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Brant v. State (11/19/99) ap-1655

     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
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        E-mail:  corrections@appellate.courts.state.ak.us


          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CHARLES L. BRANT,             )
                              )          Court of Appeals No. A-6879
            Appellant,        )       Trial Court No. 4FA-S97-514CR
                              )
          v.                  )      
                              )
STATE OF ALASKA,              )      
                              )
             Appellee.        )
______________________________)
RICHARD ARCHAMBAULT           )
                              )          Court of Appeals No. A-6978
               Appellant,     )      Trial Court No. 4FA-S97-1893CR
                              )
     v.                       )
                              )         O P I N I O N
STATE OF ALASKA,              )
                              )      [No. 1655    November 19, 1999]
               Appellee.      )  
______________________________)                  
     

          Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Dale O. Curda and Niesje J. Steinkruger,
Judges.

          Appearances:  Nelson Traverso, Assistant Public
Advocate, Fairbanks, and Brant McGee, Public Advocate, Anchorage,
for Appellant Charles L. Brant.  Susan Downie, Assistant Public
Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant Richard Archambault.  Eric A. Johnson,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee. 
          Before:  Coats, Chief Judge, and Mannheimer and
Stewart, Judges. 

          STEWART, Judge.
          MANNHEIMER, Judge, concurring.
          COATS, Chief Judge, dissenting.

