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State v. Auliye (10/25/2002) ap-1838
State v. Auliye (10/25/2002) ap-1838
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
STATE OF ALASKA, )
) Court of Appeals No.
A-8084
Petitioner, )
Trial Court No. 2NO-01-427 Cr
)
v. )
) O P I N
I O N
CANDICE AULIYE, )
)
Respondent. )
[No. 1838 October 25, 2002]
)
Petition for Review from the District Court,
Second Judicial District, Nome, Ben J. Esch,
Judge.
Appearances: John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner. Margi A. Mock and Wally
Tetlow, Assistant Public Defenders, and
Barbara K. Brink, Public Defender, Anchorage,
for Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Candice Auliye is charged with violating AS 4.16.050(a)
consuming or possessing alcoholic beverages while younger than
twenty-one years. Superior Court Judge Ben J. Esch concluded
that the potential penalty for this offense is sufficiently
severe that Auliye is entitled to a jury trial and to counsel at
public expense if she is unable to afford private counsel. The
State has petitioned us to review this ruling.
Any person found guilty of violating AS 4.16.050 must
be placed on probation until they are twenty-one years old (or
for one year, whichever is longer). Although the legislature has
chosen a familiar word to describe this penalty, it is different
from the probation traditionally imposed under Alaska law.
Unlike ordinary probation, neither the sentencing judge nor the
defendant has any choice in the matter: the judge is obliged to
place the defendant on this lengthy probation, and the defendant
has no right to refuse. In other words, the probation is
automatic.
Moreover, AS 4.16.050 expressly provides that the terms
of the defendants probation can include custodial in-patient
treatment and community work service. Since the defendant has no
right to refuse the probation, the defendant must comply with
these conditions, and the court can enforce compliance through
its contempt power.
In previous cases, we have held that custodial in-
patient treatment and community work service are penalties that
trigger the right to trial by jury and the right to counsel at
public expense. We therefore conclude that the penalties for
violating AS 4.16.050 are sufficiently severe that a defendant is
entitled to trial by jury and, if the defendant is indigent, to
counsel at public expense.
The history of AS 4.16.050 in its prior forms, and the
legislatures initial attempt to de-criminalize this
offense that is, reduce the penalties to a level where
defendants would no longer have the right to trial by
jury and, if indigent, the right to counsel at public
expense
Until 1995, violation of AS 4.16.050 was a
class A misdemeanor.1 This meant that defendants
between the ages of 18 and 21 (that is, youths who were
too old to be treated under the juvenile system) faced
up to 1 years imprisonment if convicted.2 The
legislature discovered that, in practice, this penalty
did more to deter enforcement of the law than to deter
minors from violating the law. Many law enforcement
officers were reluctant to bring criminal charges
against a youth for conduct that was often viewed as a
rite of passage, especially when conviction would
jeopardize the youths future military and employment
opportunities.3
At the same time, the legislature received
complaints from parents of youths younger than 18 that
is, youths who were referred to the juvenile justice
system for underage drinking. According to these
parents, juvenile authorities had their hands full with
more serious teenage crime, so the authorities gave low
priority to teenage drinking. Offenders often received
no greater punishment than a scolding letter which
arrived months after the offense.4
In 1994 and 1995, the legislature tried an
alternate approach. Instead of relying on prison terms
to deter teenage drinking, the legislature attacked the
problem by requiring the Department of Public Safety to
administratively revoke the drivers license of any
minor (older than 13) who consumed or possessed
alcoholic beverages, regardless of whether the minors
consumption or possession of alcoholic beverages was
connected to the minors operation or control of a motor
vehicle.5 Having adopted this license-revocation
approach, the legislature amended AS 4.16.050 to reduce
the offense from a class A misdemeanor to a violation
whose sole penalty was a fine of not less than $100.6
In another section of the same session law, the
legislature amended the juvenile delinquency laws to
exempt underage drinkers from juvenile jurisdiction.7
That is, all such offenders (no matter what their age)
would be prosecuted in district court and, if
convicted, they would face only a fine and
administrative revocation of their drivers license
(rather than the institutionalization or involuntary
placement in a foster home that were possible
dispositions in a juvenile delinquency proceeding).8
One of the perceived benefits of this new
approach was that the state would not have to spend so
much money to prosecute youths for underage drinking.
