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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| KRYSTAL R. ALLEN, | ) |
| ) Court of Appeals No. A-9580 | |
| Appellant, | ) Trial Court No. 3AN-04-10589CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) [No. 2121 - October 12, 2007] |
| ) | |
Appeal from the
District Court, Third Judicial District,
Anchorage, John R. Lohff, Judge.
Appearances: Michael B. Logue, Gorton, Logue
& Graper, Anchorage, for the Appellant.
Christina Otto, Assistant Municipal
Prosecutor, and Frederick H. Boness,
Municipal Attorney, Anchorage, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, dissenting.
Krystal R. Allen pleaded no contest to two counts of
cruelty to animals. She was sentenced to a 30-day term to serve
and was placed on probation for 10 years. One of the conditions
of Allens probation prohibits her from possessing any animals
other than her sons dog. Allen argues that the district court
abused its discretion by imposing this condition of probation
because it will frustrate her rehabilitation.
The Municipality argues that, by statute, this Court
has no jurisdiction to hear this appeal because Allen was
sentenced to fewer than 120 days to serve. We conclude that we
do have jurisdiction to decide Allens claim. We also conclude
that the district court did not abuse its discretion by
restricting Allens possession of animals during the term of her
probation. We therefore affirm Allens sentence.
Facts and proceedings
On October 6, 2004, the Anchorage Police Department and
the Anchorage Animal Care and Control Center responded to
complaints of a foul odor coming from Allens home.
At Allens sentencing hearing, Lucius Burns, the lead
enforcement officer for Animal Control, testified that the home
smelled of cat urine to the point where it literally burnt your
throat. There were approximately forty cats in the kitchen, and
the floor was covered with debris and animal fecal matter. There
were more cats in kennels downstairs a total of approximately
180 to 200 cats in the home. There were also three dogs,
thirteen birds, and three chickens. Burns stated it was
probably the foulest environment Ive been in dealing with cats.
The majority of the cats were emaciated, had ulcerated injuries
on their eyes and upper respiratory infections, and were not
socialized to people.
Anchorage Police Officer Jackie Valdez testified that
the home was filthy and unsafe for people or animals. There was
rotten meat dripping out of a refrigerator. Cats were locked in
bedrooms and kennels, and some were even inside the ceiling.
There was no clean drinking water and little food.
Dr. Myra Wilson, a veterinarian and manager of Animal
Control, testified that, while the three dogs appeared well-fed,
the birds did not have food or water and their perches were
smeared with feces. When they were given food and water, the
birds ate and drank continuously for more than twenty minutes.
Many of the birds did not have sufficient muscle mass, and most
had an avian herpes virus. Wilson testified that this was the
most serious case she had encountered in her five years at Animal
Control in terms of the number of animals involved.
Allen was charged with one count of cruelty to animals
for abusing an animal, two counts of cruelty to animals for
maintaining an animal in an inhumane manner, and one count of
tampering with official proceedings.1 Allen pleaded no contest
to the two counts of cruelty to animals for maintaining animals
in an inhumane manner, and the Municipality dismissed the other
two counts.
During sentencing, Allen emphasized the progress she
had made toward rehabilitation. She did not dispute the
Municipalitys evidence on the condition of the animals and the
home. Nor did she dispute that she had a history of cruelty to
animals. During the trial, Wilson testified that Animal Control
had documented similar conditions in Allens home in 1990, 1994,
1997, and 1999. And in 1990 and 1995, Allen was convicted of
cruelty to children and charged with, but not prosecuted for,
cruelty to animals.
Judge Lohff found that the harm that occurred to the
animals [was] horrendous ... . They suffered horribly, many of
them. He found the case to be a worst offense. And, while he
considered Allens efforts at rehabilitation, he also considered
Allens history of cruelty to animals.
Judge Lohff imposed 360 days with 330 days suspended on
the first count of animal cruelty, 360 days with 360 days
suspended on the second count, and a 10-year term of probation.
He prohibited Allen from having any animal in her care, custody,
control, or ownership during her term of probation, other than
her sons dog. In discussing this probation condition, Judge Lohff
noted the lack of animal control probation supervisors and the
practical difficulties of enforcement if Allen were allowed to
have animals. Allen appeals the imposition of this probation
condition.
Discussion
Why we have jurisdiction over this appeal
The Municipality begins by arguing that we do not have
jurisdiction to hear this appeal because Allen was only sentenced
to 30 days of unsuspended incarceration. The Municipality argues
that, under AS 22.07.020(c), we only have jurisdiction to review
misdemeanor sentences that exceed 120 days to serve.
We have previously held that AS 22.07.020(c) does not
limit our authority to review a claim that a sentence is illegal,
regardless of the length of that sentence.2 But Allen is not
claiming that her sentence is illegal; she claims that the
district court abused its discretion under the Chaney sentencing
criteria by imposing a 10-year probation condition that limits
her possession of animals.3 Her claim is therefore a sentence
appeal for purposes of AS 22.07.020(c)(2) an appeal in which the
defendants sole assertion of error is that the sentencing judge
abused his or her discretion by imposing too severe a sentence.4
We thus must decide whether AS 22.07.020(c)(2) prohibits us from
considering any sentence appeal by a defendant whose term of
imprisonment does not exceed 120 days, or whether the statute
only prohibits us from considering sentence appeals that
challenge that term of imprisonment as excessive.
The supreme court has inherent jurisdiction to review
criminal sentences.5 We, however, are a statutory court and can
only consider cases if we have been granted jurisdiction by the
legislature.6
Our jurisdiction to hear misdemeanor sentence appeals
is established by AS 22.07.020(c), which provides:
The court of appeals has jurisdiction to
review ... (2) the final decision of the
district court on a sentence imposed by it if
the sentence exceeds 120 days of unsuspended
incarceration
for a misdemeanor offense.
This jurisdiction statute incorporates the limitation
on sentence appeals codified in AS 12.55.120(a).7 That statute
grants defendants the right to appeal [a] sentence of
imprisonment exceeding 120 days for a misdemeanor offense ... on
the ground that the sentence is excessive.
In Richardson v. State,8 we considered whether AS
12.55.120(a) limits sentence appeals to appeals that challenge
the term of imprisonment as excessive.9 That statute does not
mention whether a defendant can appeal other terms of a sentence,
such as the amount of a fine, conditions of probation, or license
revocation.10 Accordingly, the State argued in Richardson that we
only had jurisdiction to consider sentence appeals that
challenged the term of imprisonment.11
In considering this argument, we recognized that the
legislative history of AS 12.55.120 is silent on sentence appeals
that involve matters other than terms of imprisonment.12 But we
reasoned that, because defendants often challenge both the length
of their prison term and other aspects of their sentence,
unnecessary administrative difficulties would result if we
decided claims involving terms of imprisonment while the supreme
court had discretion to review all other sentencing claims.13 We
therefore held that, in the absence of any affirmative indication
that the legislature intended to split jurisdiction in this way,
defendants who received unsuspended terms of imprisonment
exceeding the statutory level could appeal any aspect of their
sentence to this court.14
We are now faced with the question of whether we have
jurisdiction to consider these types of claims (i.e., claims that
do not involve a challenge to the term of imprisonment) when the
term of imprisonment does not meet the statutory level.