          The single issue presented in these two consolidated
appeals is whether these two appellants were "convicted of a felony"
for purposes of AS 11.61.200(a)(1) (felon in possession of a
concealable firearm) when they possessed a concealable firearm after
they had been found guilty of a felony but before sentence was
imposed.  We conclude that defendants who have entered a plea or
have been found guilty of a felony at trial are "convicted of a
felony" for purposes of this statute.
          Facts and proceedings
          On February 14, 1995, Charles L. Brant pled no contest to
third-degree assault, a class C felony. [Fn. 1]  On February 23,
1997, a police officer found Brant intoxicated and seated in a car,
with a small pistol on the seat beside him.  Brant had still not
been sentenced on the third-degree assault charge.  The grand jury
indicted Brant on one count of third-degree misconduct involving
weapons for being a felon in possession of a concealable firearm.
[Fn. 2]  Superior Court Judge Dale O. Curda found Brant guilty after
a court trial.  Judge Curda rejected Brant's argument that he had
to be sentenced on the prior third-degree assault felony before he
could be considered "convicted of a felony" under AS 11.61.200(a)(1).
          Richard Archambault pled no contest to a charge of third-
degree assault. [Fn. 3]  Before Archambault was sentenced, an Alaska
State Trooper discovered that Archambault possessed a handgun on
July 3, 1997.  The grand jury indicted Archambault for third-degree
misconduct involving weapons.  Superior Court Judge Niesje J.
Steinkruger rejected Archambault's argument that, because he had not
been sentenced on third-degree assault charge, he was not a felon
in possession.  Archambault was convicted by a jury.  
          Discussion
          This case presents a question of statutory interpretation. 
We review this issue de novo and adopt the rule of law that is most
persuasive in light of precedent, policy, and reason. [Fn. 4]   
          Brant and Archambault were convicted of violating
AS 11.61.200(a)(1).  That statute provides in relevant part that a
"person commits the crime of misconduct involving weapons in the
third degree if the person ...  knowingly possesses a firearm
capable of being concealed on one's person after having been
convicted of a felony[.]" [Fn. 5]  There is no definition of the
phrase "convicted of a felony" or the term "convicted" contained
within Title 11.   
          Alaska courts have not decided if the legislature intended
that defendants who have been found guilty on a felony based on a
plea but have not yet been sentenced are "convicted of a felony." 
In Berg v. State, this court decided a defendant was "convicted of
a felony" under AS 11.61.200(a)(1) when the defendant's sentence for
the prior felony was stayed while the case was on appeal. [Fn. 6] 
Berg argued that "convicted" in that statute could be interpreted
either of  two ways:  first, the ordinary meaning that a defendant
is "convicted" after a finding of guilt by a jury or other
factfinder, or second, a more restrictive and technical meaning,
that a defendant is "convicted" when a final judgment is entered and
the time for appeal has run. [Fn. 7]   Because "convicted" was not
defined in the criminal code, Berg argued that the court should
interpret the term most favorably to criminal defendants and adopt
the more restrictive and technical interpretation.   
          This court rejected Berg's argument for the more
restrictive and technical interpretation.  But the opinion expressed
that decision in broader terms than were necessary to the resolution
of that case.  The opinion stated:  "We hold that a person has been
`convicted of a felony` when the appropriate trier of fact has made
a determination of guilt and sentence has been imposed." [Fn. 8] 
That statement, examined in isolation, seems to control the issue
in this case.  But the issue in this case, whether sentence has to
be imposed before a defendant is "convicted" for purposes of AS
11.61.200(a)(1), was neither raised nor argued in Berg. 
          We now stand at another interpretive crossroads.  Brant
and Archambault urge us to follow the path described by this court's
broad statement in Berg and construe "convicted of a felony" in AS
11.61.200(a)(1) to mean that a defendant must be convicted and
sentenced on the prior felony.  The appellants argue that this
interpretation construes the statute strictly against the
government.  On the other side, the State urges us to follow the
precedent of other jurisdictions that have interpreted felon-in-
possession statutes similar to AS 11.61.200(a)(1).  The State
stresses the public policy of controlling felon's access to
concealable firearms.  The other jurisdictions cited by the State
do not require that a defendant be both convicted and sentenced to
be culpable under their statutes. [Fn. 9]   
          Our courts have recognized the policy underlying felon-in-
possession statutes.  For example in Davis v. State, our supreme
court commented as follows:  "The purpose of the felon in possession
statute is to prevent the concealment and use of firearms in violent
crime." [Fn. 10]  And in McCracken v. State, this court observed
that "the state has a substantial interest in controlling access to
concealable firearms by persons previously convicted of a felony."
[Fn. 11]  The public safety purpose of the statute stems from a
conclusion that a felon's past conduct reflects on the felon's
fitness to possess a concealable firearm.  That past conduct is
proven factually   beyond a reasonable doubt   when a court accepts
a defendant's plea to a felony or when a defendant is convicted of
a felony in a court or a jury trial.  The procedural step of
sentencing does not provide any additional confirmation that a
defendant engaged in conduct that permits classification of the
defendant as a felon. 
          The legislature frequently defines crimes in our criminal
code on the basis of a defendant's criminal history.  In some
crimes, the legislature defines the crime to require not only that
the defendant has been both "convicted," but that the defendant has
been "convicted and sentenced." [Fn. 12]  Thus, the legislature, in
at least those crimes just noted, regarded a defendant's status as
"sentenced" as a separate fact to be proven along with the
defendant's status of  "convicted."  In AS 11.61.200(a)(1), the
legislature only specified that a defendant be "convicted" and did
not require that a defendant also be "sentenced" as an additional
factual element of the crime.  
          In light of the precedent, policy, and reasoning discussed
above, we conclude that the most persuasive interpretation of
"convicted" is the interpretation first raised in Berg, that a
defendant is "convicted of a felony" for purposes of AS
11.61.200(a)(1) when a defendant has been found guilty by a jury or
other factfinder.  We conclude that AS 11.61.200(a)(1) does not
require proof that a defendant has also been sentenced on that
felony conviction.  Therefore, we affirm the judgments of the
superior court.
          Conclusion
          The judgments of the superior court are AFFIRMED.
MANNHEIMER, Judge, concurring.