The legislature anticipated that, because of these
changes in the penalty structure, youths charged with
underage drinking would no longer be entitled to court-
appointed counsel or to trial by jury.
In a pair of decisions issued in 1970 and
1971, Baker v. Fairbanks and Alexander v. Anchorage,
the Alaska Supreme Court ruled that the Alaska
Constitution guarantees defendants the right to trial
by jury and (if indigent) the right to court-appointed
counsel if they are charged with an offense that
carries a potential penalty of (1) imprisonment, (2)
the loss of valuable license (e.g., a drivers license),
or (3) a fine so large as to connote criminality.9 And
in R.L.R. v. State, the supreme court held that
juvenile offenders facing similar consequences also
have the right to trial by jury.10
As just explained, the legislatures
amendments of 1994 and 1995 removed the offense of
underage drinking from the juvenile delinquency laws
and reduced the punishment for this offense to a small
fine. Although youths who consumed or possessed
alcoholic beverages would suffer revocation of their
drivers license, the revocation would be imposed by the
Department of Public Safety in an administrative
proceeding, not by the district court in a sentencing
proceeding. In fact, the license revocation could
occur even though the youth was never prosecuted for
violating AS 4.16.050.11 The legislature hoped that,
with this new penalty structure, the offense of minor
consuming would not require a jury trial or court-
appointed counsel under the Baker-Alexander-R.L.R.
test.
But in State v. Niedermeyer, the Alaska
Supreme Court ruled that the administrative license
revocation enacted by the legislature was in fact
punitive (because the statute required revocation of
the minors license even when there was no proof that
the minors consumption or possession of alcohol had any
connection to the operation of a motor vehicle).12
Because the license revocation was punitive, the court
ruled, the State could not impose the license
revocation unless it accorded the minor [all] the
safeguards of criminal process that normally apply to
criminal punishment.13
Baker v. Fairbanks and Alexander v. Anchorage
hold that when a defendant faces the potential loss of
a drivers license, two of the defendants prime
procedural safeguards are the right to trial by jury
and the right to counsel. Thus, after Niedermeyer, the
State was obliged to give minors a jury trial, and give
indigent minors court-appointed counsel, if the State
wished to revoke a minors drivers license based on the
minors consumption or possession of alcoholic
beverages.
The legislatures response to Niedermeyer: the
rewriting of AS 4.16.050
After the supreme courts decision in
Niedermeyer, the legislature was faced with a choice.
One option was to continue the policy of
attempting to deter teenage drinking by revoking the
drivers licenses of all minors who consumed or
possessed alcoholic beverages. To pursue this policy,
the legislature would simply redraw the penalty
provisions of AS 4.16.050 so that license revocation
was again a direct punishment for this offense. With
this change in the statute, the threat of license
revocation would remain a deterrent to teenage
drinking, but the legislature would have to abandon
their other goal of prosecuting minors without giving
them the protections of trial by jury and court-
appointed counsel.
The legislature chose instead to pursue a
modified strategy. They abandoned license revocation
as a punishment for first offenders so that first
offenders could be prosecuted without jury trials and
without court-appointed defense counsel.
The amended version of AS 4.16.05014 creates
three tiers of defendants: first offenders, repeat
offenders, and habitual offenders. When the court
sentences a repeat or habitual offender, the court must
revoke the offenders drivers license and must order the
offender to perform a specified minimum number of hours
of community work service (i.e., forced labor).15
The legislature was aware that both of these
penalties trigger a defendants rights to jury trial and
court-appointed counsel.