We conclude that we have jurisdiction to review this
type of claim. We begin by noting that we have not been
consistent on whether we have jurisdiction to consider excessive
sentence claims when the term of imprisonment is below the
statutory level. In one opinion, Haggren v. State,15 and at least
two memorandum opinions, we have held that we did not have
jurisdiction to consider excessive sentence claims involving
fines and forfeitures because the defendants had not received an
unsuspended term of imprisonment that exceeded the statutory
level.16 But in other cases we have
considered these types of claims.17 For example, in Jordan v.
State,18 we considered Jordans claim that the forfeiture of his
airplane was an excessive sentence even though Jordan had not
been sentenced to any term of unsuspended incarceration.19 In
Kelley v. State,20 a memorandum opinion, we considered Kelleys
claim that his sentence a $15,000 fine with $7500 suspended and
forfeiture of his $3000 share of the profit from the illegally
caught fish was excessive.21 (Chief Judge Bryner concurred in
the result in Kelley but argued that the court did not have
jurisdiction to consider the claim.22) And in Mahan v. State,23
another animal cruelty case, we addressed the defendants
challenges to her term of probation, the conditions of her
probation, and the amount of restitution ordered, even though her
1-year prison term was suspended.24 We believe that this line of
cases is correct and that we have jurisdiction to consider non-
term-of-imprisonment sentence appeals (e.g., appeals challenging
probation conditions, fines, forfeitures, and license
revocations) regardless of the term of imprisonment imposed by
the lower court.
When we interpret a statute, we presume that the
legislature intended every word, sentence, or provision of a
statute to have some purpose, force, and effect, and that no
words or provisions are superfluous.25 But [s]trict construction
does not require that statutes be given the narrowest meaning
allowed by the language; rather, the language should be given a
reasonable or common sense construction, consonant with the
objectives of the legislature. The intent of the legislature must
govern and the policies and purposes of the statute should not be
defeated.26
As noted above, AS 22.07.020(c) states that this court
has jurisdiction over the final decision of the district court on
a sentence imposed by it if the sentence exceeds 120 days of
unsuspended incarceration for a misdemeanor offense. And AS
12.55.120(a) grants defendants the right to appeal [a] sentence
of imprisonment exceeding 120 days for a misdemeanor offense ...
on the ground that the sentence is excessive. The plain language
of these statutes appears to limit our jurisdiction to challenges
to terms of imprisonment that exceed 120 days for a misdemeanor
offense.
However, as in Richardson, we have not found any
legislative discussion of sentence appeals that do not concern
terms of imprisonment, either in 1980 when this court was created
or in 1995 when the legislature amended AS 12.55.120 and AS
22.07.020 to limit misdemeanor sentence appeals to terms of
imprisonment exceeding 120 days.27 The transmittal letter from
the governor for the 1995 legislation did not mention sentence
appeals involving claims other than challenges to the term of
imprisonment:
[The sections amending AS 12.55.120 and AS
22.07.020] restrict defendants convicted of
misdemeanors from appealing as excessive a
sentence of 120 days or less.[28]
The committee discussions were likewise limited to sentence
appeals involving terms of imprisonment.29 We presume the
legislature was aware of the inconsistency of our prior decisions
when it debated the 1995 amendments, and we do not believe it
would have been silent on sentence appeals challenging probation
conditions, fines, forfeitures, and license revocation, if it
had intended to eliminate our jurisdiction over those appeals in
all cases involving sentences of 120 days or less.
In the absence of an affirmative indication from the
legislature, we do not believe the legislature intended to allow
a defendant with a 121-day sentence to appeal a potentially
onerous penalty (such as a 20-year revocation of a drivers
license) to this court but to limit a defendant with a 120-day
sentence to discretionary review by the supreme court on the same
claim.30 And, as we reasoned in Richardson, having this court
decide a claim that a probation condition is illegal while
leaving to the supreme court discretionary review over whether
the same probation condition was an abuse of discretion would
result in unnecessary administrative difficulties.31
For this reason, we find that AS 22.07.020(c) grants us
jurisdiction over all sentence appeals from a district court
except for those that challenge as excessive a term of
imprisonment of 120 days or less. Any holding to the contrary is
hereby overruled.32
Why we find the court did not abuse its discretion by
imposing the
probation condition
Allen argues that the court abused its discretion by
forbidding her from possessing any animals other than her sons
dog during her 10-year term of probation. We review the courts
imposition of a probation condition for abuse of discretion.33
We have consistently upheld conditions of probation
restricting the defendant from engaging in the activity that
formed the basis for the underlying conviction.34 And, although
we have not directly resolved a challenge to a probation
condition imposing limits on the possession of animals, we have
held that it was not facially unreasonable to restrict a
defendant who was convicted of cruelty to animals from owning
more than one animal and from owning a horse.35
Here, the court found that the animals suffered
horribly, that this was a worst offense, and that Allen had a
history of cruelty to animals. Given these facts, prohibiting
Allen from possessing animals during the term of her probation
was reasonably related to her rehabilitation and to protecting
the public and was not unduly restrictive of her liberty.36 The
district court was therefore justified in imposing the probation
condition.
Allens main complaint is that the court did not mention
these factors when it discussed the probation condition.
Instead, the court noted the lack of animal control probation
supervisors and the practical realities of supervising Allens
possession of animals. However, it appears from the record that
the court considered rehabilitation, protection of the public,
and the reasonableness of restrictions on Allens liberty along
with the practical realities of enforcing the probation
condition. The court simply did not repeat these findings when
it discussed the probation condition and explained why monitoring
Allens possession of animals was not feasible.
We conclude that the court did not abuse its discretion
by prohibiting Allen from possessing animals, other than her sons
dog, while on probation.
Conclusion
Allens sentence is AFFIRMED.
MANNHEIMER, Judge, dissenting.
Krystal Allen was convicted of cruelty to animals. As
a condition of Allens probation, the district court prohibited
her from possessing any animals (other than the dog currently
belonging to her son). Allen asks us to overturn this condition
of her probation.
As the facts recited in the majority opinion
demonstrate, the challenged condition of probation appears to be
eminently justified. However, the real question in this case is
whether Allen is entitled to ask this Court to review the
district courts decision.
For the reasons explained here, I conclude that Allen
does not have the right to appeal her sentence to this Court
(although she has the right to petition the supreme court for
discretionary review of her sentence). I therefore dissent from
my colleagues decision to adjudicate the lawfulness of Allens
probation condition.
An overview of Alaska law governing appellate
review of criminal sentences
Under Alaska law, criminal
defendants have an undoubted right to appeal
their sentences on the ground that illegality
occurred in the sentencing process i.e.,
that the sentencing proceedings were
irregular, or that the sentencing judge erred
when making pertinent factual or legal
rulings, or that the sentence itself is
illegal. Hillman v. Anchorage, 941 P.2d 211,
213, 215 (Alaska App. 1997); Rozkydal v.
State, 938 P.2d 1091, 1093-94 (Alaska App.
1997). However, Alaska law restricts a
defendants right of sentence appeal a
technical term that refers to a defendants
right to appeal a lawfully imposed sentence
on the sole ground that one or more
provisions of the sentence constitute an
abuse of sentencing discretion. Rozkydal,
938 P.2d at 1093-94.
The restrictions on the right of
sentence appeal are codified in Alaskas
sentence appeal statute, AS 12.55.120.
