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George v. State (10/8/99) ap-1650

     NOTICE:  The text of this opinion can be corrected
before the opinion is published in the Pacific Reporter.  Readers
are encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:  

              303 K Street, Anchorage, Alaska  99501
                       Fax:  (907) 264-0878
        E-mail:  corrections@appellate.courts.state.ak.us


          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


LOUIS M. GEORGE,           )
                           )            Court of Appeals No. A-6951
               Appellant,  )         Trial Court No. 3AN-S97-3503CR
                           )
          v.               )             O P I N I O N
                           )
STATE OF ALASKA,           )
                           )           [No. 1650 - October 8, 1999]
          Appellee.        )   
                           )

          Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.

          Appearances: James Wendt, Anchorage, for
Appellant.  Marcelle K. McDannel, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.

          Before:  Coats, Chief Judge, and Mannheimer
and Stewart, Judges.

          COATS, Chief Judge.

          Alaska Statute 12.55.085(f)(1) provides that a "court may
not suspend the imposition of a sentence of a person who" commits
certain listed crimes. [Fn. 1]  Robbery in the first degree [Fn. 2]
is one of the crimes which falls within the statutory prohibition. 
Louis George was convicted of conspiracy to commit robbery in the
first degree. [Fn. 3]  At sentencing, Superior Court Judge Larry D.
Card concluded that AS 12.55.085(f)(1) precluded him from granting
George a suspended imposition of sentence (SIS).  George appeals
this decision.  We reverse.
          A few weeks prior to the robbery, George was fired from
his position at the McDonald's restaurant on Huffman Road in
Anchorage.  On May 4, 1997, George returned to the restaurant and
asked the night manager to unlock the door so that he might use the
pay telephone.  Once the door was unlocked, Chevy Miller followed
George through the door, wearing a ski mask and armed with a small
caliber handgun and a crowbar.  Miller then pointed the gun at six
McDonald's employees and ordered them, along with George, into a
back room.  Miller proceeded to rob the store, receiving over $1500
in cash.   In order to facilitate his escape, Miller pepper-sprayed
the employees and George, and then fired a round from his gun into
a freezer, ostensibly as a warning shot. 
          Police later discovered George was involved in the
robbery.  Upon questioning, George told police that Miller had
approached him (prior to his termination) and asked for assistance
in robbing the McDonald's.  George admitted to answering Miller's
questions about the alarm and video tape system, and admitted to
transporting  Miller to the area on the morning of the robbery,
knowing that Miller would rob the store.  George also admitted to
retrieving the backpack which Miller had abandoned after he fled
the store.  George then told police he had hidden Miller's backpack
in the trunk of his own car.  Inside the backpack, the police found
a loaded .22 revolver, with a spent round underneath the hammer,
and the clothes evidently worn by Miller during the robbery.   
          George ultimately pleaded no contest to conspiracy to
commit robbery in the first degree, a class B felony. [Fn. 4] 
Judge Card sentenced George to four years' imprisonment with three
and a half years suspended.   At sentencing, Judge Card stated
George was "the type of person [who] would be eligible for a
suspended [imposition of] sentence, but for the law."  This appeal
followed.
          The state cites Mack v. State [Fn. 5] as authority for
the proposition that AS 12.55.085(f)(1) precludes a court from
imposing an SIS for conspiracy to commit robbery in the first
degree.  Mack is distinguishable.  In Mack, the defendant was
convicted of attempted sexual abuse of a minor in the third degree.
[Fn. 6]  Alaska Statute 12.55.085(f) clearly precluded the court
from imposing an SIS for sexual abuse of a minor in the third
degree and other sex offenses included in AS 11.401.  However, AS
12.55.085(f) did not expressly list an attempt to commit these
listed offenses as crimes for which the legislature had prohibited
an SIS.  We concluded that the legislature had intended to preclude
the courts from imposing a suspended sentence for attempted sex
offenses. [Fn. 7]  We relied on legislative history which
illustrated the legislature clearly intended the prohibition to
"cover the entire range of sex offenses." 
          We also noted that to have held otherwise would have
created "anomalous consequences[.]" [Fn. 8]  For instance, if AS
12.55.085(f)(1) did not preclude a sentencing judge from entering
an SIS for attempted sexual assaults, someone who was convicted of
a more serious crime (e.g. attempted sexual assault in the first
degree) could conceivably be adjudicated more favorably by
receiving an SIS than someone convicted of sexual assault in the
third degree.
          In contrast to Mack, there is no similar legislative
history which would lead to the conclusion that the legislature
intended, by including robbery among the list of offenses where a
court is precluded from entering an SIS, to preclude a court from
imposing an SIS for conspiracy to commit robbery.  The definition
of conspiracy covers an enormous range of conduct. [Fn. 9]  
Because a conspiracy conviction can be based on little active
wrongdoing, we cannot say with certainty that the legislature
intended to bar courts from imposing an SIS when sentencing
defendants convicted of conspiracy.  Where legislative intent is
ambiguous, the rule of lenity must prevail. [Fn. 10]  That rule
requires that ambiguous penal statutes be construed against the
government. [Fn. 11]  Accordingly, we hold that AS 12.55.085(f)(1)
does not preclude a court from granting an SIS to persons convicted
of  conspiracy to commit one of the listed crimes.
          The state points out that under the facts of the case,
George could have been convicted of robbery, either as an
accomplice or a principle.  However, George was not convicted of
robbery.  He was convicted of conspiracy to commit robbery. 
Therefore, as we have previously pointed out, under the statute,
Judge Card has discretion to impose a suspended imposition of
sentence.  The state is certainly free to argue that the facts of
the case do not warrant such a disposition.
          The sentence is REVERSED and REMANDED. 



                            FOOTNOTES


Footnote 1:

      The list includes convictions for AS 11.41.100-11.41.220,
11.41.260-11.41.320, 11.41.410-11.41.530, or AS 11.46.400.  AS
12.55.085(f)(1). 


Footnote 2:

      AS 11.41.500(a)(1).


Footnote 3:

      AS 11.31.120(a) and AS 11.41.500(a)(1).


Footnote 4:

      AS 11.31.120(a) and AS 11.41.500(a)(1).


Footnote 5:

      900 P.2d 1202 (Alaska App. 1995).


Footnote 6:

      See id.


Footnote 7:

      See id. at 1204.


Footnote 8:

      Id.


Footnote 9:

      2 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law sec.
6.5(c)
(1986). 


Footnote 10:

      See State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985)
(ambiguities in criminal statutes must be narrowly read and
construed strictly against the government); 3 Norman J. Singer,
Sutherland Statutory Construction, sec.sec. 59.03, 59.04, 59.06 (5th ed.
1992).


Footnote 11:

      See Andrews, 707 P.2d at 907.