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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TESSA MICHAEL HILLYER,
Court of Appeals No. A-13901
Appellant, Trial Court No. 4FA-21-00300 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2760 - October 6, 2023
Appeal from the District Court, Fourth Judicial District,
Fairbanks, Matthew Christian, Judge.
Appearances: Julia Bedell, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Donald Soderstrom, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge ALLARD.
In 2007, the Alaska legislature amended AS 44.41.035, the statute
governing Alaska's DNA identification registration system, to authorize collection of
DNA samples from people who have been arrested for certain crimes, including "a
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1
crime against a person." A "crime against a person" is defined statutorily as "an
2
offense, or an attempt or solicitation to commit an offense, under AS 11.41 [.]"
However, the statute also provides for an expungement procedure in cases
where the charged offense does not end in a conviction. Alaska Statute 44.41.035(i)
provides, in pertinent part, that "[t]he Department of Public Safety shall destroy the
material in the system relating to a person or minor on the written request of the person
or minor, if the request is accompanied by a certified copy of a court order making the
written findings required by this subsection." The written findings required by the
subsection include:
(A) the person arrested was released without being charged;
(B) the criminal complaint, indictment, presentment, or
information for the offense for which the person was arrested
was dismissed, and a criminal complaint, indictment,
presentment, or information for an offense requiring
submission of a DNA sample was not refiled; or
(C) the person was found by the trier of fact to be not guilty
of the offense for which the person was arrested and was not
convicted of another offense requiring submission of a DNA
sample under (b)(1) or (2) of this section.[3]
The current case involves a defendant, Tessa Michael Hillyer, who was
arrested in Fairbanks and charged with fourth-degree assault and fourth-degree criminal
4
mischief based on an altercation with her roommate . Hillyer subsequently pleaded
5
guilty, pursuant to a plea agreement, to a reduced charge of disorderly conduct.
1 SLA 2007, ch. 24, § 32.
2 AS 44.41.035(s)(2).
3 AS 44.41.035(i)(2)(A)-(C).
4 AS 11.41.230 and AS 11.46.484(a)(1), respectively.
5 AS 11.61.110(a)(6).
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Pursuant to the plea agreement, the State dismissed the criminal mischief charge and
amended the assault charge, replacing it with the disorderly conduct charge to which
Hillyer pleaded.
Following her sentencing, Hillyer requested that the district court issue an
order establishing that the "crime against a person" (with which she had originally been
charged) was dismissed so that the Department of Public Safety would destroy the DNA
sample that had been collected pursuant to AS 44.41.035(b)(6).
The State initially opposed this request in the trial court proceedings,
arguing that the assault charge had been "reduced" not "dismissed." The district court
agreed with this reasoning and refused to issue the requested order. Hillyer appealed.
On appeal, the State now concedes that there is no functional difference,
for purposes of the DNA registration statute, between the State reducing the assault
charge to disorderly conduct and the State dismissing the assault charge and filing a
6
new complaint charging disorderly conduct. In other words, the State agrees that when
a criminal complaint is amended so that it no longer alleges that the defendant
committed an offense requiring submission of a DNA sample, the requirements of
AS 44.41.035(i)(2)(B) are met. We have reviewed the relevant legislative history and
7
we agree that the State's concession is well-founded.
However, the State raises a new objection on appeal that we must address.
The State argues that the district court and this Court lack subject matter jurisdiction in
this matter because Hillyer's request for an order under AS 44.41.035(i) is "collateral"
to her criminal case. For the reasons explained here, we disagree.
6 See Sherbahn v. Kerkove, 987 P.2d 195, 201 (Alaska 1999) ("In ascertaining the
legislature's intent, we are obliged to avoid construing a statute in a way that leads to a
glaringly absurd result.").
7 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court
to independently assess whether a concession of error "is supported by the record on appeal
and has legal foundation").
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Why we conclude that this Court has jurisdiction
The State argues that neither the district court nor this Court has
jurisdiction over this case. We begin by explaining why this Court has jurisdiction to
decide this appeal.