Subsection (a) of this statute is the portion
that governs misdemeanor sentence appeals to
this Court. The pertinent part of this
subsection reads:
(a) A sentence of imprisonment lawfully
imposed ... for a term or for aggregate terms
... exceeding 120 days [of unsuspended
incarceration] for a misdemeanor offense may
be appealed to the court of appeals by the
defendant on the ground that the sentence is
excessive ... .
The first step in deciphering this
language is to draw a distinction between the
right of appeal (i.e., the right to demand
appellate review) and the right to petition
(i.e., the right to ask an appellate court to
exercise its power of discretionary review).
As this Court explained in
Rozkydal, 938 P.2d at 1094-95, Alaskas
sentence appeal statute places restrictions
on a defendants right to appeal a sentence on
the sole ground that it is excessive (i.e.,
that the judges decision constitutes an abuse
of sentencing discretion). However, even
when a defendant is barred from appealing a
sentence on this ground, a defendant still
has the right to raise such a claim in a
petition for discretionary sentence review.
We reached this conclusion in
Rozkydal because the sentence appeal statute
does not purport to limit a defendants right
to seek discretionary appellate review of a
sentence, because Alaska Appellate Rule
215(a) declares that the supreme court has
the authority to engage in discretionary
review of any sentence that is not
appealable, and because, in State v. Browder,
486 P.2d 925, 930-31 (Alaska 1971), the
supreme court suggested that it has the
constitutional authority to review (at the
courts discretion) any ruling in any criminal
case.
Thus, the truth of the matter is
that every defendant in Alaska has the right
to seek appellate review of their sentence on
the ground that it is excessive. The effect
of our sentence appeal statute is not to
limit appellate review of sentences, but
rather to define the manner in which that
appellate review is invoked and conducted.
Defendants who are given a right of
sentence appeal under AS 12.55.120 can demand
appellate review of their sentences; that is,
the appellate court is obliged to entertain
the defendants sentence appeal and to decide
the merits of the appeal. Defendants who are
not given the right of sentence appeal under
AS 12.55.120 can still seek appellate review
of their sentences, but they must petition
the appellate court to exercise its power of
discretionary review which means that the
appellate court can decline the petition
without ordering preparation of a record and
normal briefing, and without ever deciding
the underlying merit of the defendants
claims.
There is one final aspect of the
situation that must be mentioned at this
point. The Alaska Legislature has given this
Court jurisdiction to hear sentence appeals
brought by criminal defendants, but the
legislature has not given this Court
jurisdiction to hear sentence petitions
brought by criminal defendants. Because of
this, defendants who have a right of sentence
appeal under AS 12.55.120 can bring their
appeal to this Court, but all other
defendants that is, the defendants whose
remedy is a petition for sentence review
must present their petition to the supreme
court. See Rozkydal, 938 P.2d at 1098.
A closer examination of AS 12.55.120(a), the
portion of Alaskas sentence appeal statute
that governs Allens case, and this Courts
prior decisions interpreting that statute
I now return to AS 12.55.120(a),
the portion of the sentence appeal statute
that governs misdemeanor sentence appeals to
this Court. This portion of the statute
declares:
A [lawfully imposed] sentence of
imprisonment ... exceeding 120 days [of
unsuspended incarceration] for a misdemeanor
offense may be appealed to the court of
appeals ... on the ground that the sentence
is excessive[.]
As can be seen, a defendants right
of appeal is restricted by the phrase a
sentence of [unsuspended] imprisonment ...
exceeding 120 days. This provision is
ambiguous; the statute could potentially mean
three different things.
First, the statute might be
construed narrowly, by having the phrase
sentence of imprisonment define the sole
aspect of a sentence that can be appealed.
In other words, the statute could potentially
mean that a misdemeanor defendant can appeal
a sentence of imprisonment that exceeds 120
days to serve, but that the defendant has no
right to appeal any other aspect of their
sentence.
(See AS 22.10.020(f), the related
statute that defines the superior courts
sentence appeal jurisdiction. The wording of
this statute comes closest to embodying this
narrow construction of the right of sentence
appeal. AS 22.10.020(f) declares: An appeal
may be taken [from the district court] to the
superior court on the ground that an
unsuspended sentence of imprisonment
exceeding 120 days was excessive[,] and the
superior court ... has the power to reduce
the sentence.)
Second, the phrase sentence of
imprisonment ... exceeding 120 days might
constitute a threshold that triggers the
right of sentence appeal. In other words,
the statute could potentially mean that a
misdemeanor defendant can appeal any aspect
of their sentence so long as the imprisonment
portion of the sentence exceeds 120 days to
serve.
Third, the phrase sentence of
imprisonment ... exceeding 120 days could
conceivably be interpreted as a specific
restriction on a defendants otherwise general
right to pursue a sentence appeal. In other
words, the statute could potentially mean
that a misdemeanor defendants right to appeal
the imprisonment portion of their sentence
hinges on whether the defendant received more
than 120 days to serve, but that misdemeanor
defendants otherwise have an unrestricted
right to appeal any other aspect of their
sentence.
Fifteen years ago, in Haggren v.
State, 829 P.2d 842 (Alaska App. 1992), we
partially resolved this ambiguity by
rejecting the third potential interpretation
described above. That is, we interpreted
AS 12.55.120(d) to mean that defendants who
receive less than the specified amount of
unsuspended imprisonment have no right to
appeal other aspects of their sentence.
Here is the pertinent portion of
our opinion in Haggren. (At the time Haggren
was decided, the threshold amount of time to
serve was 45 days rather than the current 120
days.)
Haggrens final argument on appeal is
that his sentence is excessive. [The
district court] sentenced Haggren to a fine
of $6,000 with $2,700 suspended. [The court]
also ordered Haggren to pay a forfeiture of
$1,700, representing the fair-market value of
the fish Haggren caught while fishing in
violation of the regulation. Because Haggren
was not sentenced to a term of imprisonment
of at least 45 days, he has no right to
appeal his sentence. Johnson v. State, 816
P.2d 220 (Alaska App. 1991).
Haggren, 829 P.2d at 845.
Then, five years ago, in Richardson
v. State, 47 P.3d 660, 663-64 (Alaska App.
2002), this Court resolved the remaining
statutory ambiguity by adopting the second
potential interpretation described above.
That is, we held that AS 12.55.120(a) gives
misdemeanor defendants the right to appeal
any aspect of their sentence, so long as the
defendant received more than 120 days of
unsuspended incarceration.
My colleagues decision to overrule Haggren,
and the requirements imposed by the doctrine
of stare decisis
In the present case, my colleagues
have decided to overrule the interpretation
of AS 12.55.120(a) that this Court adopted in
Haggren.
As explained above, Haggren holds
that the statutory phrase sentence of
imprisonment ... exceeding 120 days
constitutes a threshold that triggers a
misdemeanor defendants right of sentence
appeal. That is, a misdemeanor defendant has
no right to appeal any aspect of their
sentence unless the imprisonment portion of
their sentence exceeds 120 days to serve.
Allens brief to this Court does not
address this jurisdictional issue. She
simply presents her sentence appeal argument
and ignores the jurisdictional problem. The
Municipality, on the other hand, raises the
jurisdictional issue and expressly relies on
Haggren for the proposition that Allen has no
right to appeal. Allen has made no attempt
to respond to the Municipalitys argument.
