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NOTICE
Memorandum decisions of this court do not create legal
precedent. See Alaska Appellate Rule 214(d) and
Paragraph 7 of the Guidelines for Publication of Court
of Appeals Decisions (Court of Appeals Order No. 3).
Accordingly, this memorandum decision may not be cited
as binding precedent for any proposition of law.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) Court of Appeals Nos. A-8872/A- 8888 |
| ) Trial Court Nos. 3PA-04-0735 CR; | |
| Petitioner, | ) 4FA-03-2713 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| SCOTT R. STAFFORD, and | ) |
| JEFFREY L. CASTREY, | ) |
| ) [No. 2031 February 3, 2006] | |
| Respondents. | ) |
| ) | |
Petitions for Review
from the District Court, Third Judicial
District, Palmer, David L. Zwink,
Magistrate, and Fourth Judicial District,
Fairbanks, Winston S. Burbank, Judge.
Appearances: Terisia K. Chleborad,
Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Gregg D. Renkes, Attorney General, and
Scott J. Nordstrand, Acting Attorney
General, Juneau, for the Petitioner. Margi
A. Mock, Assistant Public Defender, and
Barbara K. Brink, Public Defender,
Anchorage, for Respondent Stafford, and
William R. Satterberg Jr., Fairbanks, for
Respondent Castrey.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In 2001, the Alaska legislature toughened the
penalties for driving while under the influence by requiring
sentencing courts to count all a defendants prior drunk driving
convictions no matter how old in determining the defendants
mandatory minimum sentence. Before that time, the law had
counted only convictions within the previous ten years. But in
2004, the legislature concluded that the 2001 law was too harsh.
It therefore amended the law again, effective June 30, 2004.
Under the 2004 amendment, only an offenders convictions within
the previous fifteen years are to be counted in determining the
offenders mandatory minimum sentence. This 2004 amendment
reflected a policy judgment that individuals who had gone many
years without a drunk driving conviction should not be penalized
as harshly as offenders with more recent convictions.
The legislature specified that this change should go
into effect immediately that is, as soon as it was signed by the
governor. Otherwise, the legislature was silent as to exactly
who should benefit from the new law.
This consolidated petition for review raises one
question: whether defendants who committed their current drunk
driving offense before June 30, 2004, but are sentenced on or
after that date, should have their mandatory minimum sentences
calculated based on the new, more lenient law.
The parties have addressed this issue as one of
retroactivity. But we conclude that no issue of retroactivity is
presented in this case. Rather, for the reasons explained here,
we conclude that the date of sentencing is the pertinent date for
applying the new law to a particular defendants case. Thus, the
new law applies to all defendants sentenced on or after June 30,
2004.
Facts and proceedings
Scott R. Stafford was arrested for driving while under
the influence on March 21, 2004. He had four prior convictions
three of them within the previous fifteen years and one seventeen
years earlier, in 1987. Under the lifetime look-back for prior
convictions in effect at the time of his offense, he faced a
minimum sentence of 240 days to serve as a fifth offender.1
Under the new law, because his first conviction was more than
fifteen years old, he faced a mandatory minimum sentence of 120
days as a fourth offender.2
Jeffrey L. Castrey was arrested for drunk driving on
July 21, 2003. He had been convicted of drunk driving only once
before, in 1977 more than twenty-five years earlier. Under the
lifetime look-back in effect at the time of his offense, he faced
a mandatory minimum sentence of 20 days to serve as a second
offender.3 Under the new law, he would be a first offender, and
his mandatory minimum sentence would be 72 hours.4
Magistrate David L. Zwink presided over Staffords
sentencing hearing, and District Court Judge Winston S. Burbank
over Castreys. They both ruled in favor of the defendants,
concluding that the defendants mandatory minimum sentences should
be determined under the new law because they were still awaiting
sentencing on June 30, 2004, when that law went into effect.
We granted the States petitions for review of these
decisions. The State argues that only defendants who committed
their offense on or after the laws June 30, 2004, effective date
are subject to the new law. The respondents argue that they
should benefit from the new law because they will be sentenced
after the laws effective date.