          I concur in the result reached by Judge Stewart, but I
differ from him in my approach to the question of statutory
interpretation presented in this appeal. 
          Judge Stewart's opinion repeatedly refers to and relies
on the supreme court's statement in Guin v. Ha that, when a court
is required to decide a question of law, the court's "duty is to
adopt the rule of law that is most persuasive in light of
precedent, policy, and reason."  [Fn. 1]  This statement is only
partially true.  
          The statement applies in full measure when a court must
declare the common law. [Fn. 2]  But when a court construes a
statute, the court's task is to ascertain and implement the intent
of the legislature. [Fn. 3]  In accomplishing this task, the
court's primary point of reference is the wording of the statute.
[Fn. 4]  When that wording is unclear or ambiguous, a court may be
assisted by "precedent, policy, and reason"   as well as by the
statute's legislative history and the recognized rules of statutory
construction.  But a court exceeds its authority if it interprets
statutes as it believes the legislature should have meant them.  To
the extent that Judge Stewart's opinion and the passage from Guin
v. Ha suggest otherwise, I respectfully disagree.  
          Turning to the issue presented in this appeal   the
meaning of the phrase "after having been convicted of a felony"
contained in AS 11.61.200(a)(1)   I concur that this phrase
encompasses defendants who have been found guilty but who have not
yet been sentenced.  I reach this conclusion for four reasons. 
          First, I agree with Judge Stewart that, for purposes of
this case, the definition of "convicted of a felony" adopted by
this court in Berg v. State [Fn. 5] is dictum.  
          Second, AS 11.61.200(a)(1) uses the phrase "convicted of
a felony" as part of a longer phrase.  The relevant portion of the
statute reads:  "after having been convicted of a felony or
adjudicated a delinquent minor for conduct that would constitute a
felony if committed by an adult".  Both the Alaska Statutes and the
Alaska Delinquency Rules repeatedly refer to the "adjudication" of
a delinquent minor as the fact-finding stage of the juvenile
proceeding   the stage at which a judge or a jury determines
whether the minor has violated the criminal law.  That is, a minor
is first "adjudicated a delinquent", and then the superior court
holds a disposition hearing to determine what should be done with
the minor. [Fn. 6]  Because the phrase "adjudicated a delinquent
minor" refers to the fact-finding process, not the sentencing
process, an analogous interpretation presumably should be applied
to the companion phrase, "convicted of a felony". [Fn. 7]
          Third, this construction of AS 11.61.200(a)(1) promotes
the legislative policy that underlies all statutes that prohibit
felons from possessing firearms   the perception that people who
commit serious crimes can not be trusted to use firearms
responsibly. [Fn. 8]  For purposes of this policy, the crucial
event is the finding that a defendant has committed a felony, not
the later sentencing.   
          Fourth, this construction of AS 11.61.200(a)(1) accords
with other states' interpretation of similar statutes.  See People
v. Allaire (Colorado) [Fn. 9], State v. Holmes (Kansas) [Fn. 10],
and State v. Carr (Louisiana) [Fn. 11].  
          For these reasons, I conclude that AS 11.61.200(a)(1)
applies to all persons who have been found guilty of a felony,
regardless of whether they have yet been sentenced.  Thus, Brant
and Archambault were properly convicted of violating this statute. 

          I wish to stress that the issue in this case is the
proper interpretation of AS 11.61.200(a)(1).  It is possible that
the phrase "convicted of a felony", used in other statutes and in
other contexts, should be interpreted to require a formal entry of
judgement following sentencing.  For example, compare State v.
Rastopsoff, where this court held that a defendant should not be
considered a repeat felony offender for presumptive sentencing
purposes unless the defendant committed the subsequent felony after
being sentenced for prior offenses. [Fn. 12]  But with regard to
the felon-in-possession statute, I conclude that the legislature
intended that the triggering event be the finding of guilt, not the
sentencing.

COATS, Chief Judge, dissenting.