(Because Allens case was filed as a
sentence appeal under Alaska Appellate Rule
215, she had no automatic right to file a
reply brief. See Appellate Rule 215(g)(3),
which declares that [n]o reply memorandum
shall be filed [in a sentence appeal] unless
ordered by the court. However, after the
Municipality raised the jurisdictional issue
(i.e., a new issue that was dispositive of
the appeal), Allen did not seek permission to
file a reply brief or any other responsive
pleading.)
Despite the fact that Allen has not
asked us to overrule Haggren, and despite the
fact that Allen has not submitted any
briefing on this jurisdictional issue, my
colleagues have now decided to overrule
Haggren to interpret AS 12.55.120(a) as
granting misdemeanor defendants an unfettered
right to appeal any aspect of their sentence
other than a term of unsuspended
imprisonment, as well as a limited right to
appeal a term of unsuspended imprisonment
(i.e., if it exceeds 120 days).
In support of their decision, my
colleagues offer various arguments as to why
the sentence appeal statute could reasonably
be interpreted in the manner they now
propose. But because this Court has already
interpreted this statute, the question of the
statutes meaning is governed by the doctrine
of stare decisis.
As this Court noted in Erickson v.
State, 950 P.2d 580, 587 (Alaska App. 1997),
when an issue is governed by stare decisis,
it is not enough ... to show that the [prior
controlling] decision was honestly debatable
at the time, and that it might have gone the
other way. Rather, a litigant who asks an
appellate court to overrule an existing
judicial interpretation of a statute must
demonstrate convincing reasons why the
existing interpretation was originally
erroneous in other words, was never legally
justifiable or why the existing
interpretation is no longer sound because of
changed conditions.
In the present case, there is no
litigant asking this Court to overrule
Haggren. Rather, my colleagues have taken
this task upon themselves and without the
benefit of briefing.
Nevertheless, the same rule of
stare decisis applies. It is not enough for
my colleagues to show that the statutory
interpretation adopted in Haggren was
reasonably debatable, and that there might be
good reasons for adopting a different
interpretation of the statute. Rather (since
no one is claiming changed conditions), my
colleagues must demonstrate that Haggrens
interpretation of the sentencing statute was
originally erroneous i.e., never legally
justifiable.
For the reasons that follow, I
conclude that my colleagues have failed to
meet this burden.
My colleagues argument that the prior
decisions of this Court are inconsistent
My colleagues note that this Court
has been inconsistent in our treatment of
misdemeanor sentence appeals. We have issued
memorandum decisions in which we rejected
defendants attempts to appeal their sentences
when the defendants did not receive the
requisite time to serve. On the other hand,
we have also issued memorandum decisions in
which we allowed defendants to appeal various
aspects of their sentences even though the
defendants did not receive the requisite time
to serve.
One can certainly fault this Court
for applying the sentence appeal statute
inconsistently. But the issue here is to
identify the real meaning of that statute.
Although it is true that this Court has, from
time to time, resolved sentence appeals even
though the defendant did not receive the
requisite amount of unsuspended imprisonment,
not one of these memorandum opinions
discusses the jurisdictional problem or
contains any analysis of this question of
statutory interpretation.
Moreover, even though it might be
argued that these memorandum decisions imply
a particular reading of the sentence appeal
statute, it is improper for my colleagues to
rely on those unpublished cases for any
proposition of law. See Court of Appeals
Standing Order No. 3 and Alaska Appellate
Rule 214(d), as interpreted in McCoy v.
State, 80 P.3d 751, 752-53 (Alaska App.
2002), opinion on rehearing, 80 P.3d 757, 764
(Alaska App. 2002) all of which state that
memorandum decisions of this Court do not
create legal precedent, and that those
decisions do not constitute binding authority
for any proposition of law.
My colleagues also point out that
there is one published decision, Jordan v.
State, 681 P.2d 346 (Alaska App. 1984), in
which this Court decided a defendants
excessiveness challenge to a forfeiture even
though the defendant did not receive the
threshold amount of imprisonment. But this
Courts resolution of the defendants sentence
appeal claim in Jordan is found in a few
sentences at the end of a lengthy opinion
devoted to other issues and, again, there is
no mention (much less a meaningful
discussion) of the potential jurisdictional
problem. Id., 681 P.2d at 350.1 It is
obvious that the State did not raise a
jurisdictional objection to Jordans excessive
forfeiture claim, and that this Court did not
focus on this issue.
In contrast, this Courts decision
in Haggren (which was issued eight years
later) explicitly rests on a ruling that,
under AS 12.55.120(a), a defendant has no
right to appeal any aspect of their sentence
appeal unless the defendant receives the
requisite time to serve specified in the
statute.
(On two occasions after Haggren,
this Court issued published decisions in
which we reversed aspects of a misdemeanor
defendants sentence even though the defendant
did not receive the threshold amount of time
to serve: Ashton v. State, 737 P.2d 1365,
1366 & n. 1 (Alaska App. 1987) (a fine), and
McCann v. State, 817 P.2d 484, 486 (Alaska
App. 1991) (a forfeiture). However, in both
instances, the defendant claimed that the
challenged portion of the sentence was
illegal because the sentencing court violated
a governing statute when imposing the
sentence. In other words, these were not
sentence appeals as defined in Rozkydal v.
State.)
My colleagues acknowledge that the
Haggren decision expressly rejects their
proposed interpretation of the sentence
appeal statute. But they do not truly
acknowledge that Haggren is a published
decision of this Court or, more importantly,
that it is the only published decision of
this Court that explicitly resolves this
issue of statutory interpretation.
Instead, my colleagues simply lump
Haggren with this Courts other unpublished
decisions that are inconsistent with their
view of the statute. In other words, my
colleagues treat Haggren as just one more
instance in which this Court refused to
decide an excessive sentence claim because
the defendant did not receive the requisite
amount of time to serve. Then my colleagues
conclude that their proposed interpretation
of the statute is better supported.
This approach would be lawful if
Haggren were just another memorandum
decision. But it is not. Instead, Haggren
is binding precedent on this issue of
statutory interpretation. Because Haggren is
a published decision, the doctrine of stare
decisis restricts this Courts authority to
change its mind about what the sentence
appeal statute means. It is not sufficient
for my colleagues to conclude that their view
of the law is better. Instead, they must
demonstrate that Haggrens interpretation of
the law was wrong from the beginning.
My colleagues argument that the inconsistency
of this Courts decisions is evidence that the
Alaska Legislature intended for defendants to
have the unfettered right to appeal any non-
imprisonment aspect of their sentence
There is another obstacle to my
colleagues proposed interpretation of the
sentence appeal statute. In 1995 (that is,
three years after this Court decided
Haggren), the Alaska Legislature amended both
the sentence appeal statute, AS 12.55.120,
and the corresponding statutes that define
this Courts sentence appeal jurisdiction,
AS 22.07.020(b) (c).
These 1995 amendments were clearly
intended to impose further limits on the
right of sentence appeal. The legislature
increased the threshold amount of
imprisonment (i.e., the minimum amount of
unsuspended jail time that triggers the right
of sentence appeal) from one year to two
years for felonies, and from 90 days to
120 days for misdemeanors. See SLA 1995, ch.
