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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edward Chinuhuk, Herman Malutin, and Christopher Wasili v. State of Alaska (9/18/2020) sp-7482
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
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THE SUPREME COURT OF THE STATE OF ALASKA
EDWARD CHINUHUK, HERMAN )
MALUTIN, and CHRISTOPHER ) Supreme Court Nos. S-16993/17003/
WASILI, ) 17004 (Consolidated)
) Court of Appeals Nos. A-11574/11600/
Petitioners, ) 11716 (Consolidated)
)
v.
) Superior Court Nos. 3AN-09-09305 CR,
) 3AN-09-09927 CR, 4BE-06-00846 CR
STATE OF ALASKA, )
) O P I N I O N
Respondent. )
) No. 7482 - September 18, 2020
)
P
etition for Hearing in File No. S-16993 from the Court of
Appeals of the State of Alaska, on appeal from the Superior
Court of the State of Alaska, Third Judicial District,
Anchorage, Gregory Miller, Judge. Petition for Hearing in
File No. S-17003 from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Michael Spaan,
Judge. Petition for Hearing in File No. S-17004 from the
Court of Appeals of the State of Alaska, on appeal from the
Superior Court of the State of Alaska, Fourth Judicial
District, Bethel, Michael Spaan, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for
Petitioners. Timothy W. Terrell, Assistant Attorney General,
Anchorage, and Kevin G. Clarkson, Attorney General,
Juneau, for Respondent.
----------------------- Page 2-----------------------
Before: Bolger, Chief Justice, Stowers, Maassen, and
Carney, Justices. [Winfree, Justice, not participating.]
STOWERS, Justice.
CARNEY, Justice, dissenting.
I. INTRODUCTION
Petitioners are sex offenderswho received prison sentences with some time
suspended and probation imposed pursuant to a statute that mandated suspended
imprisonment and probation as part of their initial sentences. The statute provided that
the probationary term could not be suspended or reduced. After being released from
prison, repeatedly violating the conditions of probation, and having all of their formerly
suspended time reinstated, the petitioners moved for discharge from probation. Their
motions were denied because the statute mandating probation required the petitioners to
serve the entire probationary term, even if they no longer had suspended time remaining
as an incentive to comply with probation.
While their cases were pending before the court of appeals, the statute was
repealed. The court of appeals held the statute's repeal was not retroactive, and it
affirmed the denial of their motions. We granted their petition for hearing.
We conclude based on the statute's text and legislative history that courts
have no discretion to reduce a sex offender's probation below statutory minimums. We
also conclude that the statute's repeal does not retroactively apply to the petitioners. We
therefore affirm the court of appeals and deny the petitioners the relief they seek.
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II. FACTS AND PROCEEDINGS
A. Facts
1 concerns three sex offenders who
This consolidated petition for hearing
were sentenced pursuant to former AS 12.55.125(o),2
which was in effect from
3
April 2006 to July 2016. These three are among a larger group of sex offenders who
sought to vacate their periods of probation, exchanging longer periods of incarceration
for freedom from the supervision associated with probation. Each was denied the
1 The three petitioners - Edward Chinuhuk, Herman Malutin, and
Christopher Wasili - were appellants in a consolidated appeal to the court of appeals.
Chinuhuk v. State , 413 P.3d 1215, 1217 (Alaska App. 2018). They filed a consolidated
petition for hearing to this court, which we granted. Two other appellants before the
court of appeals, William Alexie and Ross Apangalook, id. at 1215, are not petitioners
in the cases before this court.
2 Section .125(o), ch. 14, § 7, SLA 2006 (repealed 2016), added additional
conditions to the sentences for sex offenders, whose punishment is defined by
AS 12.55.125(i), as follows:
Other than for convictions subject to a mandatory 99-year
sentence, the court shall impose, in addition to an active term
of imprisonment imposed under (i) of this section, a
minimum period of . . . (2) suspended imprisonment of three
years and a minimum period of probation supervision of 10
years for conviction of a class A or class B felony, or
(3) suspended imprisonment of two years and a minimum
period of probation supervision of five years for conviction
of a class C felony. The period of probation is in addition to
any sentence received under (i) of this section and may not be
suspended or reduced. Upon a defendant's release from
confinement in acorrectional facility, the defendant is subject
to this probation requirement and shall submit and comply
with the terms and requirements of the probation.
3 See ch. 14, §§ 7, 15, SLA 2006 (enacting provision); ch. 36, §§ 179, 188,
SLA 2016 (repealing provision).
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----------------------- Page 4-----------------------
opportunity to do so, and they challenge those rulings. Facts specific to each of the three
petitioners follow.
1. Edward Chinuhuk
Edward Chinuhuk was convicted of attempted sexual abuse of a minor in
the second degree, and in June 2010 he was sentenced to five years' imprisonment, with
three years suspended, and placed on probation for five years. He repeatedly violated
his probation conditions by "drinking and being re-arrested immediately upon release"
and was made to serve portions of his previously suspended sentence. By his sixth
violation in December 2012, he had served all but about eight months of his suspended
sentence.
Chinuhuk and his probation officer agreed that he should serve this
remaining time, and Chinuhuk requested that he thereafter be discharged from
4
probation.
The State opposed, arguing that Chinuhuk could not reject his probation.
It argued that his conviction for a sexual felony kept him subject to probation under
former AS 12.55.125(o), asserting that "probation is a mandatory component" of sex
offenders' sentences because the legislature mandated that sex offenders be monitored
and treated after release. The superior court determined that because the length of
probation was "specifically mandated by thelegislaturein AS 12.55.125(o)," it could not
grant Chinuhuk's motion to reject probation. Chinuhuk was sentenced to the remainder
of his suspended sentence and ordered to continue on probation upon his release.
4 See Brown v. State, 559 P.2d 107, 111 n.13 (Alaska 1977) ("[U]nder
Alaska's statutes governing probation the defendant can refuse probation if he deems the
terms too onerous.").
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----------------------- Page 5-----------------------
2. Herman Malutin
Herman Malutin was convicted of the same offense as Chinuhuk, and he
was given the same sentence in August 2010. He also violated his probation repeatedly,
although his non-compliance was more closely related to the underlying offense: he was
residing with minor children, continuing to cultivate his apparent pedophilia, and failing
to attend sex offender treatment. He and the State exchanged arguments similar to those
described in Chinuhuk's case, and Malutin's motion to reject probation was similarly
denied. Like Chinuhuk, he was ordered to serve his remaining suspended time and
remained subject to probation after his release.
