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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHAWN D. SUMMERALL,
Court of Appeals No. A-13956
Appellant, Trial Court No. 3KO-10-00279 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2783 - July 5, 2024
Appeal from the Superior Court, Third Judicial District,
Kodiak, Daniel Schally, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Ann B. Black, 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 HARBISON.
In 2010, Chawn D. Summerall was convicted of first-degree assault for
1
conduct that took place in 2008. Summerall was sentenced to 20 years with 9 years
1 Former AS 11.41.200(a) (pre-Oct. 2019).
----------------------- Page 2-----------------------
suspended (11 years to serve) and 5 years of probation. He was released to probation in
December 2016. For several years, Summerall complied with the terms of his probation.
However, between May 2020 and December 2021, he committed numerous probation
violations. The State filed four petitions to revoke his probation, and each petition
resulted in Summerall's probation being revoked.
In this appeal, Summerall challenges the superior court's fourth
disposition order, which addressed a probation violation that occurred in 2021. In this
order, the superior court revoked Summerall's probation, imposed some of the
suspended time, and extended his term of probation by 1 year (from 5 years to 6 years).
Summerall argues that this extension of his probation was illegal because it exceeded
the maximum allowable term under the former version of AS 12.55.090(c) that was in
effect between 2016 and 2019. Alternatively, Summerall argues that the court was
clearly mistaken in extending his probation.
Alaska Statute 12.55.090(c) has been amended three times since
Summerall committed the underlying offense. Summerall's first claim requires this
Court to determine which version of the statute applied when the superior court revoked
Summerall's probation for the fourth time: the 2007 law (which established a 10-year
probation maximum); the 2016 law (which lowered the maximum to 5 years); or the
2019 law (which raised the maximum back to 10 years). The extension of Summerall's
probation from 5 years to 6 years was legal under the 2007 and 2019 laws, but illegal
under the 2016 law.
As we are about to explain, we conclude that the superior court's
disposition order was legal because the 2019 law applied and the extended probationary
2
term (6 years) is within the 10-year maximum probationary term set out under that law.
2 We note that applying the 2019 law does not violate the prohibition against the
application of ex post facto laws under the United States and Alaska Constitutions. U.S.
Const. art. I, § 9; Alaska Const. art. I § 15. An ex post facto law is one that is both penal in
nature and retrospectively applied. A law is retrospective if it is "passed after the
occurrence of a fact or commission of an act [and] retrospectively changes the legal
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----------------------- Page 3-----------------------
We also conclude that the superior court's decision to extend Summerall's probation
was not clearly mistaken. We thus reject Summerall's claims and affirm his sentence.
The relevant legislation and the events in Summerall's case
In 2007, AS 12.55.090(c) set the maximum term of probation for a class A
3
felony offense at 10 years. This 10-year maximum was in effect during the commission
of Summerall's offense in 2008, when he was sentenced, and when the judgment was
entered against him.
In 2016, as part of Senate Bill 91 (S.B. 91), the legislature amended
4
AS 12.55.090(c) by reducing the maximum term of probation to 5 years. The
applicability provision of this law indicated that it would apply to "probation ordered
on or after the effective date [July 12, 2016], for offenses committed before, on, or after
5
the effective date."
In 2019, the legislature amended AS 12.55.090(c) to increase the
6
maximum term of probation to 10 years. The applicability provision of this law
consequences or relations of such fact or deed." Danks v. State, 619 P.2d 720, 722 n.3
(Alaska 1980) (internal quotations and citations omitted). For retroactivity purposes, the
critical date is that of the underlying criminal offense (rather than the date that supervised
release is violated). Because the 2019 law did not provide for a greater penalty than the
2007 law - it merely restored the penalty that had been in effect under that law - applying
the 2019 law does not violate the ex post facto clause for defendants sentenced under the
2007 law. However, for defendants who were sentenced when S.B. 91 was in effect,
S.B. 91's ameliorative 5-year probation maximum would apply even if the defendant
committed a probation violation after the 2019 amendment raised the probation maximum
to 10 years.