79, 7-8. In addition, the legislature
limited the right of sentence appeal in
situations where the defendants sentence was
the result of a negotiated sentencing range
or sentencing cap. Id. And the legislature
made corresponding changes to the statutes
that govern this Courts authority to hear
sentence appeals: AS 22.07.020(b) (sentence
appeals from the superior court) and
AS 22.07.020(c) (sentence appeals from the
district court). See SLA 1995, ch. 79, 11-
12.
When a statute has been the subject
of judicial interpretation, and when that
statute is subsequently re-enacted without
alteration of the language that was
judicially construed, the prior judicial
interpretation is presumed to govern the new
version of the statute unless the legislature
affirmatively indicates a contrary intention.
See the discussion of this point in Patterson
v. State, 708 P.2d 712 (Alaska App. 1985):2
[I]t is a well-established principle of
statutory construction that when the
legislature re-enacts language that has
previously been judicially construed, [the
legislature] is presumed to be aware of the
previous construction and to [be using] the
language in the sense given it by the court.
Patterson, 708 P.2d at 716, citing Hart v.
State, 702 P.2d 651, 655 (Alaska App. 1985).
See also Norman J. Singer, Sutherland on
Statutes and Statutory Construction (6th ed.,
2000 revision), 49.09, Vol. 2B, pp. 103-112.
When the Alaska Legislature amended
AS 12.55.120(a) in 1995, the legislature did
not change the operative language of the
statute i.e., the language that reads, A
sentence of imprisonment lawfully imposed ...
for a term or for aggregate terms ...
exceeding [so many] days [of unsuspended
incarceration] ... may be appealed to the
court of appeals ... on the ground that the
sentence is excessive.
As explained above, this operative
language had already been interpreted three
years before, in Haggren to mean that a
defendant whose sentence of unsuspended
imprisonment did not exceed the specified
amount had no right to appeal any aspect of
their sentence. Thus, under the rule of
construction explained (and applied) in
Patterson and Hart, the Haggren
interpretation of AS 12.55.120 is presumed to
be the correct interpretation of the post-
1995 version of the statute, absent evidence
to the contrary.
My colleagues concede that, when
the 1995 amendments were making their way
through the legislature, there was no
pertinent discussion of how the sentence
appeal statute applied to defendants who
wished to appeal the non-imprisonment aspects
of their sentences but who did not receive
the required minimum time to serve.
Seemingly, under the rule of statutory
construction applied in Patterson and Hart,
this silent legislative record should lead to
the conclusion that the legislature did not
intend to disturb the interpretation of the
sentence appeal statute announced in Haggren.
But my colleagues interpret the
legislatures silence in exactly the opposite
fashion. The majority opinion declares:
We presume [that] the legislature was aware
of the inconsistency of [this Courts] prior
decisions when it debated the 1995
amendments, and we do not believe [that the
legislature] would have been silent on [the
issue of a defendants right to appeal non-
imprisonment aspects of a sentence] if [the
legislature] had intended to eliminate our
jurisdiction over [sentence] appeals in all
cases [where defendants received] sentences
of 120 days or less.
This reasoning makes no sense.
First, even though the legislature
may have been aware that this Court had
issued inconsistent decisions on this point,
the legislature was presumably also aware
(1) that memorandum decisions of this Court
do not create legal precedent, and (2) that
the only published decision addressing this
point of law Haggren expressly interpreted
the sentence appeal statute as meaning that
defendants did not have the right to appeal
any aspect of their sentence unless they
received the specified minimum time to serve.
Second, even if the legislature
believed that, as a result of this Courts
inconsistent decisions, the answer to this
important question of statutory
interpretation was unresolved or in doubt, it
is nonsensical to think that the legislature
would decide to resolve this issue by
completely failing to address the issue when
they amended the statute in 1995.
The underlying flaw in my
colleagues reasoning is that they begin by
assuming something they wish to be true
(i.e., that before the 1995 amendments,
defendants had an uncontested right to appeal
any aspect of a sentence, other than the term
of imprisonment), and then they conclude that
the legislatures silence on this point during
the 1995 revision of the statute constitutes
the legislatures implicit affirmation of
their wish (i.e., affirmation of this
supposed right of appeal).
But defendants did not have an
unrestricted right to appeal the non-
imprisonment aspects of their sentences under
the pre-1995 law. Rather, the controlling
interpretation of Alaskas pre-1995 sentence
appeal law was the interpretation announced
in Haggren: defendants had no right to
appeal any aspect of their sentence unless
they received the requisite amount of time to
serve. Thus, to the extent that the
legislatures silence constituted an implicit
endorsement of any view of the law, that
silence was an endorsement of Haggren. It
makes absolutely no sense to suggest that the
legislature remained silent on this issue in
the hope that their silence would be taken as
signifying their intention to overrule
Haggren.
Even if we put aside the fact that
Haggren constituted binding precedent on this
issue, the most that could be said about this
Courts pre-1995 decisions is that they
presented a confusing or ambiguous picture
concerning a defendants right to appeal the
non-imprisonment aspects of a sentence. But
if that was the case, it makes no sense to
construe legislative silence as an implicit
endorsement of one view or the other.
My colleagues have not shown that the
decision in Haggren was originally erroneous
If my colleagues desire to overrule
Haggren, the doctrine of stare decisis
requires them to demonstrate that the Haggren
decision was originally erroneous or that the
Haggren decision is no longer sound because
of changed conditions. Since my colleagues
make no claim that conditions have changed in
any relevant way, they are obliged to show
that Haggren was originally erroneous i.e.,
that the Haggren decision was not legally
justifiable from the beginning.
As already discussed, the sentence
appeal statute, AS 12.55.120(a), is worded
ambiguously. The statutory reference to an
unsuspended term of imprisonment exceeding
120 days could potentially be interpreted in
three different ways. In Haggren, this Court
interpreted this language as setting a
threshold for misdemeanor sentence appeals.
That is, Haggren interpreted the statute to
mean that defendants have no right to appeal
any aspect of their sentence unless they
receive more than the specified amount of
unsuspended imprisonment.
There was no pertinent legislative
commentary or history on this question of law
at the time Haggren was decided. Indeed,
even after the 1995 amendments to the
sentence appeal law, there still is no
pertinent legislative commentary or history.
But Haggrens interpretation of AS 12.55.120
is supported by the language of
AS 22.07.020(c), the counterpart statute that
defines this Courts authority to entertain
sentence appeals from the district court.
This Court has repeatedly
recognized that these two statutes
AS 12.55.120(a), the statute that defines the
right of sentence appeal, and AS 22.07.
020(d), the statute that defines this Courts
jurisdiction to hear sentence appeals are to
be read in pari materia. That is, they are
to be interpreted in light of each other, and
in a manner that renders them harmonious.3
The pertinent portion of AS
22.07.020(c) declares:
The court of appeals has jurisdiction to
review ... the final decision of the district
court on a sentence imposed by it if the
sentence exceeds 120 days of unsuspended
incarceration for a misdemeanor offense.
This statute does not contain the ambiguous wording
found in AS 12.55.120. That is, AS 22.07.020(c) does
not refer to this Courts authority to review a sentence
of imprisonment imposed by the district court. Rather,
AS 22.07.020(c) speaks of and defines this Courts
authority to review any final decision of the district
court on a sentence imposed by [that court].