3. Christopher Wasili
Christopher Wasili was charged with sexual assault in the second degree,
and in June 2007 he was sentenced to seven years' imprisonment, with two years
suspended, and placed on probation for five years. Wasili had four probation violations
for failing to update his address information in the sex offender registry, failing to report
to his probation officer, failing to obtain permission from his probation officer before
changing his residence, and consuming alcohol. Like the other petitioners, Wasili's
motion to reject probation was denied, and his remaining suspended time was imposed
without relief from the balance of his probationary term.
B. Proceedings
All three offenders (collectively Chinuhuk) asked the court of appeals to
reverse the denial of their motions and permit them to end their terms of probation; the
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----------------------- Page 6-----------------------
5
court consolidated their appeals. While the cases were on appeal, the legislature enacted
6 7
Senate Bill (S.B.) 91,
which repealed former AS 12.55.125(o).
Chinuhuk's motion to reject probation was denied on the basis of
section .125(o). Noting that section's repeal, Chinuhuk moved to have his appeal
declared moot and his case remanded for entry of an order terminating his probation.
The State opposed, arguing that Alaska's saving statute AS 01.10.100 precluded
AS 12.55.125(o)'s repeal from affecting Chinuhuk.8 Chinuhuk replied that
AS 01.10.100 did not apply to him because the repeal of section .125(o) did not
extinguish a penalty but instead restored a right: his right to refuse probation.
After the parties had filed their motion papers with the court of appeals, but
before the court issued its decision, the legislature passed Senate Bill (S.B.) 54, which
9 As enacted in 2017 AS 12.55.125(q) substantially reinstated
added AS 12.55.125(q).
the language of AS 12.55.125(o) but with some variations.10
5 Chinuhuk, 413 P.3d at 1217.
6 Id.
7 Ch. 36, § 179, SLA 2016.
8 AS 01.10.100(a) provides in pertinent part: "The repeal or amendment of
a law does not release or extinguish any penalty . . . incurred . . . unless the repealing or
amending act so provides expressly. The law shall be treated as remaining in force for
the purpose of sustaining any proper action . . . for the enforcement of the . . .
penalty . . . ."
9 Ch. 1, § 34, 4SSLA 2017.
10 Compare ch. 1, § 34, 4SSLA 2017, with ch. 14, § 7, SLA 2006.
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----------------------- Page 7-----------------------
The court of appeals rejected Chinuhuk's argument that his appeal was
11
rendered moot by S.B. 91.
In doing so, the court was influenced by the U.S. Supreme
12 which dealt with an
Court's decision in Warden, Lewisburg Penitentiary v. Marrero,
13 The Supreme
analogous claim involving changes to federal drug sentencing laws.
Court concluded in Marrero that the defendant's sentence was a substantive component
of his prosecution under the prior law, and - applying a similar saving statute14 - it
rejected the defendant's argument that he should benefit from recent statutory changes
allowing drug offenders to apply for parole.15 Following this example, the court of
appeals concluded that Chinuhuk was not entitled to reject probation simply because of
the repeal of AS 12.55.125(o); therefore S.B. 91 did not moot his appeal or direct its
outcome in his favor.16 The court of appeals did not acknowledge the passage of S.B. 54
in its issued opinion.17
11 Chinuhuk, 413 P.3d at 1217.
12 417 U.S. 653 (1974).
13 Chinuhuk, 413 P.3d at 1217.
14 Marrero involved consideration of 1 U.S.C. § 109 (1970), which states in
pertinent part: "The repeal of any statute shall not . . . release or extinguish any
penalty . . . incurred under such statute, unless the repealing Act shall so expressly
provide, and such statute shall be treated as s till remaining in force for the purpose of
sustaining any proper action . . . for the enforcement of such penalty . . . ."
15 Marrero, 417 U.S. at 657-64.
16 Chinuhuk, 413 P.3d at 1218.
17 See id. at 1215-20.
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18
On the merits, the court of appeals also sided with the State. It
acknowledged that probation is generally a contractual arrangement which the offender
19 But the legislature has the power to create mandatory probation, and the
can reject.
legislative history of section .125(o) convinced the court of appeals that the legislature
had intended to exercise this power.20 The court of appeals denied relief to Chinuhuk.21
Chinuhuk filed a petition for hearing, which we granted. While his case
was on appeal before this court, the legislature amended AS 12.55.125(q) again as part
of House Bill 49.22 Effective July 2019 AS 12.55.125(q) now contains substantively
identical language to former AS 12.55.125(o).23
III. STANDARD OF REVIEW
"The interpretation of a statute . . . is a question of law to which we apply
24 "[W]e interpret the statute according to reason,
our independent judgment."
practicality, and common sense, considering the meaning of the statute's language, its
legislative history, and its purpose."25 "We do not mechanically apply the plain meaning
rule, using instead a sliding scale approach to statutory interpretation, in which 'the
18 Id. at 1218-20.
19 Id. at 1219.
20 Id. at 1219-20.
21 Id. at 1220.
22 Ch. 4, § 74, FSSLA 2019.
23 Compare id., with ch. 14, § 7, SLA 2006.
24 State v. Fyfe, 370 P.3d 1092, 1094 (Alaska 2016) (alteration in original)
(quoting Alaska Judicial Council v. Kruse, 331 P.3d 375, 379 (Alaska 2014)).
25 Id. at 1095 (alteration in original) (quoting State, Div. of Workers' Comp.
v. Titan Enters., LLC, 338 P.3d 316, 320 (Alaska 2014)).
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----------------------- Page 9-----------------------
plainer thestatutory languageis, themoreconvincing theevidenceofcontrary legislative
purpose or intent must be.' " 26
IV. DISCUSSION
We begin with a general discussion of probation as historically
implemented in Alaska. Next, we analyze the core issues presented in this case. In our
view this case presents two primary questions: first, whether the trial court had
discretion to revoke Chinuhuk's probation and second, whether section .125(o)'s repeal
changes this analysis.
