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Allen v. Municipality of Anchorage (10/12/2007) ap-2121

Allen v. Municipality of Anchorage (10/12/2007) ap-2121

                             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
     Courts.

             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

KRYSTAL R. ALLEN, )
) Court of Appeals No. A-9580
Appellant, ) Trial Court No. 3AN-04-10589CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 2121 - October 12, 2007]
)
Appeal    from     the
          District   Court,  Third  Judicial  District,
          Anchorage, John R. Lohff, Judge.

          Appearances: Michael B. Logue, Gorton,  Logue
          &   Graper,  Anchorage,  for  the  Appellant.
          Christina     Otto,    Assistant    Municipal
          Prosecutor,   and   Frederick   H.    Boness,
          Municipal   Attorney,  Anchorage,   for   the
          Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.
          MANNHEIMER, Judge, dissenting.

          Krystal  R. Allen pleaded no contest to two  counts  of
cruelty to animals.  She was sentenced to a 30-day term to  serve
and  was placed on probation for 10 years.  One of the conditions
of  Allens  probation prohibits her from possessing  any  animals
other  than  her sons dog.  Allen argues that the district  court
abused  its  discretion by imposing this condition  of  probation
because it will frustrate her rehabilitation.
          The  Municipality argues that, by statute,  this  Court
has   no  jurisdiction  to  hear this appeal  because  Allen  was
sentenced to fewer than 120 days to serve.  We conclude  that  we
do  have  jurisdiction to decide Allens claim.  We also  conclude
that  the  district  court  did  not  abuse  its  discretion   by
restricting Allens possession of animals during the term  of  her
probation.  We therefore affirm Allens sentence.

          Facts and proceedings
          On October 6, 2004, the Anchorage Police Department and
the  Anchorage  Animal  Care  and  Control  Center  responded  to
complaints of a foul odor coming from Allens home.
          At  Allens sentencing hearing, Lucius Burns,  the  lead
enforcement officer for Animal Control, testified that  the  home
smelled  of cat urine to the point where it literally burnt  your
throat.   There were approximately forty cats in the kitchen, and
the floor was covered with debris and animal fecal matter.  There
were  more  cats in kennels downstairs  a total of  approximately
180  to  200  cats  in  the home.  There were  also  three  dogs,
thirteen  birds,  and  three  chickens.    Burns  stated  it  was
probably  the foulest environment Ive been in dealing with  cats.
The  majority of the cats were emaciated, had ulcerated  injuries
on  their  eyes and upper respiratory infections,  and  were  not
socialized to people.
          Anchorage  Police Officer Jackie Valdez testified  that
the  home was filthy and unsafe for people or animals.  There was
rotten  meat dripping out of a refrigerator. Cats were locked  in
bedrooms  and  kennels, and some were even  inside  the  ceiling.
There was no clean drinking water and little food.
          Dr.  Myra Wilson, a veterinarian and manager of  Animal
Control,  testified that, while the three dogs appeared well-fed,
the  birds  did  not  have food or water and their  perches  were
smeared  with  feces.  When they were given food and  water,  the
birds  ate  and drank continuously for more than twenty  minutes.
Many  of the birds did not have sufficient muscle mass, and  most
had  an  avian herpes virus.  Wilson testified that this was  the
most serious case she had encountered in her five years at Animal
Control in terms of the number of animals involved.
          Allen  was charged with one count of cruelty to animals
for  abusing  an  animal, two counts of cruelty  to  animals  for
maintaining  an animal in an inhumane manner, and  one  count  of
tampering  with official proceedings.1  Allen pleaded no  contest
to  the  two counts of cruelty to animals for maintaining animals
in  an inhumane manner,  and the Municipality dismissed the other
two counts.
          During  sentencing, Allen emphasized the  progress  she
had   made  toward  rehabilitation.   She  did  not  dispute  the
Municipalitys  evidence on the condition of the animals  and  the
home.   Nor did she dispute that she had a history of cruelty  to
animals.  During the trial, Wilson testified that Animal  Control
had  documented similar conditions in Allens home in 1990,  1994,
1997,  and  1999.  And in 1990 and 1995, Allen was  convicted  of
cruelty  to  children and charged with, but not  prosecuted  for,
cruelty to animals.
          Judge  Lohff found that the harm that occurred  to  the
animals [was] horrendous ... .   They suffered horribly, many  of
them.    He found the case to be a worst offense.  And, while  he
considered  Allens efforts at rehabilitation, he also  considered
Allens history of cruelty to animals.
          Judge Lohff imposed 360 days with 330 days suspended on
the  first  count  of  animal cruelty, 360  days  with  360  days
suspended  on the second count, and a 10-year term of  probation.
He  prohibited Allen from having any animal in her care, custody,
control,  or ownership during her term of probation,  other  than
her sons dog. In discussing this probation condition, Judge Lohff
noted  the lack of animal control probation supervisors  and  the
practical  difficulties of enforcement if Allen were  allowed  to
have  animals.  Allen appeals the imposition  of  this  probation
condition.