In this statute, the legislature has given this Court
the authority to review a final [sentencing] decision
of the district court only if the sentence exceeds 120
days of unsuspended incarceration. This wording is
completely consistent with, and indeed supports,
Haggrens interpretation of the sentence appeal statute:
a defendant has no right to appeal any aspect of a
misdemeanor sentence, and this Court has no right to
review any aspect of a misdemeanor sentence, unless the
sentence includes a term of imprisonment exceeding 120
days to serve.
In other words, an examination of AS 22.07.020(c) shows
that the Haggren decision was eminently justifiable at the time.
(And my colleagues have not demonstrated, or even suggested, any
change of circumstances that would render the Haggren decision no
longer correct.)
In addition to the fact that the sentence appeal
statute, AS 12.55.120, and this Courts jurisdictional statute, AS
22.07.020(c), must be read in pari materia, this Court has also
held that Alaska Appellate Rule 215(a) the rule governing
sentence appeals and sentence petitions must likewise be read in
pari materia with these two statutes.
As we explained in Peters v. State, 943 P.2d 418
(Alaska App. 1997), the legislative history of Appellate Rule
215(a) demonstrates that the supreme court amended this rule in
1996 to bring it into conformity with the legislatures 1995
amendments to the sentence appeal statute and this Courts
jurisdictional statute:
Just as AS 22.07.020 and [AS] 12.55.120
should be read together and interpreted
harmoniously, Appellate Rule 215(a)(1) should
also be interpreted so as to be consistent
with these statutes. Although Appellate Rule
215(a) has a history of inconsistency with
the statutory limits on sentence appeals, the
supreme court appears to have designed the
current version of Rule 215(a)(1) to conform
to the legislatures 1995 amendments to
AS 12.55.120 and AS 22.07.020. The statutory
amendments were enacted in 1995, taking
effect July 1, 1995. The supreme court
issued [Supreme Court Order No.] 1226
amending Appellate Rule 215 in January of
1996. With this amendment[,] the court
abandoned the 45-day sentence appeal limit to
which it had adhered since 1976, and adopted
limits on the defendants sentence appeal of
right that correspond exactly to the newly
enacted limits on the court of appeals
sentence appeal jurisdiction. Any ambiguity
in Appellate Rule 215(a)(1) as amended should
therefore be interpreted in favor of harmony
with the new AS 12.55.120 and the new AS
22.07.020.
Peters, 943 P.2d at 420. Thus, we held, Appellate Rule 215(a)
must be read in pari materia with AS 12.55.120 and
AS 22.07.020(b) (c).
Appellate Rule 215(a)(1), which is titled [A]
Defendants Right to Appeal [a] Sentence as Excessive,
tracks the language of the sentence appeal statute,
AS 12.55.120(a), as amended by the legislature the
preceding year (1995):
A defendant may appeal an unsuspended
sentence of imprisonment that exceeds two
years for a felony offense or 120 days for a
misdemeanor offense on the ground that the
sentence is excessive, unless the sentence
was imposed in accordance with a plea
agreement that provided for imposition of a
specific sentence or a sentence equal to or
less than a specified maximum sentence. If a
sentence is imposed in accordance with a plea
agreement that provides for a minimum
sentence, a defendant may appeal as excessive
only the part of the sentence that exceeds
the minimum sentence by more than two years
for a felony offense or 120 days for a
misdemeanor offense.
Because this appellate rule is worded so as to mirror
the provisions of AS 12.55.120(a), the rule presumably
was intended to mean the same thing as the statute.
That is, in the absence of evidence to the contrary, we
must assume that Appellate Rule 215(a)(1) was intended
to describe the same right of appeal that is described
in the sentence appeal statute. And in early 1996,
when the supreme court promulgated this rule, the
governing interpretation of a defendants right of
sentence appeal under AS 12.55.120 was the
interpretation adopted by this Court in Haggren.
Subsection (2) of Rule 215(a), which is titled [A]
Defendants Right to Appeal [a] Sentence on Grounds Other Than
Excessiveness, codifies our holding in Rozkydal concerning the
types of sentencing issues that can be raised on appeal
notwithstanding the legislatures restrictions on sentence
appeals. This subsection of Rule 215(a) states:
A defendant may appeal a sentence of any
length on grounds other than excessiveness,
including but not limited to: illegality of
the sentence; erroneous findings by the trial
court that affect the statutory range of
sentences to which the defendant is subject;
and procedural errors in the sentencing
proceeding.
The supreme courts historical file on Appellate Rule
215(a) shows that this language was added to the rule in response
to a letter that Justice Warren Matthews sent to the Court Rules
Attorney. In his letter, Justice Matthews noted this Courts
recent decision in Rozkydal, and he expressed concern that Rule
215 did not adequately clarify the fact that the legislatures
restrictions on sentence appeals did not limit a defendants right
to file an appeal raising statutory or procedural objections to a
sentencing decision. The minutes of the supreme courts Appellate
Rules Committee indicate that, in response to Justice Matthewss
concerns, a committee member (Assistant Attorney General Eric
Johnson) drafted the language that currently appears in Rule
215(a)(2).
Thus, subsection (2) of Appellate Rule 215(a) was
intended to confirm this Courts jurisdiction to hear appeals that
raise claims of legal or procedural error at sentencing (as
opposed to claims that the lower court abused its sentencing
discretion).
Finally, subsection (5) of Appellate Rule 215(a)
addresses a defendants right to petition the supreme court to
review a sentence that is not appealable to this Court under
subsection (1) of the rule. Appellate Rule 215(a)(5) states:
(5) Right to Seek Discretionary Review
for Excessiveness. A defendant may seek
discretionary review of an unsuspended
sentence of imprisonment which is not
appealable under subparagraph (a)(1) [of this
rule] by filing a petition for review in the
supreme court under Appellate Rule 402. ...
As can be seen, subsection (5) speaks of unsuspended
sentence[s] of imprisonment the same ambiguous
language that is found in the sentence appeal statute,
AS 12.55.120(a). And in Haggren, a decision issued
almost four years before the supreme court enacted the
current version of Appellate Rule 215(a), this Court
gave a binding interpretation to that ambiguous
language.
As explained above, when statutory language has been
judicially construed, the legislature is presumed to
act with awareness of that judicial interpretation when
it amends or re-enacts the statute. And when the
supreme court engages in its legislative role under
Article IV, Section 15 of our constitution (that is,
when the supreme court enacts court rules), the supreme
court is likewise presumed to act with awareness that
particular statutory language has been judicially
construed and the court is presumed to use that
language in conformity with the prior judicial
interpretation, absent evidence to the contrary.
Here, there is no evidence to the contrary. During our
efforts to research the meaning of Appellate Rule 215(a), we
examined the pertinent legislative history file kept by the Court
Rules Attorney. The records pertaining to Appellate Rule 215(a)
contain no mention of the issue presented in this case i.e., the
possibility that a defendant who received less than the threshold
amount of imprisonment might wish to appeal an aspect of their
sentence other than the term of incarceration (e.g., a condition
of probation, or the term of a license revocation, or the amount
of a fine or forfeiture). Moreover, the supreme courts records
contain no discussion of this Courts decision in Haggren much
less any indication that the supreme court disagreed with, or
wished to overturn, the Haggren decision.