          The question before us is a question of statutory
interpretation.  Charles L. Brant and Richard Archambault had
entered pleas to felony charges but had not yet been sentenced. 
The state charged them under AS 11.61.200(a)(1) for being felons in
possession of a concealable firearm.   Brant and Archambault
defended on the ground that, since they had not been sentenced,
they had not yet been "convicted of a felony" for purposes of AS
11.61.200(a)(1).  The trial courts rejected the defendants'
interpretation of the statute.  On appeal, the majority of this
court upholds those convictions.  I dissent from this conclusion. 
It is a fundamental principle of statutory construction that
"[a]mbiguities in criminal statutes must be narrowly read and
construed strictly against the government." [Fn. 1]  Since we have
previously interpreted AS 11.61.200(a)(1) to require a defendant to
have been sentenced for a felony offense before he has been
"convicted of a felony," I conclude that we should reverse the
defendants' convictions.
          Alaska Statute 11.61.200(a)(1) states:  "A person commits
the crime of misconduct involving weapons in the third degree if
the person (1) knowingly possesses a firearm capable of being
concealed on one's person after having being convicted of a felony
. . . by a court of this state[.]"  The phrase "convicted of a
felony" is not explained by the statute.  Likewise, the word
"convicted" is not defined in AS 11.81.900 which contains the
definitions for purposes of Title 11, the title on criminal law. 
Therefore, the statute itself does not clearly designate when a
person has been convicted for purposes of applying the statute.  
          In  Berg v. State [Fn. 2] the defendant was convicted of
being a felon in possession of a concealable firearm under AS
11.61.200(a)(1).  The defendant argued that since, at the time he
possessed the firearm, his underlying felony conviction was on
appeal and his sentence was stayed, he could not be convicted as a
felon in possession of a concealable firearm.  We rejected
defendant's arguments, stating:    
               We hold that a person has been
"convicted of a felony" when the appropriate trier of fact has made
a determination of guilt and sentence has been imposed.  A timely
appeal does not suspend a conviction, even though a formal stay is
entered under [the Appellate Rules]. [Fn. 3]

Therefore, we have previously interpreted the phrase "convicted of
a felony" in AS 11.61.200(a)(1) to require the court to sentence a
defendant.  The majority rejects this language as dicta, because it
was not strictly necessary to decide whether Berg's conviction
became final before or after the court sentenced him to decide the
case.  But the language in Berg tracks prior decisions. [Fn. 4] 
For instance, in Sawyer v. State [Fn. 5] we were called upon to
decide when a  person had been previously "convicted of a felony"
for purposes of applying presumptive sentencing.  We held that:
               [A] person has not been convicted of
a felony offense, for presumptive sentencing purposes, until after
he has been sentenced on the first felony offense.



In reaching this conclusion, we relied on several previous cases,
including State v. Carlson [Fn. 6] where the supreme court held
that "in order for a felony conviction to count toward habitual
criminal status an offender must commit a felony, be convicted
therefor, and begin to serve his sentence before the commission of
a subsequent felony."  In Sawyer, we set out policy reasons for
holding that a conviction was final only after the court imposed
sentence:
          We conclude that the policy set forth in
          Carlson seems to be better fulfilled by
establishing the time of  sentencing as the point when the
conviction is final, rather than the time when there is a finding
of guilty or a plea of guilty or nolo contendere.  At sentencing
the defendant will be made aware of the punishment that was the
result of his criminal offense.
 
          We have also considered the fact that a
finding of guilty by a jury or the entry of a plea of nolo
contendere is not as clearly a final conviction as is the
sentencing proceeding.  For instance, after a defendant is found
guilty by a jury, the court may still grant a motion for judgment
of acquittal or a motion for a new trial.  After a defendant has
entered a plea of guilty and that plea is accepted by the court, he
may withdraw his plea before sentencing "for any fair and just
reason."  The rules also require the court to inquire about the
defendant's plea just prior to sentencing.  We conclude that it is
preferable to have a clear and definite time when a conviction will
be final and that this time is the time of sentencing.  We
therefore




          hold that a defendant has not been finally
convicted on a charge, for presumptive sentencing purposes, until
he has been sentenced on that charge. [Fn. 7]