We employ a textual analysis and an examination of legislative history to
conclude that the trial court had no discretion to modify the terms of Chinuhuk's
probation. We also conclude that the repeal of section .125(o) was not retroactive and
thus did not reestablish Chinuhuk's right to refuse probation.
A. Probation Systems In Alaska
As both parties note, Alaska law usually permits a court to impose
probation only in lieu of some other punishment. Alaska Statute 12.55.080 authorizes
a superior court to "suspend . . . the sentence or a portion thereof[] and place the
defendant on probation . . . upon the terms and conditions [it] considers best." In Kelly
v. State the court of appeals described suspension as a necessary prerequisite to
probation: "When a court sentences a defendant to serve a probationary period, the court
27
must suspend a portion of the sentence or else the probationary term is meaningless."
Alaska Statute 12.55.090(b) permits a court to "revoke or modify any condition of
probation [or] change the period of probation." The court of appeals held in Kelly that
26 Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014)
(quoting McDonnell v. State Farm Mut. Auto. Ins. Co. , 299 P.3d 715, 721 (Alaska
2013)).
27 842 P.2d 612, 613 (Alaska App. 1992).
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if a superior court imposes the entirety of a probationer's suspended sentence following
a probation violation, the court has no subsequent authority to impose probation. 28
The parties agree about this principle, and it serves as the usual approach
to probation in Alaska. They also agree that the legislature can abrogate this approach,
29 In Auliye , the court of appeals analyzed the
as recognized in State v. Auliye.
legislature's amendments to AS 04.16.050, a statute prohibiting underage drinking.30 A
now-repealed version of the statute31 required that a convicted youth be placed on
probation; the sentencing court had no discretion in this regard, and the youth "[could]
not refuse probation."32 The court of appeals distinguished the automatic, mandatory
probation created by former AS 04.16.050 from Alaska's usual probation scheme.33
A central question in this case concerns whether section .125(o) abrogated
the usual probationary rules as to sex offenders punished under section .125(i).
Chinuhuk's core argument is that, in enacting AS 12.55.125(o), the legislature left the
standard probation regime unchanged but for two departures:
28 See id. at 613-14 ("[The defendant] violated her probation and the court
imposed all of the time it suspended. . . . Revocation of [her] probation in its entirety
necessarily extinguished all duties [she] had that were conditioned exclusively on her
probationary status.").
29 57 P.3d 711 (Alaska App. 2002).
30 Id. at 713-15.
31 The Auliye court analyzed AS 04.16.050 as amended in 2001. Id. at 715
n.14; see ch. 65, §§ 1, 2, SLA 2001. The probation provisions were repealed in 2016.
See ch. 32, § 9, SLA 2016.
32 Auliye , 57 P.3d at 715-16.
33 Id. at 717.
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[Alaska Statute 12.55.125(o)] modifies sections .080
and .090 in two ways: First, a court no longer has the
discretion to decide whether to impose a suspended sentence;
rather, a court must impose a minimum period of suspended
imprisonment when sentencing a defendant under
AS 12.55.125(i). Second, in imposing a suspended sentence,
a court no longer has the discretion to decide the length of the
probationary period accompanying that sentence; rather, a
court must impose a minimum period of probation
supervision when sentencing a defendant under
AS 12.55.125(i).
Apartfromthesetwo modifications,[AS12.55.125(o)]
did not otherwise alter the statutory framework governing the
imposition of probationary sentences.
Chinuhuk contends that the narrow effect of these changes, combined with a legislative
record that is ambiguous on the point, is insufficient to conclude that the legislature
intended to abrogate the usual probationary regime.
The State argues that the legislature instead created a third form of
probation in AS 12.55.125(o). The State asserts that, unlike the usual scheme but like
the mechanismdescribed in Auliye , section .125(o) mandated a period of probation when
sentencing a defendant under section .125(i). But unlike the probation described in
Auliye , AS 12.55.125(o) also required suspended imprisonment to provide an incentive
to comply with the terms of probation.
The core disagreement between the parties concerns what happens when
the probationer has served the entirety of the suspended term but has not been on
probation for the required amount of time. Chinuhuk argues that the usual rules govern.
He asserts that courts have no authority to continue to impose probation in the absence
of suspended imprisonment. The State maintains that even when a sex offender has
served the suspended term in its entirety, probation "cannot be refused and . . . cannot
be terminated early."
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B. The Trial Court Had No Authority To Reduce The Terms Of
Chinuhuk's Probation.
1. Chinuhuk's probation imposed under section .125(o) was a
mandatory part of his initial sentence.
We begin with a textual analysis and then examine the legislative history
of former AS 12.55.125(o). We conclude from the statute's text that Chinuhuk's initial
sentence consisted of a period of imprisonment as outlined in AS 12.55.125(i) plus
mandatory minimum probation as required by AS 12.55.125(o). A review of the
legislative history corroborates this conclusion.
a. Textual analysis of section .125(o)
The penultimate sentence of former AS 12.55.125(o) is key in this case:
"The period of probation is in addition to any sentence received under (i) of this section
and may not be suspended or reduced." 34
We believe "reduced" refers to the "period of probation." This is the most
natural reading of the sentence. The subject of the sentence is "[t]he period of
probation." The sentence contains two verbs: "is" and "may." The period of probation
35
"is in addition to any sentence received under [AS 12.55.125(i)]." It also "may not
36
be . . . reduced."
The harder question concerns what the word "suspended" references. The
sentence's grammatical structure supports the conclusion that "suspended" also refers
to the "period of probation." But we find this reading hard to reconcile because it does
not comport with common usage. A court typically does not "suspend probation."
34 Ch. 14, § 7, SLA 2006 (repealed 2016).
35 Id.
36 Id.
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Rather, it suspends execution of a sentence. Determining that "suspend" refers to the
execution of a sentence rather than the period of probation is also much more in line with
37
common usage.
But if we conclude "suspended" refers to execution of a sentence, we must
harmonize that with our earlier conclusion that "reduced" refers to the period of
probation. We struggle with how the verbs "suspended" and "reduced" can refer to two
different subjects within the same sentence. We could conclude that the word
"suspended" is superfluous. Perhaps the legislature simply meant that a trial court has
no discretion to reduce the period of probation imposed under section .125(o), and
"suspended" does not modify this interpretation in any meaningful way. But this
conclusion does not comply with our strong preference to give every word in a statute
38
some meaning.