Whether a court has subject matter jurisdiction is a question of law that
8
we review de novo. As the State points out, the legislature created this Court as one of
9
limited subject matter jurisdiction. When the legislature created this Court, it provided
in AS 22.07.020(c) that we have appellate jurisdiction to review final decisions of the
district court in criminal cases - more specifically, that we have jurisdiction to review
"a final decision of the district court in an action or proceeding involving criminal
prosecution, post-conviction relief, extradition, probation and parole, habeas corpus, or
bail."10
The State now argues that we lack jurisdiction under this provision
because the district court itself lacks jurisdiction to issue a DNA expungement order in
a closed criminal case. As we will soon discuss in more detail, the State is incorrect that
the district court lacks jurisdiction to issue an expungement order. But even assuming
this were true, this Court would still have jurisdiction to review the district court's
denial of Hillyer's request in this case.
As this Court has previously explained, our jurisdictional statute
"describes our jurisdiction in terms of the types of litigation that might give rise to an
appeal, rather than in terms of the types of legal issues that we might have to decide."11
8 See McCaffery v. Green , 931 P.2d 407, 408 n.3 (Alaska 1997) ("Jurisdictional issues
are questions of law subject to this court's independent judgment.").
9 See AS 22.07.020(c) (defining Court of Appeals jurisdiction); see also
AS 22.15.060 (defining district court criminal jurisdiction).
10 SLA 1980, ch. 12, § 1.
11 Holden v. State, 190 P.3d 725, 729 (Alaska App. 2008).
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Of relevance here, we have jurisdiction over "a final decision of the district court in an
action or proceeding involving criminal prosecution."12 Here, there is no dispute that
the district court's order was a "final decision" nor that it was issued in "an action or
proceeding involving criminal prosecution." Instead, the dispute is whether the district
court had jurisdiction to decide this issue. It is therefore clear that this Court has
jurisdiction to hear this appeal. (Of course, were we to conclude that the district court
lacked jurisdiction to issue the order requested by Hillyer, we would decline to reach
the underlying question of whether Hillyer is entitled to that order. But that concerns a
question of how to decide this appeal, not whether we have jurisdiction to do so.)
Why we conclude the district court has jurisdiction to issue the order
required by Alaska's expungement statute
The State's primary argument in this appeal is that the district court lacks
jurisdiction to issue the order required under AS 44.41.035(i). The State asserts that the
district court, like this Court, was created by the legislature and is a court of limited
subject matter jurisdiction; that the district court only has jurisdiction over a narrow
subset of criminal proceedings (namely prosecutions for misdemeanors and violations);
and that a request for expungement is not a criminal proceeding.13 We reject this
argument for two reasons.
First, contrary to the representations of both parties, AS 44.41.035(i) does
not require a court to order injunctive relief against the Department of Public Safety.
Rather, it merely requires the court to issue findings describing the result of a criminal
proceeding it conducted.
Under AS 44.41.035(i), the Department of Public Safety is required to
destroy DNA if it receives a request to do so and that request is accompanied by a court
12 AS 22.07.020(c).
13 See AS 22.15.060 (defining district court criminal jurisdiction).
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order making certain required findings - namely, that the person was not convicted of
the relevant charges (or that any such conviction was reversed), and that the person has
not otherwise been convicted of a crime requiring a sample to be taken. The order in
question need not actually "order" (i.e., instruct) the Department of Public Safety to
take any specific action.14 Rather, the order must only "mak[e] the written findings
required by [AS 44.41.035(i)]." It is the statute itself that requires action, providing that
the Department of Public Safety "shall destroy the material in the system" upon receipt
of an order containing such findings.
Given the minimal requirements of the order contemplated by
AS 44.41.035(i), we question whether the issue presented here is truly one of subject
matter jurisdiction at all. Subject matter jurisdiction refers to "the legal authority of a
court to hear and decide a particular type of case."15 But the order required by
AS 44.41.035(i) does not require the court to "hear and decide" a case; it simply
requires the court to issue findings describing the outcome of prior judicial
proceedings.16
14 Compare AS 44.41.035(i) ("The Department of Public Safety shall destroy the
material in the system relating to a person or minor on the written request of the person or
minor, if the request is accompanied by a certified copy of a court order making the written
findings required by this subsection."), with N.Y. Exec. Law § 995-c(9)(a) (McKinney
2012) (providing that an "individual may apply to the court in which the judgment of
conviction was originally entered for an order directing the expungement of any DNA
record").
15 Nw. Med. Imaging, Inc. v. State, Dep't of Revenue , 151 P.3d 434, 438 (Alaska 2006)
(citing Erwin Chemerinsky, Federal Jurisdiction, at 257 (3d ed. 1999)).
