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Semaken v. State (9/22/00) ap-1687
Semaken v. State (9/22/00) ap-1687
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
HAROLD J. SEMAKEN, )
) Court of Appeals No. A-7473
Appellant, ) Trial Court No. 4FA-99-750 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1687 September 22, 2000]
)
Appeal from the District Court, Fourth Judicial
District, Fairbanks, Raymond M. Funk, Judge.
Appearances: Bethany P. Spalding, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Kenneth M. Rosenstein, 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.
MANNHEIMER, Judge.
Harold J. Semaken was convicted of second-degree sexual
assault in 1990. Because of this conviction, Semaken is obliged to
register as a sex offender. [Fn. 1] Each year, Semaken must report
his address (and certain other information) to the Department of
Public Safety. [Fn. 2]
At the time that this case arose, the Department had
promulgated a regulation, 13 AAC 09.030(c), which required sex
offenders to make their annual reports within the 30 days preceding
their birthday. [Fn. 3] Semaken, whose birthday is March 18th, was
stopped for a traffic violation on March 21, 1999. During this
traffic stop, the police officer discovered that Semaken had not yet
made his annual report to the Department of Public Safety. As a
consequence, Semaken was charged with the misdemeanor of failing to
report. [Fn. 4]
In the district court, and now on appeal, Semaken asserts
that the Department's former regulation is invalid because it
established a general rule for all sex offenders. According to
Semaken, the promulgation of such a general rule runs contrary to
an explicit provision of AS 12.63.010(d).
AS 12.63.010(d)(1) declares that all sex offenders who are
required to make yearly reports shall make their report "on a date
set by the department at the time of the sex offender's ... initial
registration". [Fn. 5] Semaken argues that this statute requires
the Department of Public Safety to specially establish an
individualized annual reporting schedule for each sex offender at
the time of their initial registration. We do not agree. The
statute does not preclude the Department from promulgating a general
rule to govern the reporting deadline for all sex offenders in
particular, to require all sex offenders to report within the 30
days preceding their birthday.
The challenged regulation, 13 AAC 09.030(c), was in
effect when Semaken initially registered as a sex offender. Thus,
the statute was satisfied: Semaken's annual reporting deadline was
"set by the department at the time of [Semaken's] initial
registration".
Moreover, the State presented evidence that Semaken had
actual notice of the "birthday" requirement. A Department of Public
Safety employee testified that she expressly reminded Semaken of
this requirement in August 1998, when Semaken came in to report a
change of address. In fact, she had Semaken sign a form
acknowledging that he was required to file his annual report within
the 30 days preceding his birthday and that he would be "out of
compliance" if he waited until after his birthday.
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
See AS 12.63.010(a) (b).
Footnote 2:
See AS 12.63.010(d)(1) and AS 12.63.020(a)(2).
Footnote 3:
This regulation has since been amended; it no longer contains
a subsection (c), and it no longer specifies the 30-day period
preceding the offender's birthday.
Footnote 4:
AS 11.56.840(a).
Footnote 5:
At the time of Semaken's offense, an earlier version of this
same statute was in effect. However, the earlier version also
contained a provision requiring sex offenders to make yearly reports
on a date set by the Department at their initial registration. See
former AS 12.63.010(d).
