (1) the present weapons offense, (2) the revocation of
his probation from a previous felony assault conviction, and (3) a
driving while intoxicated offense that Morgan committed four days
before he was indicted on the weapons offense. For the reasons
explained below, we affirm Morgan's sentence.
In 1991, Morgan was convicted of a felony third-degree
assault. In April 1995, while still on probation from this felony
conviction, Morgan was living in Bethel with his wife and her two
children. On the evening of April 22nd-23rd, Morgan got into an
argument with his wife's son; this argument escalated into violence
when Morgan kicked down the door to his stepson's room. Morgan's
wife told him to leave the home. In response, Morgan went to the
living room, retrieved a handgun that was kept there, and also
picked up ammunition for the pistol. Holding the pistol and the
ammunition, Morgan approached his stepson. The stepson struggled
with Morgan for control of the handgun, and he eventually knocked
the pistol from Morgan's hand.
While this struggle was taking place, Morgan's wife
attempted to call the police. Morgan (having lost control of the
handgun) grabbed the telephone from his wife and broke it. However,
the stepson used another telephone to call 911.
With the police en route, Morgan threw a towel over the
pistol in an apparent attempt to conceal it. However, when the
officers arrived, they spied the pistol and seized it.
Based on this incident, Morgan was indicted for third-
degree weapons misconduct under AS 11.61.200(a)(10) that is,
residing in a dwelling with the knowledge that the dwelling
contained a concealable firearm. As indicated above, the testimony
at Morgan's trial revealed that Morgan actually possessed the
handgun during this episode. Moreover, Morgan's wife and stepson
testified that, although the pistol belonged to the stepson, Morgan
used the pistol regularly and purchased ammunition for it. Morgan
himself admitted at his trial that he had used the pistol.
On appeal, Morgan asserts that AS 11.61.200(a)(10) is such
an obscure provision of law that reasonable people can not be
expected to know of its existence, and that therefore the statute
can not be enforced against felons who are not aware of it. In his
brief, Morgan phrases this argument as a "vagueness" challenge to
the statute apparently because one of the rationales for
prohibiting overly vague statutes is that such statutes fail to give
people adequate notice of what conduct the law requires or
prohibits. But Morgan does not assert that the language of
AS 11.61.200(a)(10) is too imprecise or ambiguous to be understood
by people of ordinary intelligence. Rather, Morgan argues that
AS 11.61.200(a)(10) is a recently enacted statute that is not yet
widely known, and therefore it is unreasonable to expect felons to
obey the statute. Morgan states in his brief:
It might be argued that [the statute is
constitutional because it] requires the state to prove that the
person convicted of the felony knows that there is a [concealable]
firearm in the dwelling ... [and because] the statute ... allows
someone to get permission from a court or local law enforcement
agency [to reside in a dwelling where a handgun is kept]. However,
a person would have to know about the statute first before being
able to take appropriate action to avoid criminal liability. If a
[felon] knows that it is illegal to live in a dwelling where there
is a concealable firearm, he or she can avoid trouble relatively
easily. Similarly, if one knows that one can avoid criminal
liability by going to the local court or police chief and getting
written authorization, that action can be taken. On the other hand,
if a person does not know about this law, there is no reason to
suppose [that] he or she would take the appropriate steps. Because
this statute is so obscure, felons can easily and unwittingly end
up violating the law.
This argument is not a "vagueness" argument. Rather, it
is an "ignorance of the law" argument, and this argument is
inconsistent with both the Alaska statutes and prior decisions of
this court.
AS 11.81.620(a) declares that, unless a criminal statute
clearly specifies otherwise, neither "[k]nowledge ... as to whether
[a person's] conduct constitutes an offense" nor "knowledge ... of
the provision of law defining an offense" is an element of an
offense. More particularly, with respect to the statute prohibiting
felons from possessing concealable firearms, this court has
repeatedly held that a felon commits this offense even when the
felon is unaware of the statute. For example, in Afcan v. State,
711 P.2d 1198, 1199 (Alaska App. 1986), the defendant raised a due
process (lack of notice) challenge to the felon-in-possession
statute under Hentzner v. State, 613 P.2d 821 (Alaska 1980), and
Speidel v. State, 460 P.2d 77 (Alaska 1969). This court rejected
the defendant's Hentzner-Speidel argument and held that the State
need not prove that the felon was aware of the statutory prohibition
on the possession of concealable firearms. See also McCracken v.
