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NOTICE
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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
EDWARD S. YAKO,
Court of Appeals No. A-10858
Appellant, Trial Court No. 4BE-09-622 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2410 - January 24, 2014
Appeal from the Superior Court, Fourth Judicial District,
Bethel, Leonard R. Devaney III, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
Michael C. Geraghty, Attorney General, Juneau, for the
Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and
*
E. Smith, Superior Court Judge .
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
Edward S. Yako was convicted of bootlegging - i.e., selling alcoholic
beverages without a license - in Bethel. The issue presented in this appeal is whether
Yako should be convicted of a felony or a misdemeanor.
The unlicensed sale of alcoholic beverages is normally a class A
misdemeanor. See AS 04.16.200(a). However, the offense is a class C felony if the State
proves that it occurred in a "local option" community - that is, in a community which
has voted to ban or restrict the sale, importation, and/or possession of alcoholic
beverages pursuant to one of the provisions of AS 04.11.491. See AS 04.16.200(b).
(See also Morgan v. State , 661 P.2d 1102, 1102-03 (Alaska App. 1983),
where this Court held that the provisions of AS 04.16.200(b) are not merely factors that
can enhance a defendant's sentence; rather, AS 04.16.200(b) defines the separate
substantive offense of felony bootlegging.)
Yako committed his offense in April 2009. At that time, Bethel was a "dry"
community; that is, Bethel had exercised its local option under AS 04.11.491(a)(1) to ban
the sale of alcoholic beverages. Accordingly, Yako was indicted for a felony.
But in October 2009, while Yako's case was still pending in the superior
court, the voters of Bethel repealed the local ban on the sale of alcohol. 1
The voters'
decision became effective on November 1, 2009 (the first day of the month following the
2
certification of the local election). Yako was tried (and found guilty) in early February
2010.
At his trial, and later at his sentencing in September 2010, Yako did not
dispute that his offense was a felony - i.e., that the severity of his offense should be
1 See http://www.cityofbethel.org. (Follow "City Council" to "Council Legislation",
then to "Resolutions"; select "2009 Resolutions", then follow "Res 09-40 Certifying the
Results of The October 6, 2009 Regular City Election").
2 See AS 04.11.495(a).
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judged according to the state of the law in Bethel at the time of his offense. And Yako
received a felony-level sentence: 60 months' imprisonment with 20 months suspended.
But in March 2012, after Yako was sentenced for a probation violation, he
filed a motion in the superior court seeking immediate release from prison. In this
motion, Yako argued that his offense should have been treated as a misdemeanor because
of the intervening change in Bethel law.
The superior court did not vacate Yako's felony judgement. However, the
court released Yako from further correctional supervision - by modifying Yako's
sentence to time served, and by terminating his probation. 3
In this appeal, Yako argues that the superior court should have vacated his
felony judgement, and should have convicted him of a misdemeanor instead, because
Bethel repealed its local ban on the sale of alcohol before Yako was tried or sentenced
for bootlegging.
Yako argues that his case should be treated as an instance where a
defendant is charged with violating a criminal statute, and then the statute is repealed
before the defendant is convicted. But the statutes that Yako was convicted of violating
- AS 04.11.010 and AS 04.16.200(b) - have not been repealed; they are still in effect.
The first of these statutes forbids bootlegging, and the second statute makes the offense
a felony if the bootlegging occurs in a local option community.
Yako does not challenge the fact that he engaged in bootlegging, but he
claims that it is unfair to punish him for a felony (rather than a misdemeanor) now that
the citizens of Bethel have changed their mind about the local sale of alcoholic
beverages.
3 See "Order on Motion to Modify Sentence" dated April 1, 2012, in State of Alaska
v. Edward S. Yako , File No. 4BE-09-0622 CR.
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There is some force to Yako's equitable argument - but the superior court
has already acknowledged that Yako's circumstances call for leniency: the court
released Yako from the remainder of his sentence. The real question is whether Yako
is entitled to have his felony conviction erased - or, rather, have it converted to a
misdemeanor conviction.
Yako's case is analogous to the situation where a defendant violates a
statute that makes it illegal to hunt or fish using a certain type of gear that is prohibited
by regulation - and then, after the defendant commits this offense, the Department of
Fish and Game decides to amend the pertinent regulation to allow the defendant's type
of gear. In both Yako's case and this hypothetical situation, the state legislature has
enacted a statute which declares that people must obey the rules promulgated by a lower
level of government - in Yako's case, the ordinances of the city of Bethel, and in the
hypothetical case, the regulations promulgated by an administrative agency. And in both
instances, (1) the defendant's conduct violated the statute at the time, and (2) the statute
remains in effect, unrepealed and unamended, but (3) the underlying ordinance or
regulation has changed.
Because Yako's conduct violated a state statute, the ultimate issue here is
whether the Alaska Legislature would wish to see Yako's case pursued or, instead,
dropped due to the intervening change in Bethel's municipal law. This is a matter of
state government policy, not local government policy.
While the City of Bethel might not have a particular interest in continuing
to enforce its former prohibition on the sale of alcohol, the state government's interest
is broader - for the state statutes at issue here are part of a legislative framework for
recognizing and enforcing the local option decisions of all Alaska communities. The
Legislature has an independent interest in maintaining the uniformity and predictability
of the law relating to the possession and sale of alcoholic beverages throughout the state,
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----------------------- Page 5-----------------------
to the extent that uniformity and predictability is consistent with the Legislature's policy
of allowing local communities to exercise the options listed in AS 04.11.491.
One indication of the Legislature's wishes in this matter is the wording of
AS 04.11.495, the statute that deals with a community's repeal of a local restriction on
the possession or sale of alcoholic beverages. Under subsection (a) of this statute, the
repeal does not take effect immediately upon the certification of the local election, but
rather "[on] the first day of the month following [that] certification". The fact that the
statute mandates this transition period, with the results of the election not taking effect
until a future date, is difficult to reconcile with the claim that the Legislature would view
the change in the local law as automatically excusing all past infractions.
We also note that Yako's case is not analogous to past cases involving
situations where the Legislature has reduced the penalty for a particular offense, and
where the question presented on appeal is whether defendants whose criminal acts
pre-date the change in the law should receive the benefit of the new, reduced penalty. 4
There has been no change in the penalties for either the misdemeanor offense of typical
(or non-aggravated) bootlegging or the felony offense of bootlegging in a local option
community.
Thus, Yako is not arguing that he should receive the benefit of a newly
reduced penalty for the offense of bootlegging in a local option community. Rather,
Yako is arguing that he should receive the lesser penalty for a different crime that he did
not commit: the offense of bootlegging outside a local option community.
When we analyze Yako's case in this fashion, we conclude that the
Legislature would not view the result of Bethel's local election - Bethel's decision to
4 See, e.g., Stafford v. State, 129 P.3d 927 (Alaska App. 2006).
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----------------------- Page 6-----------------------
allow the sale of alcohol by properly licensed liquor stores - as a justification for
reducing the level of offense that Yako committed.
Accordingly, we conclude that no modification of the superior court's
judgement is required. Yako was, and remains, properly convicted of a felony offense.
The judgement of the superior court is AFFIRMED.
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