To sum up this discussion of Appellate Rule 215(a): No
provision of this rule addresses the issue of whether a defendant
who receives less than the threshold amount of time to serve can
nevertheless appeal a condition of probation, the term of a
license revocation, or the amount of a fine or forfeiture. The
supreme courts historical file on Appellate Rule 215(a) contains
no mention of these types of appeals.
As I noted above, this Court held in Peters that
Appellate Rule 215(a) is to be read in pari materia with the
sentence appeal statute and this Courts jurisdictional statute.
Accordingly, the supreme courts silence on the jurisdictional
issue presented in this appeal means that Appellate Rule 215(a)
must be interpreted in conformity with the construction that we
gave to the sentence appeal statute in Haggren.
In other words, the fact that the supreme courts file
contains no discussion of this issue must be taken to mean that
the supreme court did not intend to overrule this Courts decision
in Haggren. The supreme court did not intend Appellate Rule
215(a) to authorize independent challenges to the severity of
probation conditions, license revocations, fines, or forfeitures
because the court viewed these types of challenges as excessive
sentence claims that were barred unless the defendant received
the threshold amount of imprisonment.
My colleagues argument that allowing a
broader scope of sentence appeals is good
policy
My colleagues final argument is
that it is better policy to give defendants
the unrestricted right to appeal all non-
imprisonment aspects of their sentence, even
when the defendant may have received little
or no imprisonment. Here is what the
majority opinion says:
In the absence of an affirmative
indication from the legislature, we do not
believe [that] the legislature intended to
allow a defendant ... to appeal a potentially
onerous [probation condition or] a 20-year
revocation of [their] drivers license [if
they received 121 days to serve,] but to
limit a defendant [who receives] a 120-day
sentence to discretionary review by the
supreme court [of] the same claim[s]. ...
[H]aving this court decide a claim that a
probation condition is illegal[,] while
leaving to the supreme court discretionary
review over whether the same probation
condition was an abuse of discretion[,] would
result in unnecessary administrative
difficulties.
Again, there are several flaws in this reasoning.
First, this Court is not empowered to interpret the
sentence appeal statute in any manner we wish in the
absence of an affirmative [contrary] indication from
the legislature. Instead, our decision in Haggren
provides the starting point for interpreting this
statute, and the legislatures subsequent silence on
this point is presumed to be an acquiescence in the
Haggren decision. Thus, it is my colleagues who need
an affirmative indication from the legislature before
they can depart from Haggren.
Second, whenever a dividing line is erected between
defendants who have the right to appeal their sentences
and defendants who must petition for review of their
sentences, there will inevitably be some cases in the
latter group that call out for appellate review. That
is, there will be defendants who receive 120 days or
less to serve (in other words, not enough time to serve
to trigger the right of appeal), but whose fines or
conditions of probation or license revocations will
nevertheless be clearly unreasonable.
But this does not mean that the dividing line created
by the legislature is untenable, or that it should not be
enforced. As this Court explained in Rozkydal,
The premise underlying any sentence
appeal dividing line (whether that line is
drawn at 45 days or at 2 years) is that
lesser sentences are less likely to be
excessive. If lesser sentences are less
likely to constitute an abuse of discretion,
then there is arguably less justification for
conducting a full appellate review of each of
these sentences. The legislative history of
AS 12.55.120 shows that the legislature
relied on this reasoning when it restricted
... sentence appeals[.]
Rozkydal, 938 P.2d at 1096.
In other words, even though my colleagues may believe
that it creates unnecessary administrative difficulties to
require some defendants to petition for appellate review of the
amount of their fines or the conditions of their probation or the
length of their license revocations, the legislature could and
did reasonably view the matter differently.
The legislature could reasonably infer that, in the
average case, if a defendant receives relatively little time to
serve (2 years or less for a felony, or 120 days or less for a
misdemeanor), there is a correspondingly smaller chance that the
sentencing judge will have abused his or her discretion when
setting the amount of the defendants fine or forfeiture, or the
conditions of the defendants probation, or the length of the
defendants license revocation. Accordingly, the legislature
could properly conclude that it would be an unnecessary
expenditure of judicial resources to give all of these defendants
the right to demand full appellate review of their sentences and
that it makes more sense to require these defendants to petition
for review, thus allowing the appellate court to choose which
sentencing cases merit full appellate review.4
And, in the final analysis, this is the legislatures
decision. The legislature is the branch of government that
decides which defendants are entitled to file sentence appeals in
this Court, and which defendants must petition for appellate
review of their sentences. The legislatures decision remains
binding, regardless of whether the members of this Court believe
that the legislature might have made a better decision.
Conclusion
This case involves a defendant who
received only 30 days to serve but who claims
that one of the conditions of her probation
is unreasonable. Under AS 12.55.120(a), as
interpreted by this Court in Haggren, the
defendant has no right to pursue this
sentence appeal.
My colleagues have decided to
overrule Haggren. They take this step even
though the defendant does not ask us to do
this, and even though neither party has
briefed the question of whether Haggrens
interpretation of the sentence appeal statute
is correct.
To reach their desired result, my
colleagues have ignored the doctrine of stare
decisis the rules that govern a courts
authority to overrule its prior decisions.
My colleagues have also ignored the rule of
statutory construction that applies to
statutes and court rules which incorporate
language that has already been judicially
construed.
My colleagues may believe that
Haggren was wrongly decided. But they are
not writing on a clean slate. There are
rules that limit an appellate courts
authority to overrule its prior decisions.
There are also rules that limit an appellate
courts authority to adopt a new and different
interpretation of a statute that the court
has previously construed. Those rules exist
for a reason. The legal community, and the
community at large, must have some guarantee
that the law will not change merely because
the membership of this Court has changed.
For these reasons, I dissent.
_______________________________
1 Anchorage Municipal Code (AMC) 8.55.010.A.2, AMC
8.55.010.A.3, and AMC 8.30.080.A.1, respectively.
2 Hillman v. Anchorage, 941 P.2d 211, 212-13 (Alaska App.
1997).
3 See id.; State v. Chaney, 477 P.2d 441, 443-44 (Alaska
1970). See also AS 12.55.005 (codifying the Chaney sentencing
criteria).
4 Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App. 1997)
(discussing the type of sentence appeal authorized by AS
12.55.120); see also Richardson v. State, 47 P.3d 660, 663
(Alaska App. 2002) (observing that AS 22.07.020(c) incorporates
the limitation on sentence appeals in AS 12.55.120(a)).
5 Wharton v. State, 590 P.2d 427, 429 (Alaska 1979);
Gilligan v. State, 560 P.2d 17, 18 n.2 (Alaska 1977).
6 See AS 22.07.010.
7 Richardson, 47 P.3d at 663 (citing Hillman, 941 P.2d at
215).
8 47 P.3d 660.
9 Id. at 662-64.
10 Id. at 663.
11 Id. at 661-62.
12 Id. at 663.
13 Id. at 664.
14 Id.
15 829 P.2d 842 (Alaska App. 1992).