State, 743 P.2d 382, 384 (Alaska App. 1987) (declining to overrule
Afcan).
Morgan concedes that Afcan appears to be against him, but
he argues that Afcan is distinguishable: he asserts that the law
forbidding felons from residing in a dwelling that contains a
concealable firearm is far less widely known than the law forbidding
felons from possessing a concealable firearm. Even if we assume for
purposes of argument that many felons are ignorant of AS 11.61.-
200(a)(10), the statute would still be enforceable. It is widely
known that felons are subject to a variety of legal disabilities and
restrictions. It is therefore reasonable to hold felons to a duty
of inquiry concerning these restrictions. For example, in Kinney
v. State, 927 P.2d 1289, 1294 (Alaska App. 1996), we held that, in
light of widespread knowledge that the sale of alcoholic beverages
is regulated, the State could convict a defendant of bootlegging
without proving that the defendant was aware of the statute
prohibiting him from arranging a sale of liquor. Compare Hentzner,
where the supreme court held that a miner who engaged in the
traditional practice of asking people to advance him a "grubstake"
could not be convicted of "wilfully" failing to register this
investment contract without proof that he was at least aware of a
substantial possibility that his activities might be regulated by
the securities laws. Hentzner, 613 P.2d at 825-26, explained in
Kinney, 927 P.2d at 1292-94.
We also note that AS 11.61.200(a)(10), while relatively
new, appears to be a modest statutory extension of the traditional
rule regarding a felon's "constructive possession" of a concealable
firearm. Before the enactment of AS 11.61.200(a)(10), a felon could
be convicted of "possessing" a concealable firearm that was not in
his or her immediate physical possession if the State could
establish that the felon had effective dominion or control over the
firearm. See, for example, Baker v. State, 781 P.2d 1368, 1369
(Alaska App. 1989). One plausible rationale for AS 11.61.200(a)(10)
is the determination that a felon's act of residing in a dwelling,
knowing that a concealable firearm is kept there, should be criminal
because it is sufficiently similar to constructive possession, at
least unless a court or a law enforcement agency has approved the
living arrangement.
For these reasons, we hold that a felon can be convicted
of violating AS 11.61.200(a)(10) even if the felon was unaware of
this provision of law. A sentencing court is, of course, free to
consider a felon's good-faith ignorance of the law when determining
his or her sentence. However, there was no reason for the superior
court to consider this potential theory of extenuation in Morgan's
case, as the evidence showed that Morgan did much more than simply
reside in a dwelling where a concealable firearm was kept. Morgan
constructively possessed the pistol (by exercising dominion or
control over it), he physically possessed the pistol during his
confrontation with his stepson, and he actually used the pistol on
a regular basis.
Morgan argues, in the alternative, that AS 11.61.-
200(a)(10) infringes on his First Amendment right of association
because it prohibits him from living with his family. However,
Morgan's claim is entirely speculative. Morgan does not assert that
his stepson is unwilling to keep the handgun elsewhere. Moreover,
as noted above, AS 11.61.200(a)(10) allows a felon to reside in a
dwelling that contains a concealable firearm if the felon obtains
permission from a court or the local law enforcement agency. Morgan
does not assert that he ever applied for permission to live in the
dwelling despite the presence of the handgun, nor does Morgan assert
that such permission was unreasonably refused.
Morgan next argues that AS 11.61.200(a)(10) infringes on
his right to keep and bear arms, guaranteed by Article I, Section
19 of the Alaska Constitution. However, we recently held that this
provision of the state constitution "was not intended to eliminate
government regulation of people's possession and use of firearms."
Gibson v. State, 930 P.2d 1300, 1301 (Alaska App. 1997). Even
though Article I, Section 19 guarantees the right to keep and bear
arms, "the government retains the authority to enact and enforce
laws prohibiting people from possessing firearms when there is a
significant risk that they will use those firearms in a criminal or
dangerous fashion." Id. Based on our holding in Gibson, we reject
Morgan's contention that AS 11.61.200(a)(10) violates Article I,
Section 19 of the Alaska Constitution.