          Discussion
          Why we have jurisdiction over this appeal
          The  Municipality begins by arguing that we do not have
jurisdiction to hear this appeal because Allen was only sentenced
to  30 days of unsuspended incarceration. The Municipality argues
that,  under AS 22.07.020(c), we only have jurisdiction to review
misdemeanor sentences that exceed 120 days to serve.
          We  have previously held that AS 22.07.020(c) does  not
limit our authority to review a claim that a sentence is illegal,
regardless  of the length of that sentence.2  But  Allen  is  not
claiming  that  her  sentence is illegal;  she  claims  that  the
district  court abused its discretion under the Chaney sentencing
criteria  by  imposing a 10-year probation condition that  limits
her  possession of animals.3  Her claim is therefore  a  sentence
appeal for purposes of AS 22.07.020(c)(2)  an appeal in which the
defendants  sole assertion of error is that the sentencing  judge
abused  his or her discretion by imposing too severe a sentence.4
We  thus must decide whether AS 22.07.020(c)(2) prohibits us from
considering  any  sentence appeal by a defendant  whose  term  of
imprisonment  does  not exceed 120 days, or whether  the  statute
only   prohibits  us  from  considering  sentence  appeals   that
challenge that term of imprisonment as excessive.
          The  supreme court has inherent jurisdiction to  review
criminal sentences.5  We, however, are a statutory court and  can
only  consider cases if we have been granted jurisdiction by  the
legislature.6
          Our  jurisdiction to hear misdemeanor sentence  appeals
is established by AS 22.07.020(c), which provides:
          The  court  of  appeals has  jurisdiction  to
          review  ...  (2) the final  decision  of  the
          district court on a sentence imposed by it if
          the  sentence exceeds 120 days of unsuspended
          incarceration
          for a misdemeanor offense.
          This  jurisdiction statute incorporates the  limitation
on  sentence appeals codified in AS 12.55.120(a).7  That  statute
grants   defendants  the  right  to  appeal   [a]   sentence   of
imprisonment exceeding 120 days for a misdemeanor offense ...  on
          the ground that the sentence is excessive.
          In  Richardson  v.  State,8 we  considered  whether  AS
12.55.120(a)  limits sentence appeals to appeals  that  challenge
the  term  of imprisonment as excessive.9  That statute does  not
mention whether a defendant can appeal other terms of a sentence,
such as the amount of a fine, conditions of probation, or license
revocation.10  Accordingly, the State argued in Richardson that we
only   had   jurisdiction  to  consider  sentence  appeals   that
challenged the term of imprisonment.11
          In  considering this argument, we recognized  that  the
legislative history of AS 12.55.120 is silent on sentence appeals
that involve matters other than terms of imprisonment.12  But  we
reasoned that, because defendants often challenge both the length
of  their  prison  term  and  other aspects  of  their  sentence,
unnecessary  administrative  difficulties  would  result  if   we
decided  claims involving terms of imprisonment while the supreme
court had discretion to review all other sentencing claims.13  We
therefore held that, in the absence of any affirmative indication
that  the legislature intended to split jurisdiction in this way,
defendants   who  received  unsuspended  terms  of   imprisonment
exceeding  the statutory level could appeal any aspect  of  their
sentence to this court.14
          We  are now faced with the question of whether we  have
jurisdiction to consider these types of claims (i.e., claims that
do  not involve a challenge to the term of imprisonment) when the
term of imprisonment does not meet the statutory level.
          We  conclude  that we have jurisdiction to review  this
type  of  claim.   We  begin by noting  that  we  have  not  been
consistent on whether we have jurisdiction to consider  excessive
sentence  claims  when  the  term of imprisonment  is  below  the
statutory level.  In one opinion, Haggren v. State,15 and at least
two  memorandum  opinions, we have held  that  we  did  not  have
jurisdiction  to  consider  excessive sentence  claims  involving
fines and forfeitures because the defendants had not received  an
unsuspended  term  of  imprisonment that exceeded  the  statutory
level.16  But in other cases we have