37 The phrase "suspended probation" has never been used in any case in
Alaska. A search of Alaska and related federal cases reveals 22 reported cases where
these words have been used together. In 21 of those cases, the words were separated by
a comma or a period, and "suspended" referred to the execution of the sentence, not
probation. See, e.g. , Garrett v. United States , 471 U.S. 773, 779 n.1 (1985). In the one
remaining case, the Ninth Circuit referred in passing to a non-party in the case as having
been "sentenced to five months of suspended probation." United States v. Capriola , 537
F.2d 319, 320 (9th Cir. 1976). The best reading we can offer is that the court meant the
non-party had the execution of his sentence suspended in exchange for five months of
probation. In contrast, the phrase "suspended sentence" appears 189 times in reported
Alaska cases and 282 times in related federal cases.
38 See Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska
1999) ("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.' " (quoting Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 530-31
(Alaska 1993))).
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----------------------- Page 14-----------------------
To solve this problem we are guided by the provision's placement within
39
the section of the criminal procedure code dealing with sentencing. Alaska
40 Thatthelegislaturechose
Statute12.55.125generally concerns sentencing for felonies.
to place former AS 12.55.125(o) within this section leads us to conclude that the
legislatureconsidered imprisonment and probation togethertoconstituteasex offender's
initial sentence.41 That is, a sex offender receives a "sentence" comprised of an
incarceration period conforming to the guidelines contained in section .125(i)
accompanied by the probation described in section .125(o).
Interpreting section .125(o) in this way also resolves our concern over the
word "suspended" in this provision. The period of probation is a mandatory part of the
sex offender's initial sentence. In other words, that part of the initial sentence "may not
42 The directive that this part of the sentence "may not be
be suspended or reduced."
suspended or reduced" is necessary because without it a court could conclude it could
alter the terms of the mandatory probation prescribed by section .125(o) during initial
sentencing, much as a court has discretion under the usual rules to set the terms of
probation under AS 12.55.080.
39 See City of Kotzebue v. State, Dep't of Corr. , 166 P.3d 37, 42 n.16 (Alaska
2007) (observing that statutory interpretation requires examination not only of the
"particular language at issue but also . . . the 'language and design of the statute as a
whole' " (quoting Fed. Deposit Ins. Corp. v. Laidlaw Transit, Inc. , 21 P.3d 344, 351
(Alaska 2001))).
40 It is titled: "Sentences for imprisonment for felonies." AS 12.55.125.
41 Had the legislature intended the probation imposed under section .125(o)
to be more like normal probation, it could have, for example, included this provision with
the statutes that concern probation instead of with those that deal with sentencing. See,
e.g., AS 12.55.080-.100.
42 Ch. 14, § 7, SLA 2006 (repealed 2016).
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b. Legislative history analysis of section .125(o)
Our review of the legislative history supports this conclusion. Senator
Gretchen Guess testified during the Senate Judiciary Committee hearing on Senate Bill
(S.B.) 218 about the importance of subjecting sex offenders on probation to mandatory
polygraph tests:
[Alaska Statute 12.55.125(o)] is, I think, a very important
part of this bill. Because what it does is ensure that anyone,
when they do get off, is on automatic probation and therefore
can be polygraphed. And it's one of the ways that we can
actually protect the public and keep sex offenders who've
gotten out of jail, if they get off, we don't need to go back to
trial - they're on probation for a certain amount of time. [43]
In later testimony before the House Judiciary Committee, Senator Con Bunde described
how mandatory probation and the polygraph requirement also provide an important
deterrent for repeat offenders:
[T]his allows for mandatory probation as part of a regular
sentencing. . . . Rather than take an early out and be under
parole or probation, rather than be under any supervision,
[some sex offenders will instead choose to] do their full
sentence in an attempt then to not be under supervision. And
again, this leads to the recidivism problem that we're
concerned about. . . . This is mandatory probation, cannot be
suspended or reduced, and the defendant is subject to all the
rules of probation under this requirement -which, when this
bill passes, would include the polygraph test.[44]
The then-current phenomenon of sex offenders choosing to serve their entire prison term
43 TestimonyofSen.Gretchen Guess at 9:58:45-9:59:15,Hearingon S.B.218
Before the S. Judiciary Comm., 24th Leg., 2d Sess. (Jan. 19, 2006).
44 Testimony of Sen. Con Bunde at 2:39:47-2:40:47, Hearing on H.B. 353
Before the H. Judiciary Comm., 24th Leg., 2d Sess. (Feb. 15, 2006).
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----------------------- Page 16-----------------------
45
without probation "[led] to the recidivismproblem" that the legislature was addressing.
The legislature's cure was a special kind of probation: it had to be imposed, and it could
46
not be suspended or reduced.
Chinuhuk concedes this testimony could support our interpretation. But he
notes that the testimony concerns a version of the bill that lacked mandatory suspended
sentences. He suggests that subsequent amendments to S.B. 218 in March 2006 change
this analysis. The legislature amended the bill after Senator Bunde's testimony to couple
47 Chinuhuk offers this as proof that the
suspended imprisonment with probation.
legislature did not intend to depart from the usual scheme provided for in AS 12.55.080.
The State counters that the legislature inserted suspended imprisonment into later
versions of S.B. 218 "to make the probation more effective as a practical matter," not to
make it identical to probation imposed under section .080. Deputy Attorney General
Susan Parks testified before the House Finance Committee and provided the best
explanation we have found regarding the purpose of these changes:
The original bill mandated that there be probation for sex
offenses. Well, probation only has teeth if there's suspended
45 See id.
46 See ch. 14, § 7, SLA 2006 (repealed 2016). The dissent characterizes the
probation imposed under AS 12.55.125(o) as "meaningless" under the theory that
without suspended imprisonment to serve as an incentive to comply with probation, the
probation would have no purpose. But the dissent ignores the crucial fact that the
legislature intended probation, and the new polygraph test requirement, to be mandatory
for sex offenders. If sex offenders could treat their probation as optional, they could also
circumvent the polygraph test requirement. Such an outcome would run counter to
legislative intent.