Why we conclude that the fifteen-year look-back
applies to all defendants sentenced on or after June
30, 2004
As noted above, the 2004 amendment directed that the
new definition of previously convicted go into effect immediately
as soon as it was signed by the governor.5 Beyond this, the
legislature did not explain what it meant by immediately.
The State urges us to conclude that a sentencing law
that has immediate effect applies only to defendants who
committed their offenses on or after the new sentencing laws
effective date. In support of that argument, the State relies
heavily on AS 01.05.021. That statute was enacted in 1963 and
has never been changed. It reads:
(a) No fine, forfeiture, or penalty
incurred under laws existing before the time
the Alaska Statutes take effect is affected
by repeal of the existing law, but the
recovery of the fines and forfeitures and
the enforcement of the penalties are
effected as if the law repealed had still
remained in effect.
(b) In the case of an offense committed
before the time the Alaska Statutes take
effect, the offender is punished under the
law in effect when the offense was
committed. (Emphasis added).
The plain language of AS 01.05.021 indicates that it
was enacted as a saving statute for repealed laws enacted before
Alaska became a state.6 The State has cited no persuasive
authority for interpreting the statute more broadly to mean that
a defendant always must be punished under the law in effect at
the time of the offense, even if the legislature lessens the
penalty for the offense before the defendant is sentenced.
Indeed, the Alaska Supreme Courts decision in
Davenport v. McGinnis7 suggests that the States construction of
AS 01.05.021 is wrong. Davenport involved a juvenile who was
adjudged delinquent and committed to a juvenile facility for an
indeterminate period not to extend beyond his twenty-first
birthday.8 After his commitment, the law was amended to reduce
the maximum age of release upon indefinite commitment to nineteen
years.9 Davenport was released two weeks after his nineteenth
birthday, and he filed an action for damages for wrongful
imprisonment.10 In rejecting that claim, the supreme court
refused to give retrospective effect to the amendment reducing
Davenports allowable maximum sentence because Davenports final
judgment preceded the effective date of the amendment, and the
legislature had expressed no intent to apply the legislation
retrospectively.11 But before reaching this conclusion, the
supreme court noted a split of authority on the question of when
an offender should receive the benefit of an ameliorative change
in sentencing law. The court stated that [t]he sentence which
may be imposed upon a convicted adult is determined as of the
time of the final judgment of conviction, or as of the time of
commission of the offense.12 It added: We need not choose
between the time of commission of the criminal act and the time
of final judgment, since both antedated the effective date of the
amendment to the sentencing statute.13
In referencing this split of authority, the supreme
court cited its own earlier decision in P.H. v. State.14 In
P.H., the court had declared that as a general rule, the
punishment for an offense is governed by the law in effect at the
time the offense is committed.15 In Davenport, the supreme court
signaled that it was still an open question whether this general
rule applied to an ameliorative change to a sentencing law.16 In
noting this unresolved issue, the court made no mention of AS
01.05.021.
The trend in Alaska cases since Davenport has been to
acknowledge the general rule stated in P.H., while, in the
interests of justice and to comport with the legislatures
apparent intent, applying ameliorative sentencing provisions to
defendants not yet sentenced. In Zurfluh v. State,17 the supreme
court addressed legislation overturning a supreme court decision
declaring that courts had no authority to impose incarceration as
a condition of suspended imposition of sentence.18 At the time
Zurfluh committed his offense, Alaska courts commonly imposed
such sentences though apparently without statutory authority.19
But Zurfluh was sentenced during the 153-day period between when
the supreme court disallowed such sentences and the legislature
formally acted to authorize them.20 After noting that
retrospective application of statutes is generally barred under
AS 01.10.090, unless the legislature expressly provides for
retrospective effect, the court found an exception in Zurfluhs
case.21 The court explained:
The general rule of construction of
curative legislation is that retroactivity
will be ascribed to it more readily than to
that which may disadvantageously, though
legally, affect past relations and
transactions. 2 C. Sands, Sutherland
Statutory Construction 41.04 at 253 (4th
ed. 1973). The apparent intent of the
legislature [was] that the benefits of this
type of sentencing should be available to
trial judges as soon as possible and there
is nothing to indicate that the legislature
meant to discriminate against people who
were sentenced during the 153 days when
suspended imposition of sentence with a
period of incarceration was unavailable.