                              
  considered these types of claims.17  For example, in Jordan  v.
State,18 we considered Jordans claim that the forfeiture  of  his
airplane  was  an excessive sentence even though Jordan  had  not
been  sentenced  to any term of unsuspended incarceration.19   In
Kelley  v.  State,20 a memorandum opinion, we considered  Kelleys
claim that his sentence  a $15,000 fine with $7500 suspended  and
forfeiture  of  his $3000 share of the profit from the  illegally
caught  fish  was excessive.21  (Chief Judge Bryner concurred  in
the  result  in  Kelley but argued that the court  did  not  have
jurisdiction to consider the claim.22)  And in Mahan v.  State,23
another   animal  cruelty  case,  we  addressed  the   defendants
challenges  to  her  term of probation,  the  conditions  of  her
probation, and the amount of restitution ordered, even though her
1-year prison term was suspended.24  We believe that this line of
cases  is correct and that we have jurisdiction to consider  non-
term-of-imprisonment sentence appeals (e.g., appeals  challenging
probation    conditions,   fines,   forfeitures,   and    license
revocations)  regardless of the term of imprisonment  imposed  by
the lower court.
          When  we  interpret  a  statute, 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.25   But [s]trict construction
does  not  require  that statutes be given the narrowest  meaning
allowed  by the language; rather, the language should be given  a
reasonable  or  common  sense construction,  consonant  with  the
objectives of the legislature. The intent of the legislature must
govern and the policies and purposes of the statute should not be
defeated.26
          As  noted above, AS 22.07.020(c) states that this court
has jurisdiction over the final decision of the district court on
a  sentence  imposed by it if the sentence exceeds  120  days  of
unsuspended  incarceration  for a  misdemeanor  offense.  And  AS
12.55.120(a)  grants defendants the right to appeal [a]  sentence
of  imprisonment exceeding 120 days for a misdemeanor offense ...
on the ground that the sentence is excessive.  The plain language
of these statutes appears to limit our jurisdiction to challenges
to  terms  of imprisonment that exceed 120 days for a misdemeanor
offense.
          However,  as  in  Richardson, we  have  not  found  any
legislative  discussion of sentence appeals that do  not  concern
terms of imprisonment, either in 1980 when this court was created
or  in  1995  when  the legislature amended AS 12.55.120  and  AS
22.07.020  to  limit  misdemeanor sentence appeals  to  terms  of
imprisonment exceeding 120 days.27  The transmittal  letter  from
the  governor  for the 1995 legislation did not mention  sentence
appeals  involving claims other than challenges to  the  term  of
imprisonment:
          [The  sections amending AS 12.55.120  and  AS
          22.07.020]  restrict defendants convicted  of
          misdemeanors  from appealing as  excessive  a
          sentence of 120 days or less.[28]
The  committee  discussions  were likewise  limited  to  sentence
appeals  involving  terms  of  imprisonment.29   We  presume  the
legislature was aware of the inconsistency of our prior decisions
when  it  debated the 1995 amendments, and we do not  believe  it
would  have been silent on sentence appeals challenging probation
conditions,  fines, forfeitures, and license revocation,   if  it
had intended to eliminate our jurisdiction over those appeals  in
all cases involving sentences of 120 days or less.
          In  the  absence of an affirmative indication from  the
legislature, we do not believe the legislature intended to  allow
a  defendant  with  a  121-day sentence to appeal  a  potentially
          onerous penalty (such as a 20-year revocation of a drivers
license)   to this court but to limit a defendant with a  120-day
sentence to discretionary review by the supreme court on the same
claim.30   And, as we reasoned in Richardson, having  this  court
decide  a  claim  that  a probation condition  is  illegal  while
leaving  to  the supreme court discretionary review over  whether
the  same  probation condition was an abuse of  discretion  would
result in unnecessary administrative difficulties.31
          For this reason, we find that AS 22.07.020(c) grants us
jurisdiction  over  all sentence appeals from  a  district  court
except   for  those  that  challenge  as  excessive  a  term   of
imprisonment of 120 days or less.  Any holding to the contrary is
hereby overruled.32

