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NOTICE
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Reporter. Readers are encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections @ appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DOUGLAS BRYAN LAMKIN, )
) Court of Appeals No. A-10741
Appellant, ) Trial Court No. 3AN-09-7121 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2287 - December 17, 2010
)
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael Spaan, Judge.
Appearances: Kevin T. Fitzgerald, Ingaldson, Maassen &
Fitzgerald, P.C., Anchorage, for the Appellant. Robert E.
Henderson, Assistant District Attorney, Adrienne P. Bachman,
District Attorney, Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
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Douglas Bryan Lamkin pled guilty to one count of assault in the third
1 2
degree (a class C felony) and driving under the influence. At sentencing, Lamkin asked
the court to suspend the imposition of his sentence. The State opposed, arguing that the
court was prohibited by statute from suspending the imposition of sentence for a felony
assault. Superior Court Judge Michael Spaan concluded that Lamkin, a first-time
offender, would have been a suitable candidate for a suspended imposition of sentence,
but he concluded that he was prohibited from suspending the imposition of Lamkin's
sentence by AS 12.55.085(f). Lamkin appeals. We agree with the superior court's
interpretation of the statute. We therefore affirm.
Discussion
The resolution of this issue requires us to interpret two statutes. The first
statute, AS 12.55.125(e)(1), sets out the penalties for first felony offenders convicted of
class C felonies. The statute provides a presumptive range of sentences (in most cases,
zero to two years of imprisonment). It also provides that "a defendant sentenced under
this paragraph may, if the court finds it appropriate, be granted a suspended imposition
of sentence under AS 12.55.085 ... ."
The second statute in question is AS 12.55.085. The first part of the statute
states that "[e]xcept as provided in (f) of this section, if it appears that there are
circumstances in mitigation of the punishment, or that the ends of justice will be served,
the court may, in its discretion, suspend the imposition of sentence ... ."
1 AS 11.41.220(a)(1)(B); AS 11.41.220(e).
2 AS 28.35.030(a)(2).
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AS 12.55.085(f) sets out restrictions on a court's ability to suspend the
imposition of sentence:
The court may not suspend the imposition of sentence of a
person who
(1) is convicted of [certain crimes against the person,
including Lamkin's offense, assault in the third degree];
(2) uses a firearm in the commission of the offense for
which the person is convicted; or
(3) [is convicted of assault in the fourth degree or
reckless endangerment and has been previously convicted of
an assaultive crime].
Lamkin argues that there is "an apparent conflict" between
AS 12.55.125(e)(1) and AS 12.55.085. And he offers a way to reconcile this purported
conflict. According to Lamkin, AS 12.55.125(e)(1), standing alone, authorizes the court
to suspend the imposition of sentence of a person convicted of any class C felony,
including assault in the third degree. Lamkin would interpret AS 12.55.085(f) as
precluding a court from suspending the imposition of sentence only if Lamkin had been
convicted of assault in the third degree and had used a firearm in the commission of the
offense or was a repeat assaultive offender.
We reject this proposed interpretation of the statutes. One general rule of
statutory construction is that "where one statute deals with a subject in general terms and
another deals with a part of the same subject in more detail, the two should be
harmonized if possible, but if there is any conflict, the more specific statute will
prevail."3 Moreover, AS 12.55.125(e)(1) expressly refers to AS 12.55.085 as the statute
defining a court's authority to grant a suspended imposition of sentence, and the
3 Waiste v. State, 808 P.2d 286, 289 (Alaska App. 1991).
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limitations on a court's authority to suspend the imposition of sentence are set out in AS
12.55.085(f).
Alaska Statute 12.55.085(f) lists three conditions under which the trial court
may not suspend sentence. Because the statute uses the word "or" to separate the
conditions, the presumptive construction of the statute is that if any one of the conditions
is satisfied, then the sentence may not be suspended.4 We have previously interpreted
former versions of AS 12.55.085(f) consistently with this principle and held that if the
offense for which the defendant was convicted fell within either (1) or (2) or (3), the
court was without authority to suspend the imposition of sentence.5 One of the
limitations set forth in AS 12.55.085(f) is that the court is not authorized to suspend the
imposition of sentence for offenders, such as Lamkin, who are convicted of a felony
assault, including assault in the third degree.
Thus, Lamkin's interpretation of AS 12.55.085 conflicts with the normal
rules of statutory construction and prior decisions of this court interpreting the statute.
His argument rests on the questionable assumption that when it enacted
AS 12.55.125(e)(1), the legislature was either unaware of AS 12.55.085 or intended to
modify that statute. The legislative history does not support this assumption.
The legislature modified AS 12.55.085(f) to limit the discretion of courts
to suspend the imposition of sentence for assaultive crimes three times from 1990
through 1996.6 In 1996, the legislature enacted the version of subsection (f) that was in
4 See MacDonald v. State, 83 P.3d 549, 550 (Alaska App. 2004) (reading the word "or"
in the disjunctive).
5 Orr-Hickey v. State, 973 P.2d 612, 615 (Alaska App. 1999); Mack v. State, 900 P.2d
1202, 1204 (Alaska App. 1995).
6 Ch. 196, § 1, SLA 1990; ch. 40, § 7, SLA 1993; ch. 55, § 1, SLA 1996.
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----------------------- Page 5-----------------------
place at the time of Lamkin's offense. The legislative history shows that the legislature
initially considered prohibiting a court from suspending the imposition of sentence for
"a crime against a person or arson in the first degree."7 Ultimately, the legislature passed
legislation which permitted a trial court to grant a suspended imposition of sentence for
a person convicted of misdemeanor assault but which precluded suspending the
imposition of sentence for anyone convicted of felony assault.8 Assault in the third
degree, the offense for which Lamkin was convicted, is a class C felony. It therefore
appears clear, from both the legislative history and the plain language of
AS 12.55.085(f), that the legislature intended to prohibit a court from suspending the
imposition of sentence of a person convicted of assault in the third degree.
We now turn to the legislative history of the 2005 amendment of
AS 12.55.125(e)(1). In response to the United States Supreme Court decision in Blakely
v. Washington, the legislature modified the sentencing provisions of the Alaska Criminal
Code to modify the sentencing structure from presumptive terms to presumptive ranges.9
According to the Minutes of the House Judiciary Committee, the amendment to
AS 12.55.125(e)(1) was intended "to maintain the court's ability to impose a Suspended
Imposition of Sentence (SIS) for a first felony offender who commits an eligible C ...
felony. The bill was not intended to make a change in current SIS practice; the
amendments should restore the status quo [from previous drafts]."10
7 S.B. 264, 19th Leg. (Feb. 7, 1996).
8 C.S.S.B. 264, 19th Leg., 2d Sess. (1996).
9 Ch. 2, § 1, SLA 2005; 2005 Senate Journal 102-103.
10 Minutes of the House Judiciary Committee, S.B. 56, 2:49:52 PM, (Jan. 31, 2005)
(emphasis added); see also Minutes of the House Finance Committee, S.B. 56 1:43:03 PM (Feb.
16, 2005); versions SB0056B, SB0056C, SB0056D of S.B. 56.
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The legislative history of the two statutes, therefore, supports the conclusion
that, in passing the 2005 amendment to AS 12.55.125(e)(1), the legislature was fully
aware of the provisions of AS 12.55.085(f), which restricted a court's ability to suspend
imposition of sentence, and that the legislature did not intend to modify those
restrictions.
Conclusion
The judgment of the superior court is AFFIRMED.
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