Based on this reading of legislative intent,
we hold that on remand the trial judge may
apply AS 12.55.086 when he reconsiders
Zurfluhs
sentence.[22]
The supreme court applied this same reasoning in Mangold v.
State.23
We have taken a similar view. In Sundberg v. State,24
the defendant on remand was sentenced to 8 years for his
conviction for grand larceny.25 He argued that this sentence was
excessive, pointing out that if he had been convicted under the
new criminal code which became effective about one month after
he committed his offense but before he was tried and sentenced26
he would have been charged with theft in the second degree, which
carried a maximum sentence of only 5 years.27
In light of the new criminal codes more lenient
treatment of Sundbergs offense, Sundbergs claim caused us some
concern.28 We noted that [a] number of cases stand for the
proposition that when a defendant is tried and the judgment and
sentence entered, subsequent to an amendment to a statute
reducing the penalty for the crime for which he is convicted, he
should be entitled to the benefit of the lesser penalty rather
than the penalty in effect at the time the offense was
committed.29 In particular, we cited the following language from
State v. Tapp,30 a Utah Supreme Court decision:
There are several considerations which in
our mind tend to support our conclusion that
where an enactment reducing the penalty for
an offense has become effective prior to the
conviction, a defendant is entitled to the
benefit thereof by having penalty imposed in
accordance with the law at the time of the
sentence. The first of these is that it is
the prerogative of the legislature,
expressing the will of the people, to fix
the penalties for crimes; and the courts
should give effect to the enactment and the
effective date thereof as so declared.
There are some other fundamental principles
engrained in our law which, though not
directly controlling on the problem at hand
are generally in harmony with the policy
considerations which lead to the conclusion
we have reached herein. One of these is
that to insist on the prior existing harsher
penalty is a refusal to accept and keep
abreast of the process which has been
continuing over the years of ameliorating
and modifying the treatment of antisocial
behavior by changing the emphasis from
vengence and punishment to treatment and
rehabilitation. In the same tenor are time-
honored rules of the criminal law generally
favorable to one accused of a crime: that
in case of doubt or uncertainty as to the
degree of the crime, he is entitled to the
lesser; and correlated thereto: that as to
an alternative between a severe or lenient
punishment, he is entitled to the
latter.[31]
In Sundberg, we found that the legislature had
expressly declared that the new criminal code did not apply to
offenses committed before its effective date and ruled, in
conformity with Tapp, that this legislative intent should
control.32 Nevertheless, we declared that while not binding on
the trial court, the new code does give an indication of current
legislative intent and, absent factors in a specific case
warranting a harsher sentence, the defendant should be sentenced
within the range of sentences provided by the new code, at least
to the extent that his conduct corresponds exactly to conduct
prohibited by a specific provision, or provisions of the new
code.33 In Sundbergs case, we found that the defendants
repetitive criminality justified the more severe sentence.34
Sundberg foreshadowed our decision in Helton v.
State.35 In Helton, we addressed how an amendment to the statute
governing good-time credit for incarcerated offenders should be
applied to offenders who were sentenced and incarcerated before
the change in law but who were subsequently re-sentenced. The re-
sentenced defendants sought to have the new law, which increased
their good-time credit, applied to their whole sentences, even
though their sentences had been partially served before the
amendments effective date.36 We concluded that the plain
language of the amendment provided that all offenders sentenced
to imprisonment after the amendments effective date of April 9,
1986, were entitled to the benefits of the new law.37 The State
argued that we should disregard the plain meaning of the statute
because retrospective application of the new law would violate
the states general saving statutes.38 The State argued, as it
does here, that the saving statutes, and prior Alaska criminal
cases, dictated that the significant date for determining whether
a statute is being retrospectively applied is the date of the
offense.39 The State relied in large part on AS 01.10.100(a),
which provides:
The repeal or amendment of a law does not
release or extinguish any penalty,
forfeiture, or liability incurred or right
accruing or accrued under that law, unless
the repealing or amending act so provides
expressly. The law shall be treated as
remaining in force for the purpose of
sustaining any proper action or prosecution
for the enforcement of the right, penalty,
forfeiture, or liability.