47 Compare Committee Substitute for Senate Bill 218 (FIN), § 7, 24th Leg.,
2d Sess. (Feb. 9, 2016), with House Committee Substitute for Committee Substitute for
Senate Bill 218 (FIN), § 7, 24th Leg., 2d Sess. (Apr. 5, 2006).
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----------------------- Page 17-----------------------
time required so that if someone violates probation there's an
ability to punish them. And so, section eight now mandates
that there be suspended time so that every sex offender,
unless they're getting the mandatory 99 years, this would
require a certain amount of suspended time so that that
mandatory probation actually has some teeth in it. [48]
Clearly the legislature contemplated imposition of portions of suspended imprisonment
for probation violations. We decline to take this as far as Chinuhuk does, however, and
equate this with an intent to fully embrace probation under section .080. Park's
testimony suggests a continued emphasis on the importance of the mandatory probation.
And it supports the State's argument that the legislature coupled suspended
imprisonment with mandatory probation "to make the probation more effective as a
practical matter."
2. The trial court had no discretion to reduce Chinuhuk's
probation at a subsequent hearing.
We have concluded from the statute's text and legislative history that the
legislature intended a sex offender's initial sentence to have two components: a period
of imprisonment and a period of mandatory probation after the sex offender leaves
prison. The legislature required some suspended time to act as an incentive for sex
offenders to comply with the terms of probation, and it contemplated that courts would
impose some portion or all of the suspended time for probation violations. We next
answer whether a court may modify the term of probation after initial sentencing when
it imposes some portion of the suspended imprisonment.
We conclude that a trial court has no discretion to reduce a sex offender's
probation term below statutory minimums. The statute requires minimum terms of
48 Testimony of Susan Parks, Deputy Att'y Gen. at 1:50:52-1:51:24, Hearing
on S.B. 218 Before H. Fin. Comm., 24th Leg., 2d Sess. (Mar. 7, 2006).
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----------------------- Page 18-----------------------
probation and states unequivocally that the sentence prescribed by AS 12.55.125 "may
49
not be suspended or reduced."
Because the trial court sentenced Chinuhuk to the
statutory minimum period of probation defined in AS 12.55.125(o), it had no discretion
to reduce his probation at a subsequent hearing.
We also believe that any other interpretation of the statute would run
counter to legislative intent. During initial sentencing the trial court must prescribe at
least the minimum period of probation outlined in section .125(o). But under
Chinuhuk's suggested interpretation, trial court discretion at subsequent hearings would
be governed by sections .090 and .110; section .125(o) would no longer control. Thus,
Chinuhuk argues, the trial court regains its discretion to set aside all of a sex offender's
probation after he leaves prison.
But such a conclusion would lead to an absurd result. To understand why,
we may consider the case of the sex offender who violates probation the day after leaving
prison. Chinuhuk does not explain why the legislature would cabin court discretion at
initial sentencing only to allow such discretion immediately after the sex offender leaves
prison. Chinuhuk's suggested interpretation would allow sex offenders to effectively
forgo the mandatory probation and polygraph requirement that the legislature intended.
Immediately after leaving prison the sex offender could violate the terms of probation
and ask the court to exercise its newfound discretion to set aside his probation. Probation
50 could be
that the legislature mandated last for minimum periods of 5, 10, or 15 years
reduced to months, weeks, or even a day. We decline to adopt an interpretation that
49 Ch. 14, § 7, SLA 2006 (repealed 2016).
50 Id.
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would leave such a glaring loophole in the law because we do not believe the legislature
so intended. 51
C. Section .125(o)'s Repeal Did Not Restore Chinuhuk's Right To Refuse
Probation.
Finally, we consider the extent to which therepealofsection.125(o) affects
theoutcomein Chinuhuk's case. Weconclude that Alaska's saving statuteAS01.10.100
denies the retroactive application of section .125(o)'s repeal. We also do not give weight
to Chinuhuk's argument that even if section .125(o)'s repeal was not retroactive as to
him, he should have received the benefit of its repeal at subsequent probation revocation
hearings.
1. S.B. 91's repeal of AS 12.55.125(o) was not retroactive.
The parties offer several ways to analyze the effect of S.B. 91's repeal of
52
section .125(o). The State argues - and the court of appeals held - that Alaska's
general saving statute bars section .125(o)'s repeal from having retroactive effect. The
saving statute prevents elimination of penalties or rights under repealed statutes when
53
those penalties attached or rights vested previously. Because Chinuhuk was placed on
probation as part of the "penalty" he incurred under section .125(o), the State argues the
54
later repeal of that statute did not "extinguish [the] penalty."
51 See Brooks Range Expl. Co. v. Gordon, 46 P.3d 942, 945-46 (Alaska 2002)
("[W]here the literal interpretation of a statute would lead to absurd results, courts can
interpret the words of the statute to agree with the intention of the legislature." (citing
Sherman v. Holiday Constr. Co., 435 P.2d 16, 18-19 (Alaska 1967))).
52 Chinuhuk v. State, 413 P.3d 1215, 1217-18 (Alaska App. 2018).
53 AS 01.10.100(a).
54 See id.
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Several factors support the State's argument. The court of appeals has held
55
that criminal "penalties are imposed at the time of sentencing";
this, combined with the
fact that Chinuhuk was placed on probation pursuant to section .125(o) as part of initial
sentencing, erases any doubt that his term of probation was a "penalty" that the saving
statute prevents from being "extinguished" by section .125(o)'s repeal. The U.S.
Supreme Court's decision in Marrero provides analogous support: just as the defendant
in that case was denied the benefits of post-sentencing revisions to the federal parole
regime because that would have violated the relevant saving statute as to his penalty, so
too is Chinuhuk unable to benefit from the repeal of section .125(o) after he was
sentenced.56
Chinuhuk contends that Alaska's saving statute is narrower than it appears
and was adopted solely to deal with the issue of abatement. As Chinuhuk explains,
saving statutes were designed to address the interplay between the common law doctrine
of abatement and the constitutional bar to ex post facto legislation. Under the doctrine
of abatement a legislature that amends a statute repeals the older version, and pending
or potential prosecutions under the former law must be extinguished.57 Because a new
prosecution cannot begin under the new statute based on pre-enactment conduct due to
55 Helton v. State, 778 P.2d 1156, 1169 (Alaska App. 1989).
56 See Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660-64
(1974).