(As already explained, the Alaska Supreme
Court held in Baker and Alexander that revocation of a
drivers license is the type of penalty that triggers a
defendants rights to jury trial and court-appointed
counsel. And this Court held in Booth v. State, 903
P.2d 1079, 1087-88 (Alaska App. 1995), that community
work service is also the type of penalty that triggers
these procedural rights.)
But the legislature still hoped to allow the
government to prosecute first offenders without giving
them a jury trial or court-appointed counsel by
keeping the penalty for a first offense small enough to
escape Baker, Alexander, and Booth. The problem with
this strategy is that, under the Alaska Constitution, a
person can not be subjected to increased criminal
penalties as a repeat offender unless they were
accorded the right to counsel in the proceedings that
led to their prior conviction. Pananen v. State, 711
P.2d 528, 531-32 (Alaska App. 1985).
Thus, the legislature was apparently caught
between Scylla and Charybdis: If they made the penalty
for a first offense too severe, first offenders would
be entitled to a jury trial and to court-appointed
counsel. Yet if they enacted a small penalty for a
first offense, so that first offenders could be tried
and convicted without a jury trial and without court-
appointed defense counsel, the resulting conviction
could not be used later to establish the youths status
as a repeat or habitual offender.
The drafters of AS 4.16.050 attempted to
solve this problem by creating a new kind of criminal
penalty. Under the current version of the statute,
minors convicted for the first time of consuming or
possessing alcoholic beverages still face a small fine
(not less than $200 and not more than $600). But, in
addition, they face a new penalty that the legislature
labeled probation.
The nature of the probation authorized by AS 4.16.050
AS 4.16.050(e) declares that all youths
(including first offenders) who are sentenced for
consuming or possessing alcoholic beverages must be
placed on probation until they are twenty-one years old
(or for one year, whichever is longer). The statute
declares that the convicted youth may not refuse
probation.
As part of this probation, the court may
require the [offender] to pay for and enroll in a
juvenile alcohol safety action program, if one is
available. Moreover, the sentencing judge can
authorize the officials of the alcohol safety action
program to require the youth to submit to in-patient
(i.e., residential) treatment, so long as the judgment
specifies the maximum period of inpatient treatment
authorized.16 In addition to the possibility of
enforced residential treatment, subsection (e) requires
the sentencing judge to impose the following conditions
of probation:
(1) the person shall pay for and
successfully complete any education or
treatment recommended;
(2) the person may not consume inhalants
or possess or consume controlled substances
or alcoholic beverages, except [those
provided by a parent, guardian, or spouse off
licensed premises, or as part of medical
treatment];
(3) the person shall timely complete any
community work ordered, as provided in (f) of
this section; and
(4) other conditions the court considers
appropriate.
There is one other alternative
available to the sentencing judge. Under
subsection (b)(1) of the statute, a judge can
grant a first offender a suspended imposition
of sentence as provided in AS 12.55.085.
However, any youth who receives a suspended
imposition of sentence must likewise be
placed on probation until they are twenty-one
years old (or for one year, whichever is
longer).17
Under AS 12.55.085, any person who
receives a suspended imposition of sentence
is released to the charge and supervision of
[a] probation officer, under the terms and
conditions that the court determines.18 In
addition, AS 4.16.050(b)(1) specifies that
the youths SIS probation can include
treatment and community work in an amount
determined by a community diversion panel
(which the statute defines as a youth court
or other group selected by the court to serve
as a sentencing option).19
Thus, whether a first offender
receives a normal sentence or a suspended
imposition of sentence, they must be placed
on probation until they are twenty-one years
old. And, because they are on probation,
they can be ordered to submit to custodial
in-patient treatment (i.e., residential
treatment which includes constraints on the
patients liberty equivalent to the
constraints of incarceration), and they can
also be ordered to perform community work
service.