16 We note that an appropriate jurisdictional basis for the order required by
AS 44.41.035(i) would be ancillary jurisdiction, which empowers "a court to function
successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its
decrees" in those cases, like Hillyer's underlying criminal case in the district court, over
which the court already has subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co.
of Am. , 511 U.S. 375, 379-80 (1994); see also State v. Newcomb, 869 P.2d 1193, 1194-95
(Alaska App. 1994) (discussing the doctrine of ancillary jurisdiction); cf . U.S. v. Sumner,
226 F.3d 1005, 1014-15 (9th Cir. 2000) (holding that federal district courts have ancillary
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The second reason for concluding that the district court has jurisdiction to
issue findings under AS 44.41.035(i) is that the legislative history makes clear that the
legislature expected that these findings would be made by the court with jurisdiction
over the defendant's criminal case. 17
Alaska Statute 44.41.035, Alaska's DNA registration statute, was first
enacted in 1995.18 As originally enacted, the statute required DNA collection from
persons convicted of a felony "crime against a person."19 The statute also required DNA
collection from minors who were sixteen or older and who were adjudicated as a
delinquent for an act that would be a felony crime against a person if committed by an
adult.20 In other words, as originally enacted, the DNA registration statute only required
collection of DNA samples from persons convicted in criminal cases or adjudicated
delinquent in juvenile cases. The statute had a provision requiring the Department of
Public Safety to destroy the DNA sample if the person's conviction or adjudication was
reversed and the person was either (1) not retried or readjudicated for the crime; or
(2) was acquitted after retrial or readjudication.21
jurisdiction to expunge criminal records when the underlying arrest or conviction was
unlawful, or to correct a clerical error).
17 See Bowen v. State , 533 P.3d 935, 937 (Alaska App. 2023) ("When we interpret a
statute, we 'consider its language, its purpose, and its legislative history, in an attempt to
give effect to the legislature's intent, with due regard for the meaning the statutory language
conveys to others.'" (quoting Cleveland v. State, 241 P.3d 504, 506 (Alaska App. 2010))).
18 SLA 1995, ch. 10, § 2.
19 Former AS 44.41.035(b) (1995); see also former AS 44.41.035(j)(1) (1995)
(defining "crime against a person" as "a felony offense, or a felony attempt to commit an
offense, under AS 11.41, other than AS 11.41.320, or under AS 11.46.400").
20 Former AS 44.41.035(b) (1995).
21 Former AS 44.41.035(i) (1995) ("The Department of Public Safety shall destroy the
material in the system relating to a person if (1) the conviction or adjudication that
subjected the person to having a sample taken under this section is reversed; and (2) the
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In 2000, the legislature amended the statute to require a court order before
the Department of Public Safety could expunge a person's DNA sample.22 Specifically,
the language of AS 44.41.035(i) was amended as follows:
The Department of Public Safety shall, upon receipt of a
court order, destroy the material in the system relating to a
person. The court shall issue the order if it determines that
(1) the conviction or adjudication that subjected the person
to having a sample taken under this section is reversed; and
(2) the person
(A) is not retried or readjudicated for the crime; or
(B) after retrial, is acquitted of the crime or after
readjudication for the crime is not found to be a
delinquent.[23]
This amendment was discussed at a House Judiciary Committee hearing
on March 29, 2000. A representative from the Anchorage Police Department testified
that the requirement of a court order was intended to remedy the lack of "a clear
mechanism to remove a person's DNA from the registry" and would require a person
to "pursue a court order in order to remove his DNA from the registry."24
Representative Eric Croft questioned why the burden should be shifted
from the department to the person "who was just declared innocent of a crime."25 The
Department of Public Safety spokesperson, Deputy Commissioner Del Smith,
person (A) is not retried or readjudicated for the crime; or (B) after retrial, is acquitted of
the crime or after readjudication for the crime is not found to be a delinquent.").
22 SLA 2000, ch. 44, § 5.
23 Id. (emphasis added).
24 Minutes of House Judiciary Comm., House Bill 294, testimony of John McKinnon,
Officer, Anchorage Police Dep't, Tape 00-42, Side A at 001 (Mar. 29, 2000).
25 Minutes of House Judiciary Comm., House Bill 294, commentary of Representative
Eric Croft, Tape 00-42, Side A at 157 (Mar. 29, 2000).