57 See United States v. Tynen, 78 U.S. 88, 93 (1870) ("When repugnant
provisions . . . exist between two acts, the latter act is held, according to all the
authorities to operate as a repeal of the first act, for the latter act expresses the will of the
government as to the manner in which the offences shall be subsequently treated."); id.
at 95 ("By the repeal of . . . the act . . . all criminal proceedings taken under it fell.").
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58
the bar on ex post facto legislation, some offenders can escape justice. Chinuhuk
contends that saving statutes such as Alaska's are designed solely to address this
technical issue. He claims that because laws that ameliorate penalties do not implicate
59 the saving statute does not prohibit their retroactive application.
ex post facto concerns,
We disagree that the Alaska saving statute is limited to situations where the
repeal of a statute would have abated a prosecution at common law. The language of
AS 01.10.100 is clear. It states that a law's repeal or amendment "does not release or
extinguish any penalty . . . incurred . . . under that law."60 After repeal or amendment
"[t]he law shall be treated as remaining in force for the purpose of sustaining any proper
action or prosecution for the enforcement of the . . . penalty."61 Nothing in this language
implies that the saving statute only applies to situations where prosecutions would
otherwise be barred by operation of common law abatement and the prohibition against
58 See Doe v. State , 189 P.3d 999, 1003 (Alaska 2008) ("An ex post facto law
is a law 'passed after the occurrence of a fact or commission of an act, which
retrospectively changes the legal consequences or relations of such fact or deed.' These
constitutional prohibitions bar the legislature from enacting any law that 'punishes as a
crime an act previously committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission; or which deprives one
charged with a crime of any defense available according to law at the time when the act
was committed.' " (footnote omitted) (first quoting In re Estate of Blodgett , 147 P.3d
702, 711 (Alaska 2006); then quoting State v. Anthony , 816 P.2d 1377, 1378 (Alaska
1991))).
59 Cf. Collins v. Youngblood, 497 U.S. 37, 42 (1990) (holding that the ex post
facto clause bars legislation that makes punishment more burdensome after its
commission); Doe, 189 P.3d at 1003 (holding the same).
60 AS 01.10.100(a).
61 Id.
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ex post facto legislation. Indeed, our holding here is consistent with how courts in other
jurisdictions have interpreted similarly worded saving statutes. 62
2. Chinuhuk's argument that he is "sentenced" anew each time he
is returned to probation is unpersuasive.
Chinuhuk offers an alternative theory for relief. He asserts that "when he
appears before the court on a petition to revoke his probation, that is a new sentencing
proceeding, at which he may take advantage of ameliorative sentencing provisions
63
currently in effect." Chinuhuk cites our decision in Gilligan v. State for the proposition
that the punitive effects of a probation revocation proceeding constitute a "sentencing."
In that case, we determined that we had jurisdiction to hear an offender's appeal after he
64
violated the conditions of probation and his suspended sentence was reimposed. In so
holding, we stated that the imposition of a suspended sentence "was a 'sentence of
imprisonment lawfully imposed' within the meaning of the statutes providing for
65
sentence review."
In State v. Stafford the court of appeals declared that Alaska's case law
trends toward "applying ameliorative sentencing provisions to defendants not yet
62 See, e.g., United States v. Bradley, 455 F.2d 1181, 1191 (1st Cir. 1972),
aff'd sub nom. Bradley v. United States, 410 U.S. 605 (1973) ("We do not agree that [the
federal saving statute] is limited to those statutes the repeal of which, at common law,
would have abated a cause of action or prosecution."); United States v. Kirby, 176 F.2d
101, 104 (2d Cir. 1949) (relying on plain language of federal saving statute without
considering doctrine of abatement to conclude that repealed sentencing statute remained
in effect).
63 560 P.2d 17 (Alaska 1977).
64 Id. at 18.
65 Id. at 19 (quoting AS 12.55.120(a) and AS 22.05.010(b)).
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sentenced."66 Therefore, if we adopt the premise that Chinuhuk was "sentenced" each
time his probation was revoked, then Stafford could direct the superior court to treat
section .125(o) as repealed when adjudicating Chinuhuk's suspended imprisonment and
probation at subsequent proceedings. The effect would be to return Chinuhuk to the
ambit of the default probation regime and allow him to reject his remaining probation.
We find Chinuhuk's reliance on Gilligan unpersuasive. In Gilligan we
were concerned with the procedural aspects of appellate jurisdiction and judicial
67 This case deals with the substantive aspects of the saving statute. We
review.
considered in Gilligan the scope of former Alaska Appellate Rule 21(b), which required
appeals to be filed within "30 days after [the] sentence was imposed."68 Gilligan's appeal
of his probation revocation was filed more than 30 days after his initial sentence.69 The
State argued the "sentence" referred to in Rule 21(b) was the offender's initial sentence
and that we therefore did not have jurisdiction to hear his appeal under Rule 21(b).70
Had we ruled in favor of the State we would have likely eliminated judicial review of
almost all judgments reinstating imprisonment at probation revocation hearings. We
66 129 P.3d 927, 930 (Alaska App. 2006).
67 See generally 560 P.2d 17.
68 The Appellate Rules have since been restyled. At the time, Rule 21(b)
provided: "(b) Notice of Appeal. Written notice of appeal from a sentence . . . shall be
filed with the clerk of the superior court which imposed the sentence not later than 30
days after sentence was imposed." Id. at 18 n.1.
69 Id. at 18.
70 Id.
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therefore construed the meaning of "sentence" in the context of Rule 21(b) more broadly
to include re-sentencing at a probation revocation hearing. 71
As a preliminary matter, we note the Appellate Rules have been
significantly restyled since Gilligan, and the rules now couch appellate review in terms
of final "judgment," not based on when a "sentence" is imposed.72 The issue of what
constitutes a "sentence" therefore would not arise today under the facts of Gilligan.
Moreover, we expressly limited our interpretation of "sentence"in thatcase to be "within
the meaning of the statutes providing for sentence review."73 We see no need therefore
to extend our interpretation of the word "sentence" in the context of a now-rewritten
appellate rule governing jurisdiction to situations not before us in Gilligan.