Under Alaska law, a person facing
either of these penalties has a right to
trial by jury and (if indigent) a right to
defense counsel at public expense. This
Court has ruled that [c]ustodial confinement
in a residential alcohol treatment program is
the functional equivalent of jail time and
therefore constitutes a sentence of
imprisonment.20 Thus, a person who faces
custodial in-patient alcohol treatment as a
penalty for an offense is entitled to a jury
trial and to court-appointed counsel.
Likewise, this Court held in Booth v. State
that a person facing the possibility of
community work service is entitled to these
same procedural rights.21
In addition to custodial in-patient
treatment and community work service, first
offenders can be ordered to submit to [any]
other conditions [of probation] the court
considers appropriate.22 This clause is
potentially quite expansive. For example, to
pursue the aim of rehabilitating a youth who
has consumed alcoholic beverages, a
sentencing judge might require a youth to
obey a curfew, or remain enrolled in school
past the legally mandated age of 16, or find
after-school employment. The judge might
also forbid the youth from associating with
friends who the judge believes are a bad
influence.
Perhaps most significant, the
youths probation status would give the
sentencing judge the opportunity to
effectively revoke the youths drivers license
the very penalty that, according to the
supreme courts decision in Niedermeyer, can
not be imposed unless a defendant is afforded
the right to trial by jury and the right to
court-appointed counsel.
In Baum v. State, 24 P.3d 577, 581-
82 (Alaska App. 2001), this Court ruled that
a sentencing judge can impose a condition of
probation that requires a defendant to
refrain from engaging in a licensed activity
for a longer period than the amount of
license suspension or revocation that could
be imposed on the defendant as a direct
component of the defendants sentence.
Indeed, the Alaska Supreme Court has ruled
that a sentencing judge can, as a condition
of probation, impose a penalty that the judge
could not impose as a direct component of the
defendants sentence. See Brown v. State, 559
P.2d 107, 109-110 (Alaska 1977) (holding that
a judge can order a probationer to pay a fine
even when the applicable sentencing statute
does not authorize imposition of a fine as a
direct component of the defendants sentence).
It is therefore at least arguable
that, as a condition of a first offenders
probation, a judge could forbid the youth
from operating a motor vehicle until the end
of their probation i.e., until they turned
twenty-one.
Why the probation authorized by AS 4.16.050 differs
from normal probation, and why we hold that a youth
charged with violating AS 4.16.050 is entitled to a
jury trial and, if indigent, to court-appointed defense
counsel
Normally, probation is a counterpart to a
suspended or partially suspended sentence. It is a
contract between the court and the defendant: the
defendant consents to be supervised and to live under
the conditions imposed by the court in exchange for the
courts agreement to suspend imposition of the
defendants sentence or to suspend execution of a prison
term and/or a fine.23 Because probation is a contract,
and because this contract allows a judge to control a
defendants life in ways that the defendant may deem
more burdensome than normal criminal penalties, a
defendant is free to refuse probation and to insist on
a normal sentence.24
But the probation mandated by AS 4.16.050(e)
is not a contract. It has no relationship to whether
any portion of the defendants sentence is suspended.
Nor is this probation the result of a voluntary
agreement between the sentencing judge and the
offender. The sentencing judge must place the
defendant on probation until the defendant is twenty-
one years old, and the defendant has no discretion to
refuse.
In other words, this probation is unlike
normal probation because it is automatic. And because
all first offenders automatically receive this
probation, a sentencing judge automatically has the
authority to order a first offender to submit to
custodial in-patient treatment, to engage in community
work service, and perhaps to surrender the privilege to
operate motor vehicles all penalties that trigger the
defendants right to trial by jury and the defendants
right to court-appointed counsel if indigent.
Seven centuries ago, the English philosopher
William of Occam described a philosophical principle
that is still employed to good effect today: the best
explanation of a condition or phenomenon is the one
that is the simplest, i.e., the one that uses the
fewest assumptions or hypotheses to adequately explain
what is observed. This principle, known as Occams
razor25, is used to pare away extraneous labels and
concepts, thus allowing the unadorned truth of the
matter to be seen. We now use Occams razor on the case
before us.
