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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7028
Appellant, ) Trial Court No. 4FA-S97-3812CR
)
v. )
)
WENDELL OTNESS, )
)
Appellee. )
________________________________)
)
STATE OF ALASKA, )
) Court of Appeals No. A-7037
Appellant, ) Trial Court No. 4FA-S98-657CR
)
v. )
)
ROBERT ELMORE, )
)
Appellee. )
________________________________)
)
STATE OF ALASKA, )
) Court of Appeals No. A-7038
Appellant, ) Trial Court No. 4DJ-S98-38CR
)
v. ) O P I N I O N
)
NEIL F. SCHENK, )
)
Appellee. ) [No. 1644 - August 13, 1999]
________________________________)
Appeal from the District Court, Fourth Judicial District,
Fairbanks, Jane A. Kauvar, Judge.
Appearances: James L. Hanley, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant. Robert B. Downes, Downes, MacDonald & Levengood,
P.C., Fairbanks, for Appellee Otness. William R. Satterberg, Jr., Law Offices of William
R. Satterberg, Jr., Fairbanks, for Appellees Elmore and Schenk.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
COATS, Chief Judge, dissenting.
When the legislature passed the Alaska Sex Offender
Registration Act (ASORA), [Fn. 1] the legislature authorized the
Department of Public Safety to adopt regulations implementing that
act. [Fn. 2] Among the regulations adopted by the Department is a
definition of "conviction" requiring registration of any person
convicted of a sex offense even if the conviction was set aside
after he or she successfully completed probation from a suspended
imposition of sentence (SIS). [Fn. 3] Wendell Otness, Robert
Elmore, and Neil F. Schenk all had their sex-offense convictions set
aside after completing SIS probation. [Fn. 4] Because they did not
register, the State charged each defendant with second-degree
failure to register as a sex offender. [Fn. 5]
District Court Judge Jane F. Kauvar granted each
defendant's motion to dismiss. Judge Kauvar ruled that the
Department of Public Safety had no authority to define conviction
to include those convictions that had been set aside. We conclude
that the regulation is proper and that Otness, Elmore, and Schenk
are obliged to register as sex offenders.
Facts and proceedings
None of the appellees registered as sex offenders. The
State charged each defendant in district court for failing to
register as a sex offender. Each defendant moved to dismiss on
various grounds. Apparently rejecting all grounds except the
defendants' claim that they were not sex offenders within the
meaning of ASORA, Judge Kauvar dismissed each defendant's case. The
State appealed. We consolidated these cases for appeal.
Discussion
Each defendant was convicted of a sex offense as defined
in AS 12.63.100. ASORA requires that any person convicted of a sex
offense must register at the local police station or the state
trooper post nearest to the offender's residence. [Fn. 6] Although
ASORA contained no explicit definition of "conviction," the
legislature authorized the Department of Public Safety to promulgate
regulations implementing the act.
The Department adopted a regulation that interpreted
"conviction" for purposes of ASORA. That regulation, 13 AAC
09.900(a)(2), provides:
(a) In this chapter and AS 12.63, unless
the context requires otherwise,
. . .
(2) "conviction" means that an adult, or
a juvenile tried as an adult under AS 47.10 or
a similar procedure in another jurisdiction, has entered a plea of
guilty or no contest to, or has been found guilty by a court or jury
of, a criminal offense, whether or not the judgment was thereafter
set aside under AS 12.55.085 (emphasis added)[.]
The appellees argue that this regulation is contrary to
the legislature's intent when it adopted ASORA. Because of the
potential criminal consequences for failing to register, the
appellees argue that ASORA must be strictly construed in their
favor. Applying that construction, they claim that the Department's
definition of "conviction" violates strict construction because
ASORA is ambiguous as to whether they were meant to be included in
the regulatory scheme. We note, initially, that a party challenging
a regulation bears the burden of showing the regulation's
invalidity. [Fn. 7]
Under well-recognized principles of administrative law,
regulations promulgated by an administrative agency under specific
statutory authorization are presumed valid and will be upheld if
they are "consistent with and reasonably necessary to implement the
statutes authorizing [their] adoption." [Fn. 8] Here, the
Department was authorized to adopt regulations to implement the
purposes of ASORA. [Fn. 9] Under that authority, the Department
defined "conviction" to include a conviction that had been set aside
after the completion of a suspended imposition of sentence.