Having addressed and rejected Morgan's various arguments
that AS 11.61.200(a)(10) is unconstitutional, we now turn to
Morgan's argument that he should have been acquitted under the
doctrine of "mistake of law". Normally, it is no defense to a
criminal charge that the defendant is ignorant of the law governing
his or her conduct, or that the defendant has a mistaken
understanding of that law. Morgan argues, however, that he should
not be held accountable for his violation of AS 11.61.200(a)(10)
because, after he was placed on probation from his 1991 felony
conviction, his probation officer failed to inform him of this
statutory restriction on his place of dwelling.
The Alaska legislature has created a limited "mistake of
law" defense; AS 11.81.420(a) and (b)(1) declare that conduct which
would otherwise constitute an offense is justified when the
defendant reasonably believes that the conduct "is required or
authorized by law or by a judicial decree, judgment, or order".
This court reached a similar result under the common law in Ostrosky
v. State, 704 P.2d 786 (Alaska App. 1985), on remand, 725 P.2d 1087
(Alaska App. 1986). The defendant in Ostrosky had litigated an
issue of law against the State (the constitutionality of the Limited
Entry Act, the State's regulation of commercial fishing), and had
prevailed in the superior court. While the superior court's
decision was on appeal, Ostrosky engaged in commercial fishing in
violation of the Limited Entry Act (the law that the superior court
had ruled unconstitutional), and the State charged him with a
criminal offense. This court held that, under these circumstances,
Ostrosky was entitled to argue that he reasonably and in good faith
relied on the superior court's ruling. Ostrosky, 704 P.2d at 792.
However, we held in Haggren v. State, 829 P.2d 842 (Alaska
App. 1992), that a person is not entitled to rely on a mistaken
statement or interpretation of law received from a police officer.
We noted that even under the Model Penal Code, which contains the
broadest formulation of the "mistake of law" defense,
[t]he defendant must show that he or she relied
on an "official interpretation" provided by "the public officer or
body charged by law with ... enforcement of the law defining the
offense."
Haggren, 829 P.2d at 844 (emphasis in the original). We interpreted
this language to mean that a defendant claiming mistake of law must
assert reliance on
a formal interpretation of the law issued by
the chief enforcement officer or agency; it does not encompass
extemporaneous legal advice or interpretations given by a
subordinate officer.
Id. Thus, "the fact that [a defendant] may have relied on bad legal
advice from [a police officer] does not provide [the defendant] with
a defense to [a criminal] charge." Id.
As noted above, Morgan's claim of mistake of law is based
on the assertion that his probation officer failed to inform him of
the law governing his conduct. This is not a sufficient basis for
a mistake-of-law claim. Under Haggren, even if Morgan's probation
officer had affirmatively told him that it was all right to reside
in a dwelling where a concealable firearm was kept, this would not
be a defense. Morgan's position is even weaker: he does not assert
that his probation officer misled him concerning the law, but only
that the probation officer failed to inform him of the law.
When all is said, Morgan's "mistake of law" claim is
simply a recasting of his argument that he should not be punished
for violating a law that he did not know about. We again reject
this argument, and we uphold Morgan's conviction for third-degree
weapons misconduct. [Fn. 2]
We now turn to Morgan's sentence appeal. Third-degree
weapons misconduct is a class C felony. AS 11.61.200(g). Because
Morgan was a third felony offender, he faced a presumptive term of
3 years' imprisonment for this offense. AS 12.55.125(e)(2). The
State proved several aggravating factors under AS 12.55.155(c);
Morgan proved no mitigating factors under AS 12.55.155(d), and he
did not establish grounds for referring his case to the three-judge
sentencing panel. Under these circumstances, the 3-year presumptive
term was effectively the minimum sentence that the superior court
could impose for Morgan's weapons offense. Superior Court Judge
Dale O. Curda sentenced Morgan to 5 years' imprisonment with 2 years
suspended (3 years to serve).
At the same time, Judge Curda sentenced Morgan to 365
days' imprisonment with 345 days suspended (20 days to serve) for
driving while intoxicated. Morgan committed this driving offense
shortly before he was indicted for weapons misconduct.