          Why  we find the court did not abuse its discretion  by
          imposing the
          probation condition
          Allen  argues  that the court abused its discretion  by
forbidding  her from possessing any animals other than  her  sons
dog  during her 10-year term of probation.  We review the  courts
imposition of a probation condition for abuse of discretion.33
          We  have  consistently upheld conditions  of  probation
restricting  the  defendant from engaging in  the  activity  that
formed  the basis for the underlying conviction.34  And, although
we  have  not  directly  resolved  a  challenge  to  a  probation
condition imposing limits on the possession of animals,  we  have
held  that  it  was  not  facially  unreasonable  to  restrict  a
defendant  who  was convicted of cruelty to animals  from  owning
more than one animal and from owning a horse.35
          Here,   the  court  found  that  the  animals  suffered
horribly,  that this was a worst offense, and that  Allen  had  a
history  of  cruelty  to animals. Given these facts,  prohibiting
Allen  from  possessing animals during the term of her  probation
was  reasonably related to her rehabilitation and  to  protecting
the  public and was not unduly restrictive of her liberty.36  The
district  court was therefore justified in imposing the probation
condition.
          Allens main complaint is that the court did not mention
these   factors  when  it  discussed  the  probation   condition.
Instead,  the  court noted the lack of animal  control  probation
supervisors  and  the practical realities of  supervising  Allens
possession of animals.  However, it appears from the record  that
the  court  considered rehabilitation, protection of the  public,
and  the  reasonableness of restrictions on Allens liberty  along
with   the   practical  realities  of  enforcing  the   probation
condition.   The court simply did not repeat these findings  when
it discussed the probation condition and explained why monitoring
Allens possession of animals was not feasible.
          We conclude that the court did not abuse its discretion
by prohibiting Allen from possessing animals, other than her sons
dog, while on probation.

          Conclusion
          Allens sentence is AFFIRMED.
MANNHEIMER, Judge, dissenting.

          Krystal Allen was convicted of cruelty to animals.   As
a  condition  of Allens probation, the district court  prohibited
her  from  possessing any animals (other than the  dog  currently
belonging  to her son).  Allen asks us to overturn this condition
of her probation.
          As   the   facts   recited  in  the  majority   opinion
demonstrate, the challenged condition of probation appears to  be
eminently justified.  However, the real question in this case  is
whether  Allen  is  entitled to ask  this  Court  to  review  the
district courts decision.
          For  the reasons explained here, I conclude that  Allen
does  not  have  the right to appeal her sentence to  this  Court
(although  she  has the right to petition the supreme  court  for
discretionary review of her sentence).  I therefore dissent  from
my  colleagues  decision to adjudicate the lawfulness  of  Allens
probation condition.

          An overview of Alaska law governing appellate
          review of criminal sentences
          
                    Under    Alaska    law,    criminal
          defendants have an undoubted right to  appeal
          their sentences on the ground that illegality
          occurred  in  the sentencing  process   i.e.,
          that    the   sentencing   proceedings   were
          irregular, or that the sentencing judge erred
          when   making  pertinent  factual  or   legal
          rulings,  or  that  the  sentence  itself  is
          illegal.  Hillman v. Anchorage, 941 P.2d 211,
          213,  215  (Alaska  App. 1997);  Rozkydal  v.
          State,  938  P.2d 1091, 1093-94 (Alaska  App.
          1997).   However,  Alaska  law  restricts   a
          defendants  right  of  sentence   appeal    a
          technical  term that refers to  a  defendants
          right  to  appeal a lawfully imposed sentence
          on   the   sole  ground  that  one  or   more
          provisions  of  the  sentence  constitute  an
          abuse  of  sentencing discretion.   Rozkydal,
          938 P.2d at 1093-94.
          The  restrictions on the  right  of
sentence  appeal  are  codified  in   Alaskas
sentence   appeal  statute,   AS   12.55.120.
Subsection (a) of this statute is the portion
that governs misdemeanor sentence appeals  to
this  Court.   The  pertinent  part  of  this
subsection reads:

     (a)  A sentence of imprisonment lawfully
imposed ... for a term or for aggregate terms
...   exceeding  120  days  [of   unsuspended
incarceration] for a misdemeanor offense  may
be  appealed to the court of appeals  by  the
defendant on the ground that the sentence  is
excessive ... .