We must respect the regulations adopted by the Department,
and must not overrule its construction of the statute "except for
weighty reasons." [Fn. 10] When we review a regulation adopted
pursuant to statutory authority, we review that regulation for
consistency with the authorizing statute. [Fn. 11]
As is apparent from the legislature's findings, the
legislature had an obvious concern for public safety when it enacted
ASORA. [Fn. 12] The legislature decided that the high rate of
recidivism among convicted sex offenders justified the registration
and notification programs that allowed the public to obtain
information about the members of that group. When the Department
adopted regulations to implement the act, it decided to require the
registration of those persons who had been convicted of a sex
offense, had received a suspended imposition of sentence, had
completed probation and had their convictions set aside.
Under the standard of review we must apply when reviewing
an administrative regulation, we conclude that the definition of
"conviction" adopted by the Department is consistent with the
legislative purpose to protect the public. The definition requires
those individuals convicted of a sex offense to register with the
Department even if the conviction was set aside. The Department's
conclusion that persons whose conviction had been set aside should
have the duty to register is a reasonable construction consistent
with the purposes and policies of ASORA.
The appellees argue that this definition is inconsistent
with a requirement of "strict construction." Even if the Department
was required to employ strict construction of ASORA when it adopted
regulations, we observed in Mack v. State:
[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. [Fn. 13]
When it adopted regulations, the Department was not required to
employ strict construction, but to adopt regulations that are
consistent with the purposes of the legislation. [Fn. 14] Even if
strict construction was required, it would not require the narrowest
interpretation of ASORA. We conclude that the appellees did not
meet the burden of showing that the regulation adopted by the
Department was inconsistent with ASORA.
Therefore, we conclude that Judge Kauvar erred when she
dismissed these cases.
Conclusion
The order dismissing each defendant's cas e is REVERSED.
The cases are REMANDED for further proceedings on the charge of
failing to register as a sex offender.
MANNHEIMER, Judge, concurring.
I concur in the decision reached by Judge Stewart, and
I write separately to clarify my view of the issues involved in this
case.
Although the parties' briefs and Judge Stewart's opinion
discuss the doctrine of "strict construction" (the doctrine that
ambiguous penal statutes shall be construed against the government),
this case does not involve that doctrine because there is no
ambiguity in the statutes and regulations at issue in this case.
AS 12.63.010(a) states that "[a] sex offender ... who is
physically present in [this] state shall register as provided in
this section." AS 12.63.100(4) defines "sex offender" as "a person
convicted of a sex offense ... in this state or another jurisdiction
regardless [of the date of the offense]."
One question is not directly answered by these statutes:
What does it mean when the statutes refer to a person "convicted"
of a sex offense? Specifically, does this term include defendants
who were convicted of a sex offense but who received a suspended
imposition of sentence and who later successfully completed their
probation and had their conviction set aside under AS 12.55.085(e)?
Although the statutes do not answer this question, 13 AAC 09.-
900(a)(2) clearly does. This regulation, promulgated by the
Department of Public Safety, unambiguously declares that
"conviction" includes a criminal judgement that has been set aside
under AS 12.55.085.
Because there is no ambiguity, there is no need to invoke
the doctrine of "strict construction". The question, instead,
involves the scope of authority that the legislature vested in the
Department of Public Safety.
In AS 18.65.087(a), the legislature authorized and
directed the Department of Public Safety to "maintain a central
registry of sex offenders". This same statute also authorized the
Department to "adopt regulations necessary to carry out the purposes
of ... AS 12.63." The question presented in this appeal is whether
13 AAC 09.900(a)(2) the regulation defining "conviction" falls
within the scope of this legislative authorization. Can 13 AAC
09.900(a)(2) be deemed "necessary to carry out the purposes of ...