We rejected the States argument, reasoning as follows:
The cases relied on by the state for the
proposition that the date of the offense is
controlling involve the retrospective
application of statutes whose effect was to
deprive the defendant of substantive rights
that have been deemed to accrue at the time
of the offense. Such retrospective
application is clearly prohibited under AS
01.10.100(a), because it extinguishes a
right [already] accruing or accrued under a
former law.
In contrast, application of the amended
good-time credit statute to prisoners
incarcerated before April 9, 1986, does not
extinguish any right accrued prior to the
amendment. Instead, the statute confers
additional rights, augmenting the benefits
previously accrued and received. For
purposes of determining retrospectivity, the
significant date, by the plain language of
the statute itself, is not the date of the
offense but rather the date of sentencing.
Moreover, although increasing good-time
credit will generally decrease the amount of
time a prisoner must actually serve, this
does not amount to extinguishing an existing
penalty. As penalties are imposed at the
time of sentencing, a prisoner sentenced
after April 9, 1989, cannot be said to have
accrued penalties prior to the effective date of the
statute.[40]
For these and other reasons, we held that the State had failed to
meet its heavy burden to prove that the legislature intended the
amendment to be interpreted other than as its plain meaning
suggested.41
In light of the case law we have just discussed, we
cannot presume that the legislature, by making the fifteen-year
look-back immediately effective but otherwise remaining silent,
intended the date of the offense, as opposed to the date of
sentencing, to be controlling, as Alaska law has not been settled
on this point. Our review of the legislative history and the
pertinent cases now persuades us to join those jurisdictions that
have held that a defendant should receive the benefit of an
ameliorative sentencing law in effect at the time he is
sentenced, unless the legislature intended a contrary result.42
The rule of lenity favors this conclusion. As we have stated:
If a statute establishing a penalty is susceptible of more than
one meaning, it should be construed so as to provide the most
lenient penalty.43
We therefore construe the legislatures decision to
make the repeal of the lifetime look-back immediately effective,
and to omit any language limiting the new fifteen-year look-back
to offenses committed on or after that immediate effective date,
as evidence that the legislature wished the new law to be applied
as soon and as broadly as possible, without extinguishing
penalties imposed under the old sentencing law. Because the new
definition of previously convicted imposes no burden on a
defendants substantive rights, our ruling does not violate the
prohibition against ex post facto laws.44 We also find no
statutory bar to this result. Because penalties do not accrue
until sentencing, no penalty is extinguished under AS
01.10.100(a) when a defendant is sentenced under a law that is
more lenient than the law in effect at the time he committed his
offense.45 We further find that AS 01.05.021 is not controlling
here. That statute, by its plain language, was enacted as a
saving statute for repealed laws enacted before Alaska became a
state. We have found no persuasive authority to support a
broader reading.
The State argues that the rule we adopt today will
invite offenders to manipulate the process by delaying sentencing
in the hope of benefitting from an ameliorative change in
sentencing law as Castrey apparently did in this case. We note
that the State stipulated to the sentencing delay in Castreys
case. In any event, as we observed in Helton, whenever a
legislative amendment takes effect on a fortuitous date,
fortuitous results are inevitable.46
Conclusion
The decisions of the district court are AFFIRMED.
Courts determining a defendants mandatory minimum sentence based
on the definition of previously convicted in AS 28.35.030 are
directed to apply the statute in effect on the date the defendant
is sentenced.
_______________________________
1 Former AS 28.35.030(b)(1)(E) & AS 28.35.030(r)(4) (prior
to 2004 amendment).
2 AS 28.35.030(b)(1)(D) & AS 28.35.030(t)(4).
3 Former AS 28.35.030(b)(1)(B) & AS 28.35.030(r)(4) (prior
to 2004 amendment).
4 AS 28.35.030(b)(1)(A) & AS 28.35.030(t)(4).
5 Ch. 126, 8, SLA 2004; see also AS 01.10.070(c) (providing
that statutes that have an immediate effect date become effective
at 12:01 a.m. on the day after the governor signs the bill into
law).