We may also distinguish this case from the facts in Stafford. In Stafford the
court of appeals considered whether the "penalty" saved by AS 01.10.100 accrued as of
a defendant's commission of the offense or as of sentencing.74 After conducting an
exhaustive review of our prior decisions, the court of appeals concluded the key date was
75 In the consolidated cases before the court in Stafford, however,
the date of sentencing.
none of the defendants had been sentenced at all when the new statute was passed.76 In
deciding that ameliorative sentencing provisions should apply to the defendants in that
71 Id. at 19.
72 See Alaska R. App. P. 202 (stating that appeals may be taken from final
judgments), 204(a)(1) (requiring notice of appeal to "be filed within 30 days from the
date shown in the clerk's certificate of distribution on the judgment appealed from").
73 Gilligan, 560 P.2d at 19.
74 129 P.3d 927, 928-33 (Alaska App. 2006).
75 Id. at 929-33.
76 Id. at 928.
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----------------------- Page 25-----------------------
case, the Stafford court did not consider whether the rule should extend to sentence
77
modifications at probation revocation hearings.
Weconcludethatthe Stafford ruledoes
not apply to those situations. To do otherwise would run counter to the purpose of
Alaska's saving statute.
V. CONCLUSION
We AFFIRM the court of appeals on all grounds. Chinuhuk, Malutin, and
Wasili remain subject to mandatory probation imposed under former AS 12.55.125(o)
to the extent they have remaining probation to serve.
77
See id. at 927-34.
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CARNEY, Justice, dissenting.
I respectfully disagree with the court's decision that the legislature created
1 and continues even after the imposition of all
a type of probation that is "meaningless"
2 Instead I believe that the
of the suspended time upon which its meaning depended.
legislature identified a problem: dangerous sexual offenders were being released from
prison too soon and without the benefit of treatment designed to reduce the chance that
they would commit new offenses. I believe further that the legislature crafted a solution
to that problem: it increased the mandatory sentences for sexual felony offenses and
required, as a part of the increased sentences, mandatory periods of probation.
In lengthy and at times confusing committee meetings,3 the legislature
considered and amended legislation that ultimately included the sentence on which so
4
much attention now focuses: the "penultimate sentence of former AS 12.55.125(o)."
1 See Kelly v. State , 842 P.2d 612, 613 (Alaska App. 1992) ("When a court
sentences a defendant to serve a probationary period, the court must suspend a portion
of the sentence or else the probationary term is meaningless."); see also Planned
Parenthood of Alaska v. Campbell, 232 P.3d 725, 735 (Alaska 2010) (Winfree, J.,
concurring in part and dissenting in part) ("Any purported regulation of conduct must
include consequences, otherwise it is meaningless . . . .").
2 Opinion at 9-10.
3 For example,alegislatorrequestedthataDepartment ofCorrections official
clarify the practice of "flat-lining" sentences to avoid a parole requirement to submit to
polygraph examinations. See Testimony of Sen. Con Bunde at 9:38:18-9:38:37, Hearing
on S.B. 218 Before the S. Fin. Comm., 24th Leg., 2d Sess. (Feb. 2, 2006). In response
the official clarified both what "flat-timing" was and discussed "mandatory parole" - a
component of felony sentences entirely distinct from probation. See Testimony of Portia
Parker, Deputy Commissioner, Dep't of Corr. at 9:38:39-9:39:59, Hearing on S.B. 218
Before the S. Fin. Comm., 24th Leg., 2d Sess. (Feb. 2, 2006).
4 Opinion at 12.
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5
I share the court's impression that this sentence could have been more artfully worded.
But I cannot join in its pages of "reconcil[ing]" the sentence's meaning in a way that
6 of English to create a type of probation that
"does not comport with common usage"
7
Alaska's courts, including this one, have recognized as "meaningless" for decades.
Instead, I believe that we should understand the legislature's intent in a way that is
consistent with its overall solution to the problem it was addressing and consistent with
the "common usage" of language and, in particular, the specialized language of Alaska's
criminal justice system.
As the court notes, the legislature aimed to address "the recidivism
problem" caused by sex offenders choosing to serve prison time without probation
following their release.8 The legislature used a two-pronged approach: first it increased
9 Then, following a senator's suggestion
the mandatory sentences for each sexual felony.
that mandatory probation be included in the newly increased sentences,10 it amended the
proposed legislation to require just that, but neglected to require that the sentences
5 Opinion at 12-14.
6 Opinion at 12.
7 See Kelly v. State, 842 P.2d 612, 613 (Alaska App. 1992).
8 Opinion at 15-16 (quoting Testimony of Sen. Con Bunde at 2:39:47-
2:40:47, Hearing on H.B. 353 Before the H. Judiciary Comm., 24th Leg., 2d Sess. (Feb.
15, 2006)).
9 Committee Substitute for Senate Bill (C.S.S.B.) 218, § 4, 24th Leg., 2d
Sess. (2006).
10 Testimony of Sen. Con Bunde at 2:39:47-2:40:47, Hearing on H.B. 353
Before the H. Judiciary Comm., 24th Leg., 2d Sess. (Feb. 15, 2006).
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----------------------- Page 28-----------------------
11
include suspended time. The legislature added an additional requirement of suspended
time after testimony from the deputy attorney general in charge of criminal matters
explained that "probation only has teeth if there's suspended time so that if someone
12 The legislation was amended to
violates probation there's an ability to punish them."
"now mandate[] that there be . . . a certain amount of suspended time so that . . .
mandatory probation actually has some teeth in it."13
The legislative changes to sentences for sexual felonies were dramatic.
Where previously an offender convicted of sexual assault in the first degree was subject
to a presumptive sentencing range of 8 to 12 years,14 with probation and suspended time
left to the discretion of the sentencing court, following the amendments the same
offender faced a minimum range of 20 to 30 years15 and, due to the newly added
AS 12.55.125(o), a mandatory probationary period of 15 years, with 5 years suspended
during that time.16 By spelling out these requirements, section .125(o) prohibited
sentencing courts from sentencing an offender to even a lengthy prison term without
11 C.S.S.B. 218, § 7, 24th Leg., 2d Sess. (2006).
12 Testimony of Susan Parks, Deputy Att'y Gen. at 1:50:52-1:51:07, Hearing
on S.B. 218 Before H. Fin. Comm., 24th Leg., 2d Sess. (Mar. 7, 2006); House
Committee Substitute for Committee Substitute for Senate Bill 218, § 7, 24th Leg., 2d
Sess. (2006).