3 SLA 2007, ch. 24, § 22.
4 SLA 2016, ch. 36, § 79.
5 SLA 2016, ch. 36, § 185(i) (emphasis added).
6 SLA 2019 (1st Special Session), ch. 4, § 68.
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----------------------- Page 4-----------------------
indicated that this amendment would apply "to probation ordered on or after the
7
effective date [July 9, 2019] for conduct occurring on or after the effective date."
In May 2020, Summerall violated his probation for the first time. Between
2020 and 2021, Summerall repeatedly violated his probation. Relevant to this appeal,
Summerall violated his probation in December 2021, and the superior court entered a
disposition order in January 2022. In its order, the court imposed a period of
incarceration and extended Summerall's probation from 5 years to 6 years.
Why we conclude that the 2019 law applies to the disposition of
Summerall's 2021 probation violation
Summerall contends that the trial court was required to apply the 2016 law
- i.e., S.B. 91 - when it determined the appropriate disposition of his fourth petition
to revoke probation. Summerall acknowledges that the 2019 law sets the probation
maximum for his offense at 10 years. However, he notes that the applicability provision
of the 2019 statute refers to "conduct" that occurred "on or after" July 9, 2019, and he
argues that, by "conduct," the legislature meant the underlying criminal offense, rather
8
than the acts that violated his probation. Because his underlying offense occurred in
2008, Summerall contends that the 2019 law did not apply to his case.
Summerall instead argues that the applicable maximum probation term is
controlled by S.B. 91 - the 2016 amendment to AS 12.55.090(c). The applicability
provision of that law states that it "applies to probation ordered on or after the effective
9
date . . . for offenses committed before, on, or after the effective date [July 12, 2016]."
7 SLA 2019 (1st Special Session), ch. 4, § 142(d)(1) (emphasis added).
8 To the extent the language is ambiguous, Summerall adds that the rule of lenity
should "preclude H.B. 49's application to individuals facing disposition for a probation
violation who were originally sentenced to a term of probation before H .B. 49's revision
to AS 12.55.090(c) took effect."
9 SLA 2016, ch. 36, § 185(i) (emphasis added). Johnson v. State held that "probation
ordered" refers to "any new periods of probation-as well as any extension of the original
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----------------------- Page 5-----------------------
Summerall argues that S.B. 91 applied to his case because (1) the court entered the
disposition order extending his probation in January 2022, which was "on or after"
S.B. 91's effective date of July 12, 2016 and (2) he committed the underlying offense
in 2008, which was "before, on, or after" the bill's effective date.
By contrast, the State interprets the 2019 amendment's reference to
"conduct" to mean the act of violating probation rather than the act of committing the
underlying criminal offense. Under this interpretation, the 2019 law applies because
Summerall's probation violations occurred "on or after" its effective date of
July 9, 2019.
The proper interpretation of a statute is a question of law to which we
apply our independent judgment.10 When "interpreting 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."11 Under Alaska's sliding scale approach to statutory interpretation, "the plainer
the statutory language is, the more convincing the evidence of contrary legislative
purpose or intent must be."12
We begin by considering the statutory language of the 2019 amendment
to AS 12.55.090(c). To determine what the legislature meant by the word "conduct" in
probation period-ordered on or after the effective date." Johnson v. State , 477 P.3d 665,
668 (Alaska App. 2020). Because Summerall's period of probation was extended, he had
probation ordered in 2022 under our interpretation of that phrase in Johnson .
10 Kohlhaas v. State , 518 P.3d 1095, 1103 (Alaska 2022).
11 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019)
(internal quotations omitted).