6 Under the common law, the repeal of a criminal statute
resulted in the abatement of all prosecutions under that law that
were not final, unless the legislature included a special
provision to save prosecutions under the repealed statute.
Holiday v. United States, 683 A.2d 61, 66-67 (D.C. App. 1996).
This was the case even when laws were amended or reenacted, as
those revisions effectively repealed the underlying statute.
Most states enacted general saving statutes to prevent the
inadvertent abatement of criminal prosecutions. These statutes
shifted the common-law presumption that repealed statutes would
be abated unless the legislature specified otherwise to one of
non-abatement in the absence of contrary legislative direction.
Id. (quoting Comment, Todays Law and Yesterdays Crime:
Retroactive Application of Ameliorative Criminal Legislation, 121
U. Pa. L. Rev. 120, 127 (November 1972)).
7 522 P.2d 1140 (Alaska 1974).
8 Id. at 1141.
9 Id. at 1141 & n.1.
10 Id. at 1141.
11 Id. at 1142.
12 Id. (footnotes omitted).
13 Id.
14 Id. at 1142 n.6. (citing P.H. v. State, 504 P.2d 837
(Alaska 1972), superseded by statute on other grounds as stated
in Matter of F.S., 586 P.2d 607 (Alaska 1978)).
15 504 P.2d at 841.
16 522 P.2d at 1142 & n.5, n.6.
17 620 P.2d 690 (Alaska 1980).
18 Id. at 692-93.
19 Id. at 693.
20 Id.
21 Id.
22 Id. (footnotes omitted).
23 613 P.2d 272, 277 (Alaska 1980) (remanding to allow re-
sentencing on this ground); see also Zurfluh, 620 P.2d at 693 n.5
(noting that the reasoning in Zurfluh applies equally to
Mangold).
24 Sundberg II, 652 P.2d 113 (Alaska App. 1982).
25 Id. at 114-15.
26 Sundberg I, 636 P.2d 619, 620 (Alaska App. 1981);
Sundberg II, 652 P.2d at 115 (majority opinion), 117 (Coats, J.,
dissenting).
27 Sundberg II, 652 P.2d at 115.
28 Id.
29 Id. (citing In re Estrada, 408 P.2d 948 (Cal. 1965) and
State v. Tapp, 490 P.2d 334 (Utah 1971)).
30 490 P.2d 334.
31 Id. at 335-36 (footnotes omitted in original).
32 Sundberg II, 652 P.2d at 116.
33 Id.; see also Whittlesey v. State, 626 P.2d 1066, 1068
(Alaska 1980) (stating that sentencing provisions in the new
criminal code were useful and relevant in the determination of an
appropriate sentence even though not binding in Whittleseys
case); Bolhouse v. State, 687 P.2d 1166, 1174 (Alaska App. 1984)
(in applying the Austin rule, finding it appropriate to consider
recent amendments to the statutes increasing the presumptive
terms).
34 Sundberg II, 652 P.2d at 116.
35 778 P.2d 1156 (Alaska App. 1989).
36 Id. at 1157.
37 Id. at 1158.
38 Id. at 1159.
39 Id. at 1158.
40 Id. at 1159; see also Tapp, 490 P.2d at 336 (concluding
that a defendant incurs no penalty until sentencing, and that no
penalty is affected in violation of Utahs saving statute if the
defendant is subject to the more lenient law in effect at the
time of his sentencing).
41 Helton, 778 P.2d at 1160.
42 See, e.g., Estrada, 408 P.2d at 953 (A legislative
mitigation of the penalty for a particular crime represents a
legislative judgment that the lesser penalty or the different
treatment is sufficient to meet the legitimate ends of the
criminal law ... . [I]t is safe to assume, as the modern rule
does, that it was the legislative design that the lighter penalty
should be imposed in all cases that subsequently reach the
courts.); Litsey v. District Court, 565 P.2d 1343, 1344 (Colo.