AS 12.63"?
This court has recognized that the term "convicted" can
have different meanings, depending on the context. [Fn. 1] For some
purposes, defendants are deemed "convicted" when a jury or a judge
finds them guilty. [Fn. 2] For other purposes, defendants are not
"convicted" until the court formally enters judgement against them
following the sentencing hearing. [Fn. 3]
These distinctions ultimately are based on legislative
policy. If the legislature has provided the pertinent definition,
then a court will apply this definition. If the legislature has
left the term undefined, then a court will arrive at the applicable
definition based on legislative intent and the rules of statutory
construction. [Fn. 4]
The defendants do not seriously dispute the Alaska
Legislature's authority to define "conviction" to include set-aside
convictions. But in this case the definition was enacted, not by
the legislature, but by the Department of Public Safety. The
question, then, is whether the legislature authorized the Department
of Public Safety to make this sort of policy decision.
As explained above, AS 18.65.087(a) authorizes the
Department to promulgate regulations "necessary to carry out the
purposes" of the sex offender registration act. By this grant of
authority, the legislature empowered the Department to issue
regulations that clarify the reach or the scope of the underlying
legislation. The resulting regulations are valid even though they
arguably extend or restrict the coverage of the sex offender
registration act.
The Alaska Supreme Court addressed a similar legal problem
in Alaska Department of Revenue v. Cosio. [Fn. 5] The legislature
has authorized the Department of Revenue to "adopt regulations ...
for determining the eligibility of individuals for permanent fund
dividends." [Fn. 6] The question in Cosio was whether the
Department of Revenue could lawfully promulgate a regulation that
"exclud[es] ... applicants who arguably fall within the statutory
definition of eligible applicants." [Fn. 7] The supreme court ruled
that the Department did have this authority, so long as the
regulatory "exclusion ... [is] consistent with the statutory
purpose" and so long as the exclusion is "reasonable and not
arbitrary". [Fn. 8]
In the present case, the purpose of the sexual offender
registration act is to protect the public by alerting them to the
presence of persons who have been convicted of sex offenses. The
Department of Public Safety has determined that the legislature's
purpose will be advanced if the term "convicted" is defined to
include defendants who received suspended impositions of sentence
and whose convictions were later set aside. The Department's
decision is "consistent with the statutory purpose", and it is a
reasonable policy choice. This court must therefore uphold the
challenged regulation.
COATS, Chief Judge, Dissenting.
The Alaska Sex Offender Registration Act requires sex
offenders who are physically present in the state to register. [Fn.
1] The statute defines a "sex offender" as "a person convicted of
a sex offense . . . in this state or another jurisdiction
regardless [of the date of the offense]." [Fn. 2] The statute does
not define what "convicted" means. Although generally it is clear
whether someone has previously been convicted of an offense, there
are situations where the term "convicted" is ambiguous. Under AS
12.55.085 the legislature has provided that the court can place a
person on probation without imposing sentence. At the end of the
probationary period, the court may set aside the conviction. We
have previously held that a conviction so set aside does not
constitute a conviction for purposes of presumptive sentencing.
[Fn. 3] Therefore, a person who has successfully completed his
probation under a suspended imposition of sentence and had his
conviction set aside has a substantial argument that he has not
been convicted.
The promise of a suspended imposition of sentence
provides a substantial incentive and potential reward for a
defendant facing prosecution on a criminal charge. If he can
complete his probation, his conviction can be set aside. As a
consequence, many defendants have entered into plea bargains in
order to have the opportunity to have their convictions set aside.
Judges use the suspended imposition of sentence as an incentive.
If the defendant does not complete his probation, he can
potentially be sentenced up to the maximum for the offense. On the
other hand, if he successfully completes his probation, his
conviction can be removed from his record. Thus, it is reasonable
to infer that the appellees in this case placed substantial
reliance on the fact that since they received a suspended
imposition of sentence, it could be removed from their record.
They successfully completed their probation and had their
convictions set aside. At that time, they could reasonably
conclude that their criminal conviction was part of their past, and
that, if they continued to be law abiding citizens, they had a good
chance of not suffering any disabilities because of this prior
prosecution.