All youths convicted of violating AS 4.16.050
for the first time are automatically placed on
probation. As a consequence, in all such cases,
sentencing judges are empowered to impose penalties on
these youths that are sufficiently severe to trigger
the rights to jury trial and court-appointed counsel.
Using Occams razor, we strip away the reference to
probation, and what is left is the unadorned truth: In
all cases, first offenders convicted of violating AS
4.16.050 can be punished with penalties that are
sufficiently severe to trigger the rights to jury trial
and court-appointed counsel.
The statute does not oblige sentencing judges
to impose these penalties on a first offender. But, as
we held in Booth v. State, it is the possibility of
these penalties that triggers the defendants procedural
rights.26
We therefore hold that all youths (including
first offenders) who are charged with violating AS
4.16.050 are entitled to trial by jury and, if they are
indigent, to counsel at public expense.
The States alternative construction of AS 4.16.050, and
why we reject it
In its arguments to this Court, the State
acknowledges that penalties such as community work
service and custodial in-patient treatment trigger the
right to jury trial and the right to court-appointed
counsel. But the State suggests that AS 4.16.050 does
not authorize sentencing judges to force first
offenders to engage in community work service or
custodial in-patient treatment. This suggestion is
based on the States unusual interpretation of what AS
4.16.050(e) means by probation.
The State concedes that the probation
described in AS 4.16.050(e) is not like normal
probation, for there is no suspended sentence hanging
over the defendant. But the State takes this fact and
gives it an unexpected twist:
Because the statute requires sentencing
judges to place first offenders on probation even
though, in most cases, there will be no suspended
sentence to impose in the event that the defendant
fails to honor the terms of probation, the State
suggests that the legislature must not have intended to
force defendants to comply with the terms of their
probation. Instead, the State argues, the legislature
crafted AS 4.16.050(e) with the expectation that
defendants would be free to disregard the terms of
their probation. The only real purpose of the
probation, according to the State, is to establish the
defendants status as a second offender if the defendant
is ever convicted again.
We find the States suggestion far-fetched.
We can think of few things that would be more certain
to undermine respect for the law than to require a
sentencing judge to impose conditions of probation
that, by design, can never be enforced. AS 4.16.050(e)
requires judges to place all first offenders on
probation, and the statute also specifies the
conditions of probation that a judge must impose. It
seems improbable (to say the least) that the
legislature would require sentencing judges to engage
in the charade of ordering youths to comply with terms
of probation if the legislature intended these terms of
probation to be unenforceable.
The States request that we strike all provisions of the
statute that allow a sentencing judge to require a
first offender to submit to in-patient treatment, to
engage in community work service, or to give up their
right to drive
At oral argument, the State suggested an
alternative way to resolve this case: to strike those
portions of AS 4.16.050(e) that authorize a sentencing
judge to impose custodial in-patient treatment,
community work service, or any other penalty that would
trigger the rights to jury trial and court-appointed
counsel. We reject this suggestion for two reasons.
First, striking these provisions of the
statute would leave little of the legislatures intended
result. The legislature clearly wanted to subject
underage drinkers to rehabilitative efforts that might
include custodial in-patient treatment. They also
intended to punish and deter underage drinkers by
making them perform community work service. The
importance of these two sentencing goals is apparent
from the fact that in-patient treatment and community
work service are listed separately among the
permissible terms of probation in AS 4.16.050(e) and
(g).
Second, even if we followed the States
suggestion and struck the provisions of the statute
that authorize a sentencing judge to impose custodial
in-patient treatment and community work service for
first offenders, so that first offenders could be tried
and convicted without a jury trial and without counsel,
a major constitutional problem would remain. This
problem would surface if the offender was ever
prosecuted again under AS 4.16.050.