16 Id. at 845; Bingaman v. Anchorage, Alaska App. Memorandum
Opinion and Judgment No. 4179 at 2, n.2 (Feb. 2, 2000), 2000 WL
124801 at *1, n.2; Jerrel v. State, Alaska App. Memorandum
Opinion and Judgment No. 2533 at 14 (Nov. 4, 1992), 1992 WL
12153274 at *7.
17 See, e.g., Jordan v. State, 681 P.2d 346, 350 (Alaska App.
1984) (considering an excessive sentence claim involving the
forfeiture of an airplane although Jordan did not receive any
unsuspended incarceration); Perez v. State, Alaska App.
Memorandum Opinion and Judgment No. 2486 at 8 (Aug. 12, 1992),
1992 WL 12153294 at *3 (considering an excessive sentence claim
involving a $1000 fine with $500 suspended, 150 hours of
community work service, and 180 days with 165 days suspended
although Perez only received 15 days of unsuspended
incarceration); Kuznicki v. Anchorage, Alaska App. Memorandum
Opinion and Judgment No. 2191 at 1-4 (April 10, 1991), 1991 WL
11650698 at *1 (considering an excessive sentence claim although
Kuznicki was only sentenced to 15 days of unsuspended
incarceration); Kelley v. State, Alaska App. Memorandum Opinion
and Judgment No. 2102 at 6-7 (Oct. 3, 1990), 1990 WL 10509548 at
*3 (considering a claim that a fine was excessive although Kelley
was not sentenced to any imprisonment); Andrews v. State, Alaska
App. Memorandum Opinion and Judgment No. 1697 at 1-2 (Nov. 9,
1988), 1988 WL 1513112 at *1 (considering an excessive sentence
claim although Andrews was only sentenced to 6 days of
unsuspended incarceration).
18 681 P.2d 346.
19 Id. at 350.
20 Alaska App. Memorandum Opinion and Judgment No. 2102, 1990
WL 10509548.
21 Id. at 6-7, 1990 WL 10509548 at *3.
22 Id. at 8, 1990 WL 10509548 at *3.
23 51 P.3d 962 (Alaska App. 2002).
24 Id. at 966-67.
25 Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761
(Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist., 864 P.2d
526, 530-31 (Alaska 1993)).
26 Mack v. State, 900 P.2d 1202, 1205 (Alaska App. 1995)
(quoting Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.
1981)).
27 See Richardson, 47 P.3d at 664.
28 See February 27, 1995, Transmittal Letter for H.B. 201,
1995 House Journal 490.
29 See Committee Minutes, House State Affairs Committee
(March 18, 1995), House Judiciary Committee (March 27, 1995), and
House Finance Committee (April 12, 1995) (testimony of Lauri
Otto, Deputy Attorney General, Criminal Division, Department of
Law, on H.B. 201).
30 See Alaska R. App. P. 215(a)(5).
31 See 47 P.3d at 664.
32 See Haggren, 829 P.2d at 845; Bingaman, Alaska App.
Memorandum Opinion and Judgment No. 4179 at 2 n.2, 2000 WL 124801
at *1 n.2; Jerrel, Alaska App. Memorandum Opinion and Judgment
No. 2533 at 14, 1992 WL 12153274 at *7.
33 Parks v. State, 571 P.2d 1003, 1005 (Alaska 1977); Sweetin
v. State, 744 P.2d 424, 427 (Alaska App. 1987).
34 See Baum v. State, 24 P.3d 577, 581 (Alaska App. 2001)
(affirming probation condition that restricted defendant, who was
convicted of unlawfully taking game, from applying for a hunting
or guiding license for ten years); Allain v. State, 810 P.2d
1019, 1022-23 (Alaska App. 1991) (affirming probation condition
that restricted defendant, who was convicted of sexual abuse of a
minor, from having unsupervised contact with minors under sixteen
years of age); Tiedeman v. State, 576 P.2d 114, 116 (Alaska 1978)
(affirming probation condition that restricted defendant from
appearing drunk in public when alcohol was an important
contributing factor to his criminal behavior).
35 Mahan, 51 P.3d at 966 (claim waived due to inadequate
briefing).
36 See Baum, 24 P.3d at 582; Nitz v. State, 745 P.2d 1379,
1381 (Alaska 1987); Tiedeman, 576 P.2d at 116.
1 Here is the paragraph:
Dr. Jordan appeals his sentence as excessive. His only real
complaint concerns the forfeiture of the airplane. He
asserts that it is unclear whether the plane is to be
forfeited, or whether the trial court imposed a $10,000
fine which would result in a forfeiture if not paid.
Since the maximum fine allowed is $1,000, AS 16.05.900,
Jordan contends that the sentence may be illegal. We
disagree. Our review of Judge Blairs sentencing
remarks and the judgment makes it clear to us that the
loss of the airplane was not intended as a fine but as
a forfeiture. Judge Blair never referred to a fine in
his sentencing remarks, only to the fact that the
airplane was to be forfeited. Dr. Jordans sentence is
not illegal. Cf. F/V American Eagle v. State, 620 P.2d
657, 671-72 (Alaska 1980), appeal dismissed, 454 U.S.
1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982). Finally,
Dr. Jordan contends that even if legal, the forfeiture
of his plane was excessive under the circumstances.
The trial court determined that the forfeiture of the
airplane was necessary for the purpose of deterring the
Jordans and others similarly situated from committing
same day airborne violations. We agree. Since the
airplane was an instrumentality by which Jordan
committed the offense in question, its forfeiture was
appropriate under the circumstances. See AS 16.05.190.
The penalty imposed was not clearly mistaken. McClain
v. State, 519 P.2d 811, 813-14 (Alaska 1974).
2 Reversed on other grounds in State v. Patterson, 740 P.2d
944 (Alaska 1987).
3 See Richardson v. State, 47 P.3d 660, 662-63 (Alaska App.
2002); Peters v. State, 943 P.2d 418, 420 (Alaska App.
1997); Hillman v. Anchorage, 941 P.2d 211, 212-13
(Alaska App. 1997).
4 See the remarks of Deputy Attorney General Laurie Otto to
the House Judiciary Committee in March 1995, when the legislature
was considering the statutory amendments that raised the
threshold amount of time to serve from 1 year to 2 years for
felonies, and from 90 days to 120 days for misdemeanors:
People are [currently] able to file sentence appeals as a
matter of right ... if [they] have been given a sentence in
excess of [one] year for a felony or 90 days for a
misdemeanor[.] [If you meet this threshold amount of
imprisonment], that is your right. There is no screening.
You can file an appeal, and the court has to hear it.
We are upping those limits to two years for a felony and
120 days for a misdemeanor. We have ... looked at Court
System statistics, and we see that only a very small
percentage of sentence appeals are granted that 90 percent
of sentences are affirmed. [When felony defendants receive
two years or less to serve,] the courts pretty routinely
reject [their] sentence appeals. So we tried to [identify]
the bulk of sentence appeals [which] were routinely being
denied by the courts.
Part of the theory here is to allow the agencies involved
the courts, the prosecutors, the public defenders and the
Office of Public Advocacy to focus on the cases where there
is a likelihood of [the defendants] prevailing, as opposed
to the cases where [challenges to sentences] are routinely
being denied, and [where] we are all just churning up
resources.
See Minutes of the House Judiciary Committee for March 27, 1995,
Tape 95-36, Side A, between log numbers 400 and 730.
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