The Sex Offender Registration Act imposes substantial
obligations and risks on those who are required to register. A
major purpose of registration is to inform the public of the
identity and address of any person who has been convicted as a sex
offender so that members of the public can protect themselves from
offenders presumed dangerous. It is obvious that this exposure
could result in substantial adverse consequences to a convicted sex
offender's privacy, employment and personal safety. Therefore, it
is reasonable to assume that a defendant faced with prosecution for
a crime which would require him to register as a sex offender would
take this into account in defending the criminal case. Since the
appellees in this case qualified for, and successfully completed a
suspended imposition of sentence, it is reasonable to infer that
their offenses were relatively minor. Had they been considered
more serious offenders, they would have received more severe
punishment. This kind of offender, had he been aware of the Sex
Offender Registration Act, could very well have negotiated to plead
to an offense that would not require him to register. A current
example of this kind of disposition is Whitehead v. State, where
the defendant entered a plea to an assault charge rather than a
sexual assault charge. [Fn. 4] It seems obvious that a major
factor in the plea was the defendant's desire to avoid the Sex
Offender Registration Act. The appellees in this case had no such
choice since the Act was not even in existence at the time they
entered their pleas.
The legislature has provided that a defendant who enters
a guilty or no contest plea to an offense where registration under
the Sex Offender Registration Act is required must be informed of
that fact. [Fn. 5] This tends to illustrate the legislature's
under-standing of the significant impact which the Sex Offender
Registration Act can have on a person who is required to register.
Recently, in Peterson v. State, we held that where a defendant was
unaware of his duty to register, he must be allowed to withdraw his
plea. [Fn. 6] We have recently upheld the Sex Offender
Registration Act against various constitutional challenges. [Fn. 7]
Although we upheld the statute, it is obvious that the Act
significantly impacts those required to register. We concluded,
based on the great weight of authority, that the legislature had
the authority to determine that requiring convicted sex offenders
to register and publicize their identity was necessary for public
protection. But given the substantial impact of the Sex Offender
Registration Act on a person who is required to register, it seems
to me that the Sex Offender Registration Act, like a criminal
statute, should be narrowly read and strictly construed against the
government. [Fn. 8] As I have previously pointed out, it
is questionable whether the legislature intended to have defendants
register who successfully completed a suspended imposition of
sentence and had their conviction removed from their record.
The majority attempts to get around this statutory ambiguity
by defining the problem as a matter of administrative law. The
majority relies on AS 18.65.087(a) where the legislature directed
the Department of Public Safety to "maintain a central registry of
sex offenders." The legislature also gave the Department the
authority to "adopt regulations necessary to carry out the purposes
of . . . [the Sex Offender Registration Act]." [Fn. 9] The
Department of Public Safety has passed a regulation which defines
a conviction to include a suspended imposition of sentence, even if
the judgment was set aside. [Fn. 10]
Given the substantial constitutional questions raised by
the Sex Offender Registration Act, and the significant impact of
the Act on a person who is required to register, I do not believe
that this ambiguous delegation of authority to the Department of
Public Safety is sufficient. [Fn. 11] In order to carry out the
Sex Offender Registration Act, the legislature needed to give the
Department of Public Safety the power to adopt regulations. But
there is no indication that the legislature intended to allow the
Department of Public Safety to define who would be required to
register. Given the important constitutional questions raised by
the Sex Offender Registration Act, it seems to me that the
legislature must determine who is required to register, or at
least, that the legislature must make it clear that it intended to
delegate this responsibility to the Department of Public Safety.
Since I have substantial questions whether the legislature intended
to require the appellees to register, I would hold that the law, as
it is currently written, does not require them to do so.
FOOTNOTES
Footnote 1:
AS 12.63.010-.100, AS 18.65.087.
Footnote 2:
See AS 18.65.087(a).
Footnote 3:
See 13 Alaska Administrative Code (AAC) 09.900(a)(2).
Footnote 4:
See AS 12.55.085.
Footnote 5:
See AS 11.56.840.