12 Muller v. BP Expl. (Alaska) Inc. , 923 P.2d 783, 788 (Alaska 1996).
- 5 - 2783
----------------------- Page 6-----------------------
this statute, we must consider its plain meaning not in isolation, but in the context of
the whole statute.13
Two canons of construction prove useful in this analysis. First, under the
canon of consistent usage (a canon that "is not . . . cast aside lightly"), "words are
presumed to bear the same meaning throughout a text."14 And second, when interpreting
a statute, we must 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."15
When considered in isolation, the word "conduct" is ambiguous.
"Conduct" could plausibly refer to the act of committing the underlying criminal
offense, as Summerall claims, or it could refer to the act of violating a condition of
probation, as the State claims. However, surrounding statutory provisions lend support
to the State's position that "conduct" means the act of violating a condition of probation.
The applicability section, section 142 of the 2019 law, has eleven separate
subsections.16 Seven of these subsections, including subsection (d) at issue in this case,
state that they apply "on or after the effective date . . . for conduct occurring on or after
13 Murphy v. Fairbanks N. Star Borough , 494 P.3d 556, 564 (Alaska 2021) (explaining
that "we do not read portions of a statute in isolation. When construing a statute, we must,
whenever possible, interpret each part of section of a statute with every other part or
section, so as to create a harmonious whole." (internal quotations and alterations omitted));
Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98-99 (Alaska 2012).
14 Forrer v. State, 471 P.3d 569, 597 (Alaska 2020) (internal citations omitted)
(applying the canon to the interpretation of Alaska's constitution); see also Bohn v.
Providence Health Servs. - Washington, 484 P.3d 584, 595 (Alaska 2021) (applying the
canon to the interpretation of an Alaska statute).
15 Johnson v. State , 380 P.3d 653, 656 (Alaska 2016).
16 SLA 2019 (1st Special Session), ch. 4, § 142.
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----------------------- Page 7-----------------------
the effective date."17 Two other subsections state that they apply to "offenses committed
on or after the effective date."18 Another subsection states that it applies to "offenses
committed before, on, or after the effective date."19 The fact that some of section 142's
subsections refer to "conduct" and others refer to "offenses" indicates that these terms
have distinct meanings. If "conduct" and "offense" had interchangeable meanings, the
legislature would have used one consistent term.
Of these two terms, "offense" is more specific and "conduct" is more
general. "Offense" generally refers to a crime or violation,20 whereas "conduct" refers
more generally to "[p]ersonal behavior, whether by action or inaction, verbal or
nonverbal; the manner in which a person behaves; collectively, a person's deeds."21
The text thus supports the State's interpretation: that "conduct" means the
act of violating probation. The legislature's decision to use the terms "conduct" and
"offense" in different subsections of the applicability section, coupled with the plain
meaning of those terms, suggests that the terms have different meanings. Had the
legislature intended for section 142 to only apply to crimes that were committed on or
after the effective date, the legislature would have stated that this provision of law
applied to "offenses" committed on or after the effective date in every subsection rather
17 SLA 2019 (1st Special Session), ch. 4, § 142 (b), (d) - (i) (emphasis added).
18 SLA 2019 (1st Special Session), ch. 4, § 142 (a), (c), (emphasis added).
19 SLA 2019 (1st Special Session), ch. 4, § 142(j).
20 See offense, Black's Law Dictionary (11th ed. 2019). The term "offense" is defined
in AS 11.81.900(b)(41) as "conduct for which a sentence of imprisonment or fine is
authorized; an offense is either a crime or a violation."
21 Conduct, Black's Law Dictionary (11th ed. 2019). The term "conduct" is defined in
AS 11.81.900(b)(7) as "an act or omission and its accompanying mental state."
- 7 - 2783
----------------------- Page 8-----------------------
than to "conduct" committed on or after the effective date, as used in some
subsections.22
We have also considered the statute's legislative history. In 2019, the
Governor drafted a crime bill and transmitted it to the House (H.B. 49) and Senate
(S.B. 32) for concurrent consideration. Ultimately, only H.B. 49 was enacted into law.
