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Baker v State (08/24/2001) ap-1761
Baker v State (08/24/2001) ap-1761
NOTICE
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRED A. BAKER, ) Court of Appeals No. A-7675
) Trial Court No. 3KN-S99-420 CR
)
Appellant, )
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1761 - August 24, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: Douglas O. Moody, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Douglas H. Kossler, 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.
Fred A. Baker was convicted of felony refusal to submit
to a breath test and felony driving while intoxicated (DWI), both
class C felonies. [Fn. 1] Baker was a third felony offender for
purposes of presumptive sentencing, so he faced a three-year
presumptive term of imprisonment for each offense. [Fn. 2] In
addition, because Baker had two prior DWI convictions, he faced a
120-day minimum sentence for each offense. [Fn. 3] Superior Court
Judge Jonathan H. Link sentenced Baker to the three-year presumptive
term for each offense.
This appeal requires us to interpret a portion of the
breath test refusal statute, AS 28.35.032(p)(5), which states that
"the sentence imposed by the court under this subsection shall run
consecutively with any other sentence of imprisonment imposed on the
person." Judge Link interpreted this provision to mean that Baker's
sentence for breath test refusal had to run consecutively to his
sentence for DWI and, accordingly, he sentenced Baker to
consecutive three-year terms, for a composite six years of
imprisonment.
Baker contends that the phrase "shall run consecutively"
applies only to the mandatory minimum sentences specified in the
breath test refusal statute. In Baker's case, the applicable
mandatory minimum sentence was 120 days. Baker concedes that Judge
Link was obliged to impose 120 days of the breath test refusal
sentence consecutively to the DWI sentence, but Baker argues that
Judge Link had the authority to order concurrent sentencing with
respect to the remainder of the breath test refusal sentence. We
agree.
"The guiding principle of statutory construction is to
ascertain and implement the intent of the legislature." [Fn. 4]
Here, the question is to ascertain the legislature's intent when it
declared in AS 28.35.032(p)(5) that "the sentence imposed . . . under
this subsection shall run consecutively with any other sentence of
imprisonment."
Based on a reading of AS 28.35.032(p), the reference to
"this subsection" appears to be ambiguous. Clearly, "this subsection"
does not refer to paragraph (5) itself, for paragraph (5) does not
specify any sentences. Rather, the phrase "this subsection" must
therefore refer to subsection (p) as a whole. But what did the
legislature mean when it referred to "the sentence[s] imposed . .
. under" subsection (p)? The state argues that this language refers
to any sentence imposed on a defendant convicted of felony breath
test refusal. Baker, on the other hand, argues that this language
refers to the various mandatory minimum sentences specified in AS
28.35.032(p)(1). [Fn. 5]
To resolve this question, we have examined the 1982
enactment that is the source of the questioned language. In 1982,
the Alaska Legislature decided to make breath test refusal a
separate crime. This new crime carried the same penalties as DWI,
so that (theoretically, at least) an arrested motorist would have
little incentive to refuse to take the breath test. [Fn. 6]
The result was chapter 117, section 17, of the 1982
session laws. This session law added subsections (f) through (i)
to the breath test refusal statute, AS 28.35.032. Subsection (f)
declared simply that "[r]efusal to submit to the chemical test of
breath authorized by AS 28.35.031 is a class A misdemeanor." The
next subsection, (g), specified a series of mandatory minimum
sentences for this new crime:
(g) Upon conviction of a person under
this section, the court shall impose a minimum sentence of
imprisonment of not less than 72 consecutive hours. Upon a
subsequent conviction within five years after a conviction under
this section or [a conviction for] driving while intoxicated in this
or any other state, the court shall impose a minimum sentence of
imprisonment of not less than 10 consecutive days unless the
subsequent conviction is within one year of the previous conviction,
in which case the court shall impose a minimum sentence of
imprisonment of not less than 20 consecutive days . . . . The
sentence imposed by the court under this subsection shall run
consecutively with any other sentence of imprisonment imposed on the
committed person. [Fn. 7]
In this, its original form, the meaning of "sentence
imposed . . . under this subsection" is much clearer. With regard
to the phrase "under this subsection," the only possible reference
is to subsection (g) itself. And the sole function of subsection
(g) was to specify a series of mandatory minimum sentences. Thus,
when the legislature declared that a "sentence imposed . . . under
this subsection shall run consecutively with any other sentence,"
the clear reference is to the mandatory minimum sentences set out
in subsection (g).
Since 1982, the legislature has increased the mandatory
minimum sentences for misdemeanor breath test refusal [Fn. 8] and
it has enacted felony penalties for certain repeat offenders. [Fn.
9] But although the misdemeanor and the felony provisions of the
statute have been amended, and the mandatory minimum sentences
increased, both subsections still carry forward the language from
1982 the declaration that a "sentence imposed . . . under this
subsection shall run consecutively with any other sentence."
In 1982, this language referred to the mandatory minimum
sentences spelled out in the newly-enacted subsection (g). Even
though AS 28.35.032 has been amended several times since then, there
is no indication that the legislature ever intended to alter the
meaning of this language. We conclude that the language concerning
a "sentence imposed . . . under this subsection" still refers to the
mandatory minimum sentences now specified in AS 28.35.032(g)(1) and
(p)(1).
Because Baker was subject to a 120-day mandatory minimum
sentence for breath test refusal, Judge Link was obliged under AS
28.35.032(p)(5) to impose 120 days of Baker's breath test refusal
sentence consecutively to Baker's DWI sentence. However, with
respect to the remaining 2 years, 245 days of Baker's breath test
refusal sentence, Judge Link had the discretion to impose all or a
portion of this remainder concurrently with the DWI sentence.
Accordingly, we VACATE Baker's breath test refusal
sentence and we direct the superior court to resentence Baker in
accordance with this opinion.
FOOTNOTES
Footnote 1:
AS 28.35.030(a)(1) or (2); AS 28.35.032(a), (p).
Footnote 2:
AS 12.55.125(e)(2).
Footnote 3:
AS 28.35.030(n)(1)(A) (DWI); AS 28.35.032(p)(1)(A) (breath test
refusal).
Footnote 4:
Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992).
Footnote 5:
Alaska Statute 28.35.032(p) reads, in part: "A person is guilty
of a class C felony if the person is convicted [of breath test
refusal] and has been previously convicted [of DWI or breath test
refusal] two or more times within the five years preceding the date
of the present offense . . . . Upon conviction,
(1) the court shall impose a fine of not less than $5,000
and a minimum sentence of imprisonment of not less than
(A) 120 days if the person has been previously
convicted twice;
(B) 240 days if the person has been previously
convicted three times;
(C) 360 days if the person has been previously
convicted four or more times[.]
Footnote 6:
See Committee Minutes, House Finance Committee Hearing on SB
611 (April 21, 1982).
Footnote 7:
Emphasis added.
Footnote 8:
AS 28.35.032(g).
Footnote 9:
AS 28.35.032(p).
