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State v. Fogg (2/4/00) ap-1660
State v. Fogg (2/4/00) ap-1660
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:
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Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7285
Appellant, ) Trial Court No. 1JU-S98-2483 CR
)
v. ) O P I N I O N
)
TORIN C. FOGG, )
)
Appellee. ) [No. 1660 - February 4, 2000]
)
Appeal from the District Court, First Judicial
District, Juneau, J.W. Sivertsen, Jr., Magistrate.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Kirsten Swanson, Assistant Public Defender, Juneau, and
Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Judge.
Torin Fogg pled guilty to driving with a suspended license
in violation of AS 28.15.291. In sentencing Fogg, the magistrate
allowed Fogg to convert his community work service into a fine at
the rate of $6.25 per hour, despite a provision in AS 28.15.291
requiring 80 hours of mandatory community work service. We
conclude this sentence contravenes AS 28.15.291 and is therefore
illegal. We vacate the sentence and remand for resentencing.
Fogg was cited for driving with a suspended license in
violation of AS 28.15.291. He pled guilty to this charge as part
of his plea agreement with the state. The prosecutor and Fogg told
the court that they had agreed that Fogg's sentence would be the
minimum sentence permitted by AS 28.15.291: "10 days jail with 10
days suspended, 90 days [license] revocation, 80 hours community
work service."
The magistrate accepted the plea. Then he stated that if
Fogg did not complete his 80 hours of community service, he would
allow Fogg to convert the remaining community service hours to a
fine at the rate of $6.25 per hour. [Fn. 1] The state objected,
arguing that the sentence was illegal. The magistrate rejected this
argument and issued an order which allowed Fogg to pay a fine of
$6.25 an hour for each hour of community work service which Fogg did
not complete.
The issue in this case involves one of statutory
interpretation. [Fn. 2] The statute in question is AS 28.15.291
driving while license canceled, suspended, revoked, or in violation
of a limitation. Subsection (b)(1)(A) of this statute states: "Upon
conviction under (a) of this section, the court shall impose a
minimum sentence of imprisonment if the person has not been
previously convicted, of not less than 10 days with 10 days
suspended, including a mandatory condition of probation that the
defendant complete not less than 80 hours of community work
service." [Fn. 3] Subsection (b)(3)(A) further states that "the
court may not suspend execution of sentence or grant probation
except on condition that the person serve a minimum term of
imprisonment and perform required community work service as provided
in (1) of this subsection." [Fn. 4]
Both the state and Fogg rely on the fact that other Alaska
statutes specifically allow courts to convert one form of punishment
for another. For example, AS 12.55.055(d) allows a court to "offer
a defendant convicted of an offense the option of performing
community work in lieu of a sentence of imprisonment." Alaska
Statute 12.55.055(c) allows a court to "offer a defendant convicted
of an offense the option of performing community work in lieu of a
fine." [Fn. 5] Fogg argues that these provisions establish that
courts have the authority to substitute various forms of punishment
for others. The state argues the opposite by noting, correctly,
that while certain Alaska statutes allow for community work instead
of a fine, and community work instead of a prison sentence, no
statute expressly allows for converting community work into a fine.
This "lack of symmetry," according to the state, "is no
coincidence." Rather, it shows that the legislature did not want
courts to have the power to replace community work service with
fines.
The state's argument is more convincing when viewed in
light of the statutory construction principle, expressio unius est
exclusio alterius. In Croft v. Pan Alaska Trucking, [Fn. 6] a
worker's compensation case, the supreme court analyzed this
principle.
We agree with Croft that AS 23.30.155(j) provides
the exclusive remedy for an employer to recover overcompensation.
. . . In reaching this conclusion, we employ the principle of
statutory construction expressio unius est exclusio alterius. "The
maxim establishes the inference that, where certain things are
designated in a statute, 'all omissions should be understood as
exclusions.' The maxim is one of longstanding application, and it
is essentially an application of common sense and logic." . . .
Alaska Statute 23.30.155(j) specifically enumerates a remedy for
overcompensation. In the absence of any indication in the Act to
the contrary, the inference we draw is that the inclusion of this
specified remedy was intended to exclude other remedies for
overcompensation. The case for application of expressio unius est
exclusio alterius is particularly compelling, where, as here, the
scheme is purely statutory and without a basis in the common law.
[Fn. 7]
The reasoning in Croft applies to the present case.
Certain Alaska statutes allow courts to require community work
service in place of fines and prison time. But no statute allows
fines to be used in place of community work service. The inference,
therefore, is that courts do not have the authority to do what the
magistrate did in the present case.
The state offers a policy argument in support of its
interpretation of the statute. The state argues that imprisonment,
fines, and community work service are not interchangeable, but
support different sentencing goals. The state points out that a
wealthy individual has financial resources which allow that
individual to pay a fine without difficulty. The state contends that
requiring everyone convicted of driving with a suspended license to
perform community work service might ameliorate the discrepancy
created by a convicted defendant's wealth. Fogg counters this
policy argument by pointing out that a poor person might be
adversely affected by the requirement of community work service.
Someone who must work two jobs or has the sole responsibility for
young children might have difficulty performing community work
service. The state's policy argument appears to be the one which
the legislature adopted. To the extent that mandatory community
work service imposes a hardship on a defendant, we believe that
courts have sufficient flexibility to devise community work service
programs which can be done without undue hardship.
We accordingly conclude that the magistrate imposed an
illegal sentence by entering a judgment which allowed Fogg to pay
a fine rather than to perform mandatory community work service. We
accordingly order the magistrate to strike this illegal portion of
the judgment. [Fn. 8]
REMANDED.
FOOTNOTES
Footnote 1:
The magistrate appears to have relied on AS 12.55.051(a) which
provides that if a defendant defaults in the payment of a fine or
restitution that the "term of imprisonment imposed under this
section may not exceed one day for each $50 of the unpaid portion
of the fine or restitution or one year, which ever is shorter." In
addition, the magistrate appears to have relied on AS 12.55.055(d)
which allows the court to "offer a defendant convicted of an offense
the option of performing community work service in lieu of a
sentence of imprisonment. Substitution of community work shall be
at a rate of eight hours a day for each day of imprisonment." $50
per day divided by eight hours per day equals $6.25 per hour.
Footnote 2:
For questions of statutory interpretation, this court should
be guided by the following principles: (1) review is de novo. State
v. McCallion, 875 P.2d 93, 98 (Alaska App. 1994); (2) this court
should "adopt the rules of law that are most persuasive in light of
precedent, policy, and reason." Id.; and (3) "[w]here a statute's
meaning appears clear and unambiguous, the party asserting a
different meaning bears a correspondingly heavy burden demonstrating
contrary legislative intent." University of Alaska v. Tumeo, 933
P.2d 1147, 1152 (Alaska 1997) (quoting Lagos v. City and Borough of
Sitka, 823 P.2d 641, 643 (Alaska 1991)).
Footnote 3:
AS 28.15.291(b)(1)(A) (emphasis added).
Footnote 4:
AS 28.15.291(b)(3)(A) (emphasis added).
Footnote 5:
See also AS 04.16.205(b)(2) (community work in lieu of a fine);
AS 47.12.030(b)(6) (same).
Footnote 6:
820 P.2d 1064 (Alaska 1991).
Footnote 7:
Id. at 1066 (citation omitted). But cf. Sonneman v. Hickel,
836 P.2d 936, 939 (Alaska 1992) ("While this maxim is often a useful
and logical guide to the meaning of an enactment, it does not always
apply.").
Footnote 8:
See Dunham v. City and Borough of Juneau, 790 P.2d 239 (Alaska
App. 1990).