On January 22, 2019, the Governor provided the house with a letter to
accompany H.B. 49.23 In it, the Governor explained that "the most serious threat facing
Alaska is crime" and that the passage of S.B. 91 in 2016 "limited our ability to address
the increase in crime" and "contributed to the loss of ... our ability to keep Alaskans
safe."24 The Governor explained that H.B. 49, if enacted, would "repeal[] provisions of
S.B. 91 that relate to the classification of crimes, sentencing, and probation of
offenders" and would "return[]" the "maximum probation lengths . . . to lengths
allowable before the passage of S.B. 91."25
In February 2019, H.B. 49 was introduced in the House Rules Committee.
In this original bill, AS 12.55.090(c)'s applicability provision had identical language to
the bill that was ultimately enacted:
AS 12.55.090(c), as amended by sec. 37 of this Act, applies
to probation ordered on or after the effective date of sec. 37
of this Act for conduct occurring on or after the effective
date of sec. 37 of this Act.[26]
22 Notably, the legislature used the term "conduct" (rather than "offense") in the
applicability provision for all subsections relating to probation and parole. See SLA 2019
(1st Special Session), ch. 4, § 142(d)-(h).
23 Letter from Governor Mike Dunleavy to the Chief Clerk of the Alaska House of
Representatives regarding House Bill 49 (January 22, 2019).
24 Id.
25 Id.
26 H.B. 49, 31st Leg., 1st Sess. (Version A) (as introduced, Feb. 20, 2019).
- 8 - 2783
----------------------- Page 9-----------------------
On March 25, 2019, Deputy Attorney General Robert Henderson
appeared before the House Judiciary Committee. Henderson explained that H.B. 49
would "return[] Alaska's . . . sentencing laws to what they were before 2016," which
would provide "more options" to judges in exercising their sentencing discretion.27
Henderson also briefly addressed AS 12.55.090(c), stating that H.B. 49 "returns the law
to what it was pre-2016 as with regard to the availability and the length of probation
and it increases probation."28
H.B. 49 was enacted in summer 2019.29 While many committee hearings
were held prior to the law's passage, the legislature did not substantively discuss the
applicability provision of the bill. However, during that same legislative session, the
Governor introduced S.B. 32 in the Senate. The legislature did discuss the applicability
provision of the original version of S.B. 32, which had identical language to the original
version of H.B. 49, and thus is relevant to our analysis.30
Summerall contends that these discussions support his view that when the
legislature enlarged the period of probation for "conduct" occurring on or after the
effective date, it was referring to the commission of the underlying criminal offense
rather than the act of violating probation.
Summerall relies on a discussion that took place on February 8, 2019,
when Deputy Attorney General Robert Henderson appeared before the Senate Judiciary
Committee. Henderson explained S.B. 32's proposed change to AS 12.55.090(c) as
follows:
27 Audio of House Judiciary Committee, House Bill 49, testimony of Deputy Attorney
General Robert Henderson, at 1:06:08 - 1:07:04 (Mar. 25, 2019).
28 Id. at 2:52:20 - 2:52:46.
29 SLA 2019 (1st Special Session), ch. 4.
30 Compare S.B. 32, 31st Leg., 1st Sess. (Version A) (as introduced, Jan. 23, 2019),
with H.B. 49, 31st Leg., 1st Sess. (Version A) (as introduced, Feb. 20, 2019).
- 9 - 2783
----------------------- Page 10-----------------------
So moving to section 37, section 37 increases the maximum
period of probation for felony sex offenses from 15 years to
25 years. It also increases the maximum period of probation
for all other offenses to 10 years. One of the things that
S.B. 91 did is it limited the length of time a person could be
put on probation depending on which offense they were
convicted of. This returns that discretion to the court and
allows the court to put somebody on probation for the length
of time necessary, based on that judge's independent
judgment as to what would be appropriate and necessary.[31]
Following this explanation, Chairwoman Shelley Hughes and Henderson
discussed how someone sentenced while S.B. 91 was in effect would be impacted by
these changes:
Hughes : What happens if someone were sentenced
during the period S.B. 91 was in effect. Does this apply to
them? Or will they have the shorter probation periods?