As explained above, we held in Pananen v.
State that a person can not be subjected to increased
criminal penalties as a repeat offender unless they
were accorded the right to counsel in the proceedings
that led to their prior conviction.27 If we were to
strike the major penalty provisions for first
offenders, so that first offenders could be tried
without counsel, Pananen says that the resulting
conviction could not be used to establish the offenders
status as a repeat offender in a subsequent
prosecution. Thus, the States suggestion would defeat
the legislatures scheme of increased penalties for
repeat and habitual offenders (as these terms are
defined in subsections (c) and (d) of AS 4.16.050).
Conclusion
The decision of the district court is
AFFIRMED. Auliye is entitled to a jury trial and, if
she is indigent, to court-appointed counsel.
_______________________________
1 See AS 4.16.050 & AS 4.16.180 as enacted in SLA 1980, ch.
131, 3, and as amended by SLA 1983, ch. 109, 8.
2 See AS 12.55.135(a).
3 See Minutes of the Senate Finance Committee for March 22,
1995, Minutes of the House Judiciary Committee for April 21,
1995, and Minutes of the House Finance Committee for May 3,
1995, all discussing SB 46.
4 See Minutes of the Senate Finance Committee for March 22,
1995, discussing SB 46.
5 See AS 28.15.183184 (as enacted in SLA 1994, ch. 71, 1).
6 See SLA 1995, ch. 81, 1.
7 See former AS 47.10.010(b)(5) (as enacted in SLA 1995, ch.
81, 5), now recodified as AS 47.12.030(b)(5).
8 See former AS 47.10.080(b), now recodified as AS
47.12.120(b).
9 Alexander v. Anchorage, 490 P.2d 910, 913 (Alaska 1971);
Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).
10 487 P.2d 27, 31-33 (Alaska 1971).
11 This aspect of AS 28.15.183 was changed in 1999; see
SLA 1999, ch. 88, 5. Under the current version of the
statute specifically, under subsection (i)(2) the minors
drivers license must be restored if the government does not
prosecute the minor for consuming or possessing alcoholic
beverages, or if the charge is dismissed, or if the minor is
acquitted at trial.
12 14 P.3d 264, 269-271 (Alaska 2000).
13 Id. at 272.
14 Enacted in SLA 2001, ch. 65, 1 and 2.
15 See AS 4.16.050(c) (repeat offenders) and 4.16.050(d)
(habitual offenders).
16 AS 4.16.050(g).
17AS 4.16.050(b)(1).
18See AS 12.55.085(a).
19AS 4.16.050(b)(1).
20Dodge v. Anchorage, 877 P.2d 270, 272 (Alaska App. 1994)
(citing Lock v. State, 609 P.2d 539 (Alaska 1980)); cf.
Hester v. State, 777 P.2d 217, 219 (Alaska App. 1989)
(the addition of thirty days in-patient treatment as a
condition of the defendants probation, when custodial
treatment was not specified in the original judgement,
constituted an illegal increase in the defendants
sentence when the in-patient treatment program
subjected the defendant to restraints equivalent to
custody).
21Booth, 903 P.2d at 1087-88.
22AS 4.16.050(e)(4).
23 Alvin v. State, 42 P.3d 1156, 1159-1160 (Alaska App.
2002); Joubert v. State, 926 P.2d 1191, 1193 (Alaska App.
1996) (quoting McRae v. State, 909 P.2d 1079, 1083 (Alaska
App. 1996)).
24 See Brown v. State, 559 P.2d 107, 111 n.13 (Alaska
1977); Bland v. State, 846 P.2d 815, 818 (Alaska App. 1993);
Alfred v. State, 758 P.2d 130, 131 (Alaska App. 1988).
25 See Websters New World Dictionary of American English
(Third College Edition, 1988), p. 937.
26 See Booth, 903 P.2d at 1088.
27 711 P.2d 528, 531-32 (Alaska App. 1985).