13 Id. at 1:51:09-1:51:24.
14 Ch. 2, § 12, SLA 2005.
15 Ch. 14, § 4, SLA 2006.
16 Ch. 14, § 7, SLA 2006 (repealed 2016).
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17
probation; suspending a portion of the mandatory minimum sentence in order to place
the offender on probation;18
or reducing the mandatory probationary period even after
19
service of a lengthy prison term.
Section .125(o) makes clear the legislature's requirement that any sentence
imposed under the new sentencing scheme was required to include a mandatory
minimum period of probation, along with a mandatory minimum number of years of
suspended imprisonment for that probationary period. Section .125(o) was necessary to
ensure that sentencing courts did not exercise their discretion in a manner that
perpetuated the problem the legislature sought to remedy. The amended statutes thus
addressed both of the legislature's concerns: sex offenders received notably longer
prison sentences and after completing them were required to abide by probation
conditions, including sex offender treatment, for a lengthy probationary period. If
offenders did not comply with the conditions of their probation, they would be returned
to prison to serve the additional years that had been suspended.
Thelegislature'samendment oflaws governing sentencing in felony sexual
offenses thus significantly increased the punishment for such offenders and required
probation, including treatment, as part of their sentences. But the amendments did not
create an unprecedented new version of probation. Nor did the amendments attempt to
17 For example, a court could no longer sentence an offender to 40
years - well above the minimum sentencing range - but decline to suspend at least 5
years of the time in order to place the offender on probation.
18 A court could no longer, for example, sentence a defendant to the minimum
20 years and suspend 5 of those 20 years; instead the court was required to impose at
least 25 years before suspending the mandatory minimum 5.
19 Nor could a court take into account an offender's projected advanced age
upon release from service of a lengthy sentence by concluding that a lengthy
probationary period would not be necessary and reducing the mandated period.
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----------------------- Page 30-----------------------
craft any kind of new enforcement mechanism to keep such an unprecedented creation
from being "meaningless."
The court recognizes that probation requires suspended time in order to
20 Probation
serve as the double-edged incentive and deterrent it was intended to be.
provides an incentive to an offender -compliance with probation conditions means that
the offender will never have to serve the additional years in prison that were suspended.
And it is intended to deter violations of probation by suspending the spectre of additional
prison time as a consequence of violation.
Each of the appellants felt probation's intended deterrent effect; each of
them ultimately served every day of the suspended portion of their prison sentence after
violating probation. And each of them - along with their supervising Department of
Correctionsprobation officers -asked thatthey bereleased fromprobation after serving
all of the time to which they had been originally sentenced.
The court acknowledges that each of them served their entire sentence.21
But instead of adhering to long-established precedent barring courts from adding
additional probation to an offender's sentence22 it nonetheless decides that appellants
remain subject to a special kind of probation and turns for support to the unique (and
20 Opinion at 9-10.
21 Opinion at 4-5.
22 See, e.g., Franzen v. State, 573 P.2d 55, 57 (Alaska 1978) (recognizing "no
authority under Alaska law which permits the court to impose a fixed sentence, require
the defendant to serve that sentence, and then place the defendant on an additional period
of probation").
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----------------------- Page 31-----------------------
now only historical) probation once imposed on youthful offenders convicted of
23
underage alcohol offenses.
In State v. Auliye the court of appeals granted the State's petition for review
of a superior court's decision that a youth charged with possession or consumption of
alcohol was entitled to a jury trial.24 The court held that because probation until the
youth's 21st birthday was "automatic," sentencing judges were "empowered to impose
penalties on these youths that are sufficiently severe to trigger the rights to jury trial and
court-appointed counsel."25 In dicta before moving to its analysis of youths' entitlement
to these rights, the court remarked that it was "at least arguable that" a court could forbid
even first offenders from operating a motor vehicle until they turned 21.26 It is upon this
comment by the court of appeals that the court today rests its approval of "meaningless"
probation.27
Even assuming that a comment in a court of appeals opinion apparently
approving a now-discontinued form of probation for minors convicted of possession or
consumption of alcohol supports the idea that probation need not include suspended
time, it is not clear to me that the legislature intended to create such a type of probation
for sexual offenders. For one, by virtue of her youth, and the statute's command that she
"may not refuse probation,"28 Auliye "at least arguably" faced a consequence for
23 Opinion at 10-11.
24 57 P.3d 711, 712 (Alaska App. 2002).
25
Id. at 717.
26 Id.
27 See Opinion at 9-11.
28 57 P.3d at 715 (quoting former AS 04.16.050(e) (2001)).
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29
violating probation, even if her sentence was not imposed. But appellants do not face
an additional consequence if they violate probation; they have served the entirety of the
time imposed upon them in sentencing. No purpose is served by continuing their
"meaningless" probation.
A second difference between Auliye and appellants' position is that the
legislature appeared to have purposefully crafted the unique probationary scheme
imposed on the juvenile offender. The court of appeals detailed the evolving legislation
30 The legislative
that resulted in the unique "modified strategy" of automatic probation.
history of AS 12.55.125(o) lacks any such intentional progress toward a probationary
scheme for sexual offenders resulting in "meaningless" probation. Instead, the
ambiguous statutory languageand legislativehistory reflectlegislativeconfusion leading
to an inartfully drafted statute.
What the legislative history does reveal is the legislature's intent to craft a
probationary scheme to address the problem of untreated sex offenders being released
after serving relatively short sentences. The increased length of appellants' sentences
and the requirement of sex offender treatment as a probation condition demonstrate that
solution. Having served their entire sentences -the originally imposed prison time plus
the previously suspended time - appellants faced neither an incentive nor a deterrent
during any continued probation. Recognizing that continued probation was therefore
"meaningless," they and their probation officers requested that they be released from
probation. Their requests should have been granted.
29 See id.
30 See id. at 713-16.
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I therefore dissent from the court's decision. 31
31 Because I would reverse the court of appeals decision, I do not reach the
other arguments on appeal.
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