Henderson : Madame Chair, I am thinking, because
that has to do with the applicability section, a person would
be - the criminal penalties that would govern that conduct
would be what existed at the time they committed the
offense.[32]
Ultimately, S.B. 32 proceeded through the Senate Judiciary, State Affairs,
and Finance Committees. The last committee meeting on S.B. 32 was held on
May 3, 2019. Ultimately, it was S.B. 32's companion bill, H.B. 49, that was signed into
law.
On appeal, Summerall contends that Henderson's answer to Hughes's
question equated the term "conduct" in the applicability section with the term "offense."
But Henderson was not asked to discuss the bill's impact on probation revocations for
people sentenced prior to S.B. 91; instead, Hughes's question asked about people
31 Audio of Senate Judiciary Committee, Senate Bill 32, testimony of Deputy Attorney
General Robert Henderson, at 2:29:13 - 2:29:51 (Feb. 8, 2019).
32 Id. at 2:29:51 - 2:30:24.
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sentenced during the time that S.B. 91 was in effect. We accordingly do not view
Henderson's response as useful in determining whether the legislature intended the
increased probation period to apply to a disposition order entered in connection with a
crime that was committed before S.B. 91 was enacted.
For similar reasons, we reject Summerall's claim that Johnson v. State
supports his position.33 In Johnson, we held that the probation maximums set out in
S.B. 91 apply where a defendant committed their offense before S.B. 91, but had their
probation revoked during the time that S.B. 91 was effective.34 Johnson is factually
distinct from the present matter because Summerall committed his offense before
S.B. 91 but violated probation and had his probation revoked after S.B. 91 was repealed.
"The goal of statutory construction is to give effect to the legislature 's
intent, with due regard for the meaning the statutory language conveys to others."35 As
we have explained, the legislature's stated intention was to repeal S.B. 91 and to return
the maximum period of probation to 10 years . This goal is better effectuated by
interpreting "conduct" to mean a new probation violation, because the amendment
would apply to a broader swath of cases. Furthermore, both the plain language of the
2019 amendment to AS 12.55.090(c) and the statute's legislative history support the
interpretation that the term "conduct" refers to a defendant's act of violating their
probation rather than their act of committing the underlying criminal offense .
Interpreted this way, the court lawfully extended Summerall's probation from 5 to 6
years because the 2019 amendment to AS 12.55.090(c) - allowing for a maximum
term of probation of 10 years - applied to the 2022 disposition of his 2021 probation
33 Johnson v. State , 477 P.3d 665 (Alaska App. 2020).
34 Id. at 666-69.
35 City of Valdez v. State, 372 P.3d 240, 254 (Alaska 2016) (quoting City of Fairbanks
v. Amoco Chem. Co., 952 P.2d 1173, 1178 (Alaska 1998)).
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----------------------- Page 12-----------------------
violation. We accordingly reject Summerall's challenge to the extension of his
probation.
Why we conclude that the superior court's decision to extend Summerall's
probation was not clearly mistaken
In State v. Pulusila , the Alaska Supreme Court explained the standard for
sentencing defendants following probation violations:
The trial court has substantial discretion at the disposition
stage. A trial court can impose a sentence less than jail time
or otherwise change the terms and conditions of probation
without imposing full remaining jail time. . . . A court can
consider any relevant information in the record, including
"the original offense, the offender, and the defendant's
intervening conduct."[36]
On appeal, a sentence will only be reversed if the disposition was clearly mistaken -
i.e., outside the permissible range of reasonable sentences.37
The "clearly mistaken test is founded on two concepts: first, that
reasonable judges, confronted with identical facts, can and will differ on what
constitutes an appropriate sentence; . . . second, that society is willing to accept these
sentencing discrepancies, so long as a judge's sentencing decision falls within a
permissible range of reasonable sentences."38
Summerall argues that the trial court was clearly mistaken in extending
his probation by 1 year (from 5 years to 6 years). In support of this claim, he cites to
research that "longer terms of probation can be counterproductive," and that the 1-year
36 State v. Pulusila, 467 P.3d 211, 218 (Alaska 2020) (quoting Betzner v. State, 768
P.2d 1156 (Alaska App. 1989)).