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responded that the intent was to provide "a clearer path to get rid of a DNA sample."26
He viewed the court order requirement as an "opportunity to ensure that it happens
rather than as a creation of more difficulties for a former defendant."27 The Anchorage
Police Department spokesperson echoed the belief that the court order requirement was
to provide a "clear path" to the person seeking to have their DNA expunged and Deputy
Commissioner Smith emphasized that, while there "may be some inadvertent burden,
. . . that is unintentional."28
The subject arose a second time at a House Judiciary Committee hearing
on April 14, 2000. At that hearing, the Alaska Public Defender Agency's Deputy
Director Blair McCune testified that the Agency was concerned about how people
would obtain the court order.29 He asked if a separate lawsuit would have to be filed
and he questioned whether the criminal court would have jurisdiction to issue such an
order.30
In response, Deputy Commissioner Smith testified that "he had never
anticipated that someone would have to file [a law]suit" to get the court order.31 He
explained that the court order was needed to create "an audit trail" of why the DNA
26 Minutes of House Judiciary Comm., House Bill 294, testimony of Del Smith,
Deputy Comm'r, Dep't of Pub. Safety, Tape 00-42, Side A at 220 (Mar. 29, 2000).
27 Id.
28 Minutes of House Judiciary Comm., House Bill 294, testimony of John McKinnon,
Officer, Anchorage Police Dep't, Tape 00-42, Side A at 299 (Mar. 29, 2000); Minutes of
House Judiciary Comm., House Bill 294, testimony of Del Smith, Deputy Comm'r, Dep't
of Pub. Safety, Tape 00-42, Side A at 434 (Mar. 29, 2000).
29 Minutes of House Judiciary Comm., House Bill 294, testimony of Blair McCune,
Deputy Dir., Alaska Pub. Def. Agency, Tape 00-61, Side A at 883 (Apr. 14, 2000).
30 Id.
31 Minutes of House Judiciary Comm., House Bill 294, testimony of Del Smith,
Deputy Comm'r, Dep't of Pub. Safety, Tape 00-61, Side A at 1558 (Apr. 14, 2000).
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sample was destroyed: "It is a way to keep everything above board."32 He testified that
he anticipated that "if an individual was found not guilty or the conviction was reversed,
the individual would contact [the Department of Public Safety] or the district attorney
and the authorities would ask the court to give the authorities an order to get rid of the
DNA sample of that individual."33 He opined that the individual whose DNA had been
collected would be the most motivated to get this done but he had "never anticipated
that there would be a requirement for civil litigation," which did not "make any sense"
to him.34 Chairman Pete Kott agreed that civil litigation to obtain the court order did not
make any sense.35
The legislature also made a minor change to the statutory language
adopting the court order requirement. The originally proposed language required the
court order to be "at the request" of the person whose DNA had been collected .36 But
the legislature amended this language to delete the requirement that the court order be
at the request of the person and instead just refer to "a court order."37 Representative
Croft spoke in approval of this change, emphasizing that the court order "should not be
required at the request of a person but rather the court order should be part of a regular
32 Id.
33 Id.
34 Id.
35 Minutes of House Judiciary Comm., House Bill 294, commentary of Chairman Pete
Kott, Tape 00-61, Side A at 1641 (Apr. 14, 2000).
36 See H.B. 294, 21st Leg., 2d Sess. (as introduced, Jan. 21, 2000).
37 See Minutes of House Judiciary Comm., House Bill 294, Adoption of
Amendment 1, Tape 00-61, Side A at 1945, 2040 (Apr. 14, 2000); C.S.H.B. 294, 21st Leg.,
2d Sess. (as offered by House Judiciary Comm., Apr. 15, 2000, and passed by Senate,
Apr. 20, 2000); see also SLA 2000, ch. 44, § 5.
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administrative process."38 He proposed an arrangement "whereby the court would make
a list each year of people who had been acquitted and have their records expunged."39
No further discussion of the court order requirement occurred during the committee
hearings.
In its briefing on appeal, the State argues that the legislative history is
"ambiguous" with regard to whether the criminal courts were expected to have
jurisdiction to issue the relevant court orders under AS 44.41.035(i). The State therefore
argues that "[t]his ambiguous legislative history is not enough to create jurisdiction
where it does not otherwise explicitly exist."
