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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DANIEL J. ORNELAS, | ) |
| ) Court of Appeals No. A-9027 | |
| Appellant, | ) Trial Court No. 3AN-03-1128 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2033 - February 24, 2006] |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Sidney K. Billingslea, Law
Office of Sidney K. Billingslea, Anchorage,
for the Appellant. Nancy R. Simel,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Daniel J. Ornelas made false statements to obtain
unemployment insurance benefits to which he was not entitled, in
the amount of $12,152. The Alaska Employment Security Act, set
out in Title 23, Section 20 of the Alaska Statutes, regulates the
payment of unemployment compensation. The State charged Ornelas
under this Act with 23 counts of knowingly making a false
statement with the intent to obtain unemployment insurance
benefits, a class B misdemeanor.1 Additionally, the State
charged Ornelas under Title 11, the Alaska Criminal Code, for the
felony offense of theft in the second degree.2 Ornelas argues
that the legislature intended for the remedies set forth in the
Alaska Employment Security Act to be the exclusive remedies for
unlawfully obtaining unemployment benefits. He argues that the
State could not also charge him with theft in the second degree
under the criminal code. Superior Court Judge Michael L.
Wolverton rejected Ornelass argument.
The Alaska Employment Security Act only criminalizes
knowingly making false statements to obtain unemployment
benefits. It does not criminalize the actual receipt of those
benefits. We therefore conclude that the legislature did not
intend to preclude the State from prosecuting as theft the
fraudulent obtaining of those benefits.
Factual and procedural background
Ornelas filed for unemployment benefits on May 20,
1998, and on October 28, 1999. Ornelas falsely reported that he
had not worked and had not received earnings. As a result,
Ornelas wrongfully received 23 unemployment benefit payments from
the Alaska Department of Labor. The payments totaled $12,152.
Following an investigation, Ornelas admitted to a
Department of Labor investigator that he had received $12,152 in
benefits to which he was not entitled. He repaid that amount.
The State first charged Ornelas under Title 11, the
Alaska Criminal Code. He was charged with 23 counts of unsworn
falsification, a class A misdemeanor.3 The State also charged
Ornelas with theft in the second degree,4 a felony offense that
criminalizes the theft of property or services of more than $500
but less than $25,000. The theft statutes authorize the State to
aggregate the amounts that the thief obtains under one course of
conduct.5 Therefore, the State consolidated the amount of all of
the benefits that Ornelas obtained unlawfully into a single count
of theft.
Ornelas moved to dismiss these charges. Ornelas argued
that the Alaska Employment Security Act provided the exclusive
remedies for unlawfully obtaining unemployment benefits. He noted
the Alaska Employment Security Act made him ineligible for future
benefits and required repayment of the amount of benefits that
he had unlawfully obtained, including possible penalties. He
also pointed out that, under the Act, he could be criminally
charged with a class B misdemeanor for making false statements to
obtain benefits.6 Ornelas argued that, because the Act provided
exclusive remedies, the State could not charge him under Title
11.
Judge Wolverton agreed with Ornelas that the State
could not charge him under the Alaska Criminal Code with the
class A misdemeanor of unsworn falsification. Judge Wolverton
pointed out that the Alaska Employment Security Act contained a
specific charge that criminalized making false statements to
secure unemployment insurance benefits. He concluded that the
legislature must have intended for this to be the exclusive
remedy for making false statements to obtain employment benefits.
But Judge Wolverton found that the State could charge Ornelas
with felony theft under the Alaska Criminal Code for unlawfully
obtaining unemployment benefits.
Following this ruling, the State dismissed the unsworn
falsification charges. Instead, the State charged Ornelas under
the Employment Security Act with 23 counts of making false
statements in order to obtain unemployment benefits pursuant to
AS 23.20.485.
Following a trial on stipulated facts, Judge Wolverton
convicted Ornelas on all counts. Ornelas now appeals his
conviction for theft in the second degree.
Analysis
Ornelas claims that Chapter 23, Title 20, the Alaska
Employment Security Act, contains the exclusive remedies for
violations of the Act. But it does not appear to us that the
legislature intended to preclude the State from prosecuting, for
theft, a person who unlawfully obtained unemployment benefits.
The Alaska Employment Securities Act provides civil penalties
that can disqualify a person from receiving future benefits and
requires a person who has unlawfully obtained benefits to repay
the benefits plus a statutory penalty.7 The Act also provides
for criminal penalties for knowingly making false statements to
obtain benefits.8 But it does not have a provision criminalizing
the actual obtaining of those benefits.
Did the legislature intend to not criminalize the
actual obtaining of benefits? This seems unlikely. It seems
more likely that the legislature anticipated that the actual
obtaining of benefits would be prosecuted as theft under the
Criminal Code. The theft statute allows the State to consolidate
the amount that the defendant unlawfully obtained. And the
criminal penalties rise with the magnitude of the theft. It
appears to us that this is the course the legislature chose to
criminalize the actual obtaining of benefits.
Ornelas points to AS 23.20.500, which addresses other
violations of law under the Alaska Employment Security Act. He
argues that the statute provides a remedy for the actual receipt
of benefits that were unlawfully obtained. That statute provides
that if a person willfully violates a provision of the Act for
which a penalty is not prescribed in this chapter or provided by
another applicable statute, they will face a maximum fine of $200
and 60 days in jail. But this statute merely provides a remedy
for violations that are not prescribed by the Act or by another
applicable statute. In this case, another applicable statute is
the statute criminalizing theft.
We conclude that the legislature did not intend for the
Alaska Employment Securities Act to provide the sole remedies
available to prosecute the unlawful obtaining of unemployment
benefits. The legislature intended for the State to be able to
prosecute the unlawful obtaining of unemployment benefits as
theft. Accordingly, we affirm Ornelass conviction for theft in
the second degree.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 23.20.485.
2 AS 11.46.130(a)(1).
3 AS 11.56.210.
4 AS 11.46.130(a)(1).
5 AS 11.46.980(c).
6 AS 23.20.485.
7 AS 23.20.390(a) & (f).
8 AS 23.20.485.
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