37 McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974); Covington v. State, 747 P.2d
550, 554 (Alaska App. 1987); Smith v. State, 349 P.3d 1087, 1091 (Alaska App. 2015).
38 Smith, 349 P.3d at 1091 (omission in original) (internal quotations omitted).
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----------------------- Page 13-----------------------
extension was clearly mistaken because the outstanding 18 months that Summerall had
on probation (notwithstanding the extension) was "sufficient" to usher his "reentry back
into society." Summerall did not specifically address why, in the context of his case,
the 1-year extension was clearly mistaken.
In 2010, Summerall was convicted of first-degree assault for his part in
beating a man who later died of his injuries.39 He was sentenced to 20 years with 9 years
suspended (11 years to serve), and 5 years of probation. During the sentencing hearing,
the court remarked that Summerall had a "severe alcohol problem." This remark was
supported by (1) the facts of the offense as described in the presentence report,
(2) Summerall's criminal history, and (3) Summerall's own allocution to the court. The
court found that, although the record supported sentencing Summerall to 20 years flat,
due to Summerall's recent sobriety, a suspended sentence with a probation term tailored
to address his substance abuse was warranted.
Between May 2020 and December 2021, Summerall violated conditions
of his probation four separate times. Each violation stemmed from Summerall either
using alcohol or drugs, or failing to submit to testing for alcohol or drugs. The
seriousness of Summerall's violations appeared to escalate, as did the severity of the
court's disposition orders. Summerall received 14 days for his first violation -
consuming alcohol; 75 days followed by up to 6 months in a Community Residential
Center (CRC) for his second violation - using methamphetamine and refusing to
provide a urine sample; and 180 days for his third violation - using marijuana and
again using methamphetamine.
In January 2022, the court held a combined adjudication and disposition
hearing on Summerall's fourth petition to revoke probation. At this hearing, Summerall
admitted to violating his probation by using marijuana and methamphetamine. The
39 Summerall was acquitted of second-degree murder, but the jury found him guilty of
first-degree assault.
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----------------------- Page 14-----------------------
prosecutor explained to the court that Summerall's drug use while on probation had
been "pretty consistent." Ultimately, the court revoked Summerall's probation,
sentenced him to 6 months to serve, extended his probation by 1 year, and authorized
his probation officer to admit him to CRC (substance abuse treatment) for 6 months.
The court explained that it had "reentry concerns" relating to Summerall's drug and
alcohol addictions. The court found that a "sufficiently lengthy period of probation"
was needed to ensure that Summerall would "have a successful reentry back into
society."
This 1-year extension of Summerall's probation was not clearly mistaken.
As the court noted, by extending Summerall's probation by 1 year, the court was
addressing Summerall's substance abuse issues in order to further his rehabilitation. A
period of probation would provide Summerall with both monitoring and an incentive to
access substance abuse treatment resources - tools that could help him regain his
sobriety.
When Summerall was sentenced on the underlying offense, the court
indicated that Summerall's sobriety was very important to the protection of the
community and to Summerall's rehabilitation. The 1-year extension of Summerall's
probation was supported by the Chaney criteria, and was reasonable under the
circumstances. We accordingly reject Summerall's claim that the court's disposition
order was clearly mistaken.
Conclusion
We AFFIRM the judgment of the superior court.
- 14 - 2783
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