1977) (defendant was entitled to the benefit of change in law
reducing look-back for prior convictions in habitual criminal
statute from lifetime to ten years because the defendants
conviction was still on appeal; where amendatory legislation
mitigates penalties for crimes, one convicted of those crimes is
entitled to the benefits of that legislation if relief is sought
before finality has attached to the conviction); State v. Von
Geldern, 638 P.2d 319, 322-23 (Haw. 1981) (ameliorative purpose
of law giving courts discretion to depart from mandatory minimum
sentences and legislatures established pattern of conduct
demonstrated intent to apply law to defendants whose appeals were
still pending); Elkins v. State, 659 N.E.2d 563, 565 (Ind. App.
1995) (when a defendant is found guilty of an offense, he is to
be sentenced in accordance with the statute in force at the time
the offense was committed unless an amendment to the statute is
effective prior to sentencing and the amendment provides for an
ameliorative penalty; defendant was therefore entitled to the
benefit of a more lenient habitual offender statute in effect at
the time of sentencing); State v. Wiese, 201 N.W.2d 734, 737
(Iowa 1972) (ameliorative sentencing statute applied to
defendants cases because valid final judgments had not been
entered as of the effective date of the new statute); People v.
Schultz, 460 N.W.2d 505, 509-10 (Mich. 1990) (inferring from
ameliorative purpose of new sentencing law a legislative intent
to apply the new law to cases pending in the trial court and on
direct appeal); State v. Coolidge, 282 N.W.2d 511, 514 (Minn.
1979) (a statute mitigating punishment is applied to [all] acts
committed before its effective date, as long as no final judgment
has been reached); State v. Wilson, 926 P.2d 712, 716 (Mont.
1996) (defendant is entitled to be sentenced under an
ameliorative statute in effect on the date of sentencing if the
repealing statute contains no saving clause); State v. Randolph,
183 N.W.2d 225, 228 (Neb. 1971) (where a criminal statute is
amended by mitigating the punishment, after the commission of a
prohibited act but before final judgment, the punishment is that
provided by the amendatory act unless the Legislature has
specifically provided otherwise); In re Smigelski, 154 A.2d 1, 8
(N.J. 1959) (when a statute is ameliorative it may be applied
retroactively); People v. Oliver, 134 N.E.2d 197, 201 (N.Y. 1956)
(where an ameliorative statute takes the form of a reduction of
punishment for a particular crime, the law is settled that the
lesser penalty may be meted out in all cases decided after the
effective date of the enactment, even though the underlying act
may have been committed before that date); State v. Pardon, 157
S.E.2d 698, 702 (N.C. 1967) (When ... the law under which a
defendant was convicted is amended pending appeal so as to
mitigate the punishment, it is logical to assume that the
legislature intended the new punishment, which it now feels fits
the crime, to apply whenever possible.); State v. Cummings, 386
N.W.2d 468, 472 (N.D. 1986) (defendant was entitled to benefit of
statute that went into effect after his offense but before his
sentencing; unless otherwise indicated by the Legislature, an
ameliorating amendment to a criminal statute is reflective of the
Legislatures determination that the lesser punishment is the
appropriate penalty for the offense); State v. Macarelli, 375
A.2d 944, 947 (R.I. 1977) (defendants whose cases were not final
prior to enactment of ameliorative statute should be accorded the
more lenient treatment; to hold otherwise would contravene the
obvious legislative purpose behind the mitigation of the
penalty); Tapp, 490 P.2d at 335-36 (where enactment reducing the
penalty for an offense has become effective prior to the
conviction, defendant is entitled to the benefit thereof by
having penalty imposed in accordance with the law at the time of
the sentence); see generally Comment, Todays Law and Yesterdays
crime: Retroactive Application of Ameliorative Criminal
Legislation, 121 U. Pa. L. Rev. 120 (November 1972).
43 State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985),
opinion adopted by State v. Andrews, 723 P.2d 85, 86 (Alaska
1986); see also Wells v. State, 706 P.2d 711, 713 (Alaska App.
1985) (It is well established that, in accordance with the rule
of lenity, ambiguities in penal statutes must be resolved in
favor of the accused.).
44 See Helton, 778 P.2d at 1159.
45 Id.
46 Id. at 1160.
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