Footnote 6:
See AS 12.63.010(a) & (b).
Footnote 7:
See State, Dep't of Revenue v. OSG Bulk Ships, Inc., 961 P.2d
399, 407 (Alaska 1998); Anchorage Sch. Dist. v. Hale, 857 P.2d
1186, 1188 (Alaska 1993).
Footnote 8:
State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531
(Alaska 1997) (citation omitted).
Footnote 9:
See AS 18.65.087(a).
Footnote 10:
Whaley v. State, 438 P.2d 718, 722 (Alaska 1968).
Footnote 11:
See Renwick, 936 P.2d at 531-32; State, Dep't of Revenue v.
Cosio, 858 P.2d 621, 624 n.1 (Alaska 1993).
Footnote 12:
The legislature found:
(1) sex offenders pose a high risk of
reoffending after release from custody;
(2) protecting the public from sex offenders
is a primary governmental interest;
(3) the privacy interests of persons
convicted of sex offenses are less important than the government's
interest in public safety; and
(4) release of certain information about sex
offenders to public agencies and the general public will assist in
protecting the public safety.
Ch. 41, sec. 1, SLA 1994.
Footnote 13:
900 P.2d 1202, 1205 (Alaska App. 1995) (quoting Belarde v.
Anchorage, 634 P.2d 567, 568 (Alaska App. 1981)) (citations
omitted).
Footnote 14:
See Renwick, 936 P.2d at 531-32.
FOOTNOTES (Concurrence)
Footnote 1:
See Larson v. State, 688 P.2d 592, 597-98 (Alaska App. 1984);
Kelly v. State, 663 P.2d 967, 971 (Alaska App. 1983).
Footnote 2:
See Alaska Bar Rule 26(l).
Footnote 3:
See Wells v. State, 706 P.2d 711, 715 (Alaska App. 1985)
(holding that, for purposes of construing the penalty-enhancing
provision of AS 12.55.025(e) (requiring consecutive sentences), a
person is "previous[ly] ... convict[ed]" only when their crime was
committed after the entry of judgement from their prior crime).
Footnote 4:
See, e.g., Tulowetzke v. Dept. of Public Safety, Div. of Motor
Vehicles, 743 P.2d 368, 370-71 (Alaska 1987); Mancini v. State, 904
P.2d 430, 432-33 (Alaska App. 1995) (the legal meaning or the legal
effect of a "conviction" is a question of policy, and it is to be
decided by construing the pertinent Alaska statutes).
Footnote 5:
858 P.2d 621 (Alaska 1993).
Footnote 6:
See AS 43.23.015(a).
Footnote 7:
Cosio, 858 P.2d at 625.
Footnote 8:
Id. (citation omitted). For a recent affirmation of Cosio,
see Church v. Alaska Department of Revenue, Opinion No. 5079
(Alaska, February 12, 1999) (upholding a regulation restricting
"allowable absences" for purposes of determining a person's
eligibility for the Permanent Fund dividend).
FOOTNOTES (Dissent)
Footnote 1:
AS 12.63.010(a).
Footnote 2:
AS 12.63.100(4).
Footnote 3:
See Larson v. State, 688 P.2d 592, 597 (Alaska App. 1984).
Footnote 4:
See Whitehead v. State, ___ P.2d ___, Op. No. 1642 (Alaska
App., July 30, 1999).
Footnote 5:
See Alaska R. Crim. P. 11(c)(4).
Footnote 6:
See Peterson v. State, ____ P.2d ____, Op. No. 1640 (Alaska
App., July 23, 1999).
Footnote 7:
See Patterson v. State, ____ P.2d ____, Op. No. 1641 (Alaska
App., July 23, 1999).
Footnote 8:
See State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985).
Footnote 9:
AS 18.65.087(a).
Footnote 10:
13 AAC 09.900(a)(2).
Footnote 11:
See Mistretta v. United States, 488 U.S. 361, 373 n.7
(1989) (reviewing courts give "narrow constructions to statutory
delegations that might otherwise be thought to be
unconstitutional").