For purposes of applying the felon in possession statute, there is
another policy reason for waiting until sentence is imposed to
finalize the felony conviction.  This gives the court the
opportunity to inform the defendant of the felon in possession
statute.  The state points out that the holding in Sawyer has
apparently been modified by AS 12.55.145. [Fn. 8]  But as the
defendants point out, AS 12.55.145(f) specifically provides that it
is limited to the presumptive sentencing section.  The point is
that the language in Berg was not an accident or an oversight, but
a reflection of a substantial body of Alaska case law.  It is
appropriate for us to rely on this case law in interpreting the
statute.
          I do not want to overstate the case.   In Larson v.
State, we stated that "the word 'conviction' may have different
meanings depending on the context in which it is used." [Fn. 9] 
For instance, in Kelly v. State [Fn. 10] we noted that "[t]he term
'conviction' does not always denote a formally entered judgment." 
In Kelly, we held that a witness could be impeached by evidence of
a prior conviction of dishonesty or false statement under Evidence
Rule 609 where the "verdict of guilt has been accepted but
sentencing has not yet occurred." [Fn. 11]  But in Kelly, we were
not construing a statute defining a criminal offense.  Furthermore,
Kelly and Larson illustrate that the phrase "convicted of a felony"
is ambiguous.
          As stated earlier, "[a]mbiguities in criminal statutes
must be narrowly read and construed strictly against the
government." [Fn. 12]  I believe that the holding in Berg, as
supported by substantial case law, demonstrates that  the language
"convicted of a felony" is ambiguous, and that we must strictly
construe that language against the government.  It seems
fundamentally unfair to convict a defendant based upon an ambiguous
statute.
          I fail to see that strictly construing the felon in
possession statute is inconsistent with a legislative purpose to
protect the public.  Any defendant who has entered a plea of guilty
or been found guilty of a felony charge is subject to conditions of
bail.  The public can be adequately protected by appropriate bail
conditions.  Accordingly, I would reverse the defendants'
convictions.  

                            FOOTNOTES


Footnote 1:

     See State v. Brant, No. 4FA-S94-3216CR; AS 11.41.220(a)-(d).


Footnote 2:

     AS 11.61.200(a)(1).


Footnote 3:

     See State v. Archambault, No. 4FA-S97-267CR. 


Footnote 4:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 5:

     AS 11.61.200(a)(1).


Footnote 6:

     711 P.2d 553, 554 (Alaska App. 1985).


Footnote 7:

     Id.


Footnote 8:

     Id.


Footnote 9:

     See People v. Allaire, 843 P.2d 38, 39 (Colo. App. 1992);
State v. Holmes, 563 P.2d 480, 482 (Kan. 1977); State v. Carr, 487
So.2d 147, 148 (La. App. 1986). See also State v. Dintelman, 829
P.2d 719, 720 (Or. App. 1992) (requiring conviction and imposition
of sentence where trial judge in prior felony retained option to
sentence defendant as a misdemeanant.) 


Footnote 10:

     499 P.2d 1025, 1038 (Alaska 1972), rev'd on other grounds,
Davis v. Alaska, 415 U.S. 308 (1974).


Footnote 11:

     743 P.2d 382, 384 (Alaska App. 1987).  


Footnote 12:

     AS 11.46.130(a)(6); AS 11.46.140(a)(3); AS 11.46.220(c)(1)(C);
AS 11.46.220(c)(2)(B).




                     FOOTNOTES (Concurrence)


Footnote 1:

     591 P.2d 1281, 1284 n.6 (Alaska 1979). 


Footnote 2:

     See, e.g., the Alaska Supreme Court's recent decision in Flynn
v. E.I. du Pont de Nemours & Company, Opinion No. 5177 (September
17, 1999), slip opinion at 3, defining the legal standard governing
modification of pre-trial discovery orders and assigning the burden
of proof to the party seeking the modification. 