But, as the legislative history discussed above shows, the legislative intent
was to make it easier rather than more difficult for a person to obtain expungement of
their DNA sample if they qualified for expungement. The primary sponsors of the bill
clearly envisioned that the court order would be simple to obtain and would not require
the filing of a separate civil action. Although not directly stated, the assumption appears
to have been that the criminal justice system would be providing these orders - hence
the suggestion that the person could contact the district attorney's office to obtain the
necessary court order from the court.40
The expectation that criminal defendants would obtain the necessary court
orders through the criminal courts is also demonstrated by a comparison to related
federal legislation. In 2010, the Alaska legislature amended AS 44.41.035(i) to its
current form, which states, in pertinent part, that "[t]he Department of Public Safety
shall destroy the material in the system relating to a person or minor on the written
38 Minutes of House Judiciary Comm., House Bill 294, commentary of Representative
Eric Croft, Tape 00-61, Side A at 2013 (Apr. 14, 2000).
39 Id.
40 See Minutes of House Judiciary Comm., House Bill 294, testimony of Del Smith,
Deputy Comm'r, Dep't of Pub. Safety, Tape 00-61, Side A at 1558 (Apr. 14, 2000).
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request of the person or minor, if the request is accompanied by a certified copy of a
court order making the written findings required by this subsection."41 The legislative
history of this amendment indicates that it was added, in part, because the FBI required
such a procedure in order for a state to submit samples to the national DNA database,
CODIS (Combined DNA Index System).42 The corresponding federal statute, 34 U.S.C.
§ 12592(d)(2), states, in pertinent part:
(A) As a condition of access to the index described in
subsection (a), a State shall promptly expunge from that
index the DNA analysis of a person included in the index by
that State if -
(i) the responsible agency or official of that State
receives, for each conviction of the person of an
offense on the basis of which that analysis was or
could have been included in the index, a certified copy
of a final court order establishing that such conviction
has been overturned; or
(ii) the person has not been convicted of an offense on
the basis of which that analysis was or could have
been included in the index, and the responsible
agency or official of that State receives, for each
charge against the person on the basis of which the
analysis was or could have been included in the index,
a certified copy of a final court order establishing that
such charge has been dismissed or has resulted in an
acquittal or that no charge was filed within the
applicable time period.
41 SLA 2010, ch. 20, § 10.
42 Minutes of Senate Judiciary Comm., Senate Bill 110, testimony of Michelle Collins,
DNA Unit Supervisor, Statewide Crime Lab'y, Dep't of Pub. Safety, 2:26-2:30 p.m.
(Apr. 6, 2009).
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(B) For purposes of subparagraph (A), a court order is not
"final" if time remains for an appeal or application for
discretionary review with respect to the order.[43]
Thus, the federal statute clearly contemplates that states will expunge a
person's DNA sample upon receipt of a "certified copy" of "a final court order" in a
criminal case, although the order is not considered final until the time for appeal or
discretionary review has passed. Using orders from criminal courts in Alaska is
therefore consistent with federal practice.
The State argues that the legislature could not have intended the orders
needed to expunge DNA samples to come from the criminal courts because there will
be circumstances where no criminal court case has been initiated - e.g., when a
person's DNA is collected based on an arrest that never develop s into a criminal case.
But, in the vast majority of cases, an arrest for a crime against a person will be followed
by the initiation of a criminal court proceeding, even if the charges are ultimately
dismissed. In any case, the fact that there may be persons who seek expungement of
their DNA samples from the state system who do not have access to a criminal court
does not mean that the criminal court should not be used to issue orders for those
persons who do fall within their jurisdiction.
In the current case, Hillyer was arrested and charged with fourth-degree
assault - a crime against a person for which her DNA was collectable. When the charge
was reduced to disorderly conduct - a crime for which her DNA was not collectable
- she was entitled to a court order establishing that the assault charge had been
dismissed and she had not been convicted of, or charged with, any other crime for which
her DNA would be collectable. Accordingly, it was error for the district court to deny
her request for an order under AS 44.41.035(i).
43 34 U.S.C. § 12592(d)(2)(A)-(B) (emphasis added).
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Conclusion
We REVERSE the district court's denial of Hillyer's request for a court
order under AS 44.41.035(i) and we REMAND this case to the district court so that the
court can issue an order with the appropriate findings.
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