Finally, Judge Curda revoked Morgan's probation from his
1991 third-degree assault conviction. (This revocation was based
on three allegations: the weapons misconduct, the driving while
intoxicated, and a misdemeanor assault that Morgan had perpetrated
on his wife in 1994.) The judge sentenced Morgan to serve 2 years'
imprisonment that had previously been suspended for the 1991
assault.
These three sentences were imposed consecutively. Thus,
Morgan received a composite term of 5 years and 20 days to serve.
Morgan argues that his total time to serve is excessive.
He recognizes that he received the minimum time to serve for his
weapons offense, and he does not appeal that sentence. Rather,
Morgan argues that the superior court should not have imposed the
2 years' imprisonment from his 1991 assault conviction.
In his sentencing remarks, Judge Curda noted that Morgan
had a lengthy criminal record, even before the 1991 assault
conviction. The pre-sentence report reveals that Morgan was
adjudicated a delinquent minor for assault and theft. His juvenile
probation was repeatedly revoked for criminal mischief, for
unlawful evasion, and for two burglaries. As an adult (prior to
1991), Morgan was convicted of assault, escape, and numerous moving
traffic violations including a conviction for driving while
intoxicated that was entered only a few months before the incident
in Aniak that led to Morgan's conviction for third-degree assault.
Morgan's 1991 assault conviction involved an episode of
reckless driving in Aniak. Morgan was driving a vehicle that
contained five passengers. He was intoxicated and, even though the
posted speed limit was 25 miles per hour, he was driving at a speed
of approximately 60-80 miles per hour. His wife asked him to slow
down, but he disregarded her entreaty. The vehicle hit an
embankment, flew through the air for about 50 feet, and then rolled
over several times. Four of the passengers had to be medivacked to
Bethel for treatment.
Judge Curda's sentencing remarks show that one of the
judge's primary concerns was Morgan's continued drinking and
Morgan's continued dangerous or reckless behavior when he was drunk.
The judge noted that Morgan's 1995 driving while intoxicated offense
involved yet another aggravated instance of dangerous driving:
Morgan was driving with a blood-alcohol level of twice the legal
limit, and he was traveling at 57 miles per hour near the Bethel
hospital.
Judge Curda found that, even though Morgan had been
convicted of residing in a house where a concealable firearm was
kept, Morgan's conduct was in fact more serious: Morgan took
physical control of the handgun during a domestic dispute; and,
during his confrontation with his stepson, Morgan had the pistol and
its ammunition in his hands, apparently ready to make use of them.
Based on Morgan's criminal history and the circumstances
of his weapons offense, Judge Curda found that Morgan was a "worst
offender" for purposes of the weapons offense a finding that would
have justified imposition of the maximum 5-year term for that
offense alone. (As noted above, Judge Curda imposed only 3 years
to serve for that offense.) And during his sentencing remarks
concerning the revocation of Morgan's probation from the 1991
assault conviction, Judge Curda stated that his sole sentencing goal
was "isolation" an implicit finding that Morgan could not be
deterred from drinking and engaging in life-threatening behavior,
and that the public safety required his incarceration.
Morgan argues that he still has rehabilitative potential
and that a lesser probation revocation sentence would have been
justified. However, Morgan's record is hardly promising, and Judge
Curda could justifiably discount Morgan's optimistic view of his
potential for rehabilitation. Having independently examined the
record, we conclude that Morgan's composite sentence of 5 years (and
20 days) to serve is not clearly mistaken. McClain v. State, 519
P.2d 811, 813-14 (Alaska 1974).
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.61.200(a)(10) states that a felon commits the crime of
misconduct involving weapons in the third degree if he or she
resides in a dwelling knowing that there is a firearm
capable of being concealed on one's person or a prohibited weapon
in the dwelling[,] ... unless the person has written authorization
to live in a dwelling in which there is a concealable weapon
described in this paragraph from a court of competent jurisdiction
or from the head of the law enforcement agency of the community in
which the dwelling is located.
Footnote 2:
Although we reject Morgan's assertion that he should be
excused from his violation of the law, we suggest to the Department
of Corrections that it may be worthwhile to amend the standard
felony probation form to include specific notice of the requirements
of AS 11.61.200(a)(10). We recognize that some felons are never
placed on probation (and thus never receive the probation form);
nevertheless, amending the probation form would help to spread
knowledge of this law among the people affected by it.