Footnote 3:

     See Sakeagak v. State, 952 P.2d 278, 284 (Alaska App. 1998); 
Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992). 


Footnote 4:

     "Interpretation of a statute begins with an examination of its
language construed in light of its purpose."  Beck v. State Dept.
of Transportation & Public Facilities, 837 P.2d 105, 116-17 (Alaska
1992). 


Footnote 5:

     711 P.2d 553, 554 (Alaska App. 1985). 


Footnote 6:

     The following statutes use the term "adjudication" in the
sense of fact-finding, not sentencing:  AS 12.61.010(a)(1)(B); AS
18.15.300(g); AS 47.12.040(a)(1); AS 47.12.110(d); and AS
47.12.120(b)(4)(A).  

     Alaska Delinquency Rules 2(a) and 21(a) explicitly define
"adjudication hearing" as the fact-finding proceeding in which a
judge or jury determines whether the minor has violated the
criminal law.  In fact, Delinquency Rule 21(c) refers to an
"adjudication by jury"   a phrase that would make no sense if
"adjudication" referred to the final entry of judgement and
imposition of sanctions.  Rather, Delinquency Rules 17(b), 21, and
23 explicitly distinguish between the "adjudication" (the formal
finding that a minor has or has not violated the criminal law) and
the "disposition" (the judge's decision as to what should be done
with a minor after the minor is found to be delinquent). 


Footnote 7:

     In the law of statutory construction, this principle is
sometimes referred to as noscitur a sociis.  See Olson v. Olson,
856 P.2d 482, 484 n.2 (Alaska 1993). 


Footnote 8:

     See State v. Samonte, 928 P.2d 1, 29 (Haw. 1996); People v.
Allaire, 843 P.2d 38, 41 (Colo. App. 1992); State v. Holmes, 563
P.2d 480, 482 (Kan. 1977). 


Footnote 9:

     843 P.2d 38, 39 (Colo. App. 1992). 


Footnote 10:

     563 P.2d 480, 482 (Kan. 1977). 


Footnote 11:

     487 So.2d 147, 148 (La. App. 1986). 


Footnote 12:

     659 P.2d 630, 640-41 (Alaska App. 1983). 




                      FOOTNOTES   (Dissent)


Footnote 1:

       State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985) aff'd
723 P.2d 85 (Alaska 1986); See also 3 Norman J. Singer, Sutherland
Statutory Construction sec. 59.03 (5th ed 1992).


Footnote 2:

       711 P.2d 553 (Alaska App. 1985).


Footnote 3:

       Id. at 554.


Footnote 4:

       See State v. Carlson, 560 P.2d 26, 30 (Alaska 1977);  State
v. Rastopsoff, 659 P.2d 630, 641 (Alaska App. 1983); Sawyer v.
State, 663 P.2d 230 (Alaska App. 1983).


Footnote 5:

       663 P.2d 230 (Alaska App. 1983).


Footnote 6:

       560 P.2d 26, 30 (Alaska 1977).


Footnote 7:

       Sawyer, 663 P.2d at 231-32 (citations omitted).


Footnote 8:

       AS 12.55.145 defines when prior convictions are to be
considered for presumptive sentencing.  AS 12.55.145(f) provides:

          Under this section, a prior conviction has
occurred when a defendant has entered a plea of guilty, guilty but
mentally ill, or nolo contendere, or when a verdict of guilty or
guilty but mentally ill has been returned by a jury or by the
court.


Footnote 9:

       Larson v. State, 688 P.2d 592, 597 (Alaska App. 1984).


Footnote 10:

       663 P.2d 967, 971 (Alaska App. 1983).


Footnote 11:

       Id. at 972.


Footnote 12:

       Andrews, 707 P.2d at 907.  See also Singer, supra Note 1.