          The  first step in deciphering this
language is to draw a distinction between the
right  of  appeal (i.e., the right to  demand
appellate  review) and the right to  petition
(i.e., the right to ask an appellate court to
exercise its power of discretionary review).
          As    this   Court   explained   in
Rozkydal,   938  P.2d  at  1094-95,   Alaskas
sentence  appeal statute places  restrictions
on a defendants right to appeal a sentence on
the  sole ground that it is excessive  (i.e.,
that the judges decision constitutes an abuse
of  sentencing  discretion).   However,  even
when  a defendant is barred from appealing  a
sentence  on  this ground, a defendant  still
has  the  right to raise such a  claim  in  a
petition for discretionary sentence review.
          We   reached  this  conclusion   in
Rozkydal because the sentence appeal  statute
does  not purport to limit a defendants right
to  seek discretionary appellate review of  a
sentence,   because  Alaska  Appellate   Rule
215(a)  declares that the supreme  court  has
the  authority  to  engage  in  discretionary
review   of   any  sentence   that   is   not
appealable, and because, in State v. Browder,
486  P.2d  925,  930-31  (Alaska  1971),  the
supreme  court  suggested  that  it  has  the
constitutional  authority to review  (at  the
courts discretion) any ruling in any criminal
case.
          Thus,  the  truth of the matter  is
that  every defendant in Alaska has the right
to seek appellate review of their sentence on
the  ground that it is excessive.  The effect
of  our  sentence appeal statute  is  not  to
limit  appellate  review  of  sentences,  but
rather  to  define the manner in  which  that
appellate review is invoked and conducted.
          Defendants who are given a right of
sentence appeal under AS 12.55.120 can demand
appellate review of their sentences; that is,
the  appellate court is obliged to  entertain
the  defendants sentence appeal and to decide
the merits of the appeal.  Defendants who are
not  given the right of sentence appeal under
AS  12.55.120 can still seek appellate review
of  their  sentences, but they must  petition
the appellate court to exercise its power  of
discretionary  review  which means  that  the
appellate  court  can  decline  the  petition
without ordering preparation of a record  and
normal  briefing, and without  ever  deciding
the   underlying  merit  of  the   defendants
claims.
          There  is one final aspect  of  the
situation  that  must be  mentioned  at  this
point.  The Alaska Legislature has given this
Court  jurisdiction to hear sentence  appeals
brought  by  criminal  defendants,  but   the
legislature   has   not  given   this   Court
jurisdiction   to  hear  sentence   petitions
brought  by criminal defendants.  Because  of
this, defendants who have a right of sentence
appeal  under  AS 12.55.120 can  bring  their
appeal   to   this  Court,  but   all   other
defendants   that  is, the  defendants  whose
remedy  is  a  petition for  sentence  review
must  present their petition to  the  supreme
court.  See Rozkydal, 938 P.2d at 1098.

A  closer examination of AS 12.55.120(a), the
portion  of  Alaskas sentence appeal  statute
that  governs  Allens case, and  this  Courts
prior decisions interpreting that statute

          I  now  return  to AS 12.55.120(a),
the  portion  of the sentence appeal  statute
that governs misdemeanor sentence appeals  to
this  Court.   This portion  of  the  statute
declares:

     A   [lawfully   imposed]   sentence   of
imprisonment  ...  exceeding  120  days   [of
unsuspended  incarceration] for a misdemeanor
offense  may  be  appealed to  the  court  of
appeals  ... on the ground that the  sentence
is excessive[.]

          As  can be seen, a defendants right
of  appeal  is  restricted by  the  phrase  a
sentence  of  [unsuspended] imprisonment  ...
exceeding   120  days.   This  provision   is
ambiguous; the statute could potentially mean
three different things.
          First,   the   statute   might   be
construed  narrowly,  by  having  the  phrase
sentence  of  imprisonment  define  the  sole
aspect  of  a sentence that can be  appealed.
In other words, the statute could potentially
mean  that a misdemeanor defendant can appeal
a  sentence of imprisonment that exceeds  120
days to serve, but that the defendant has  no
right  to  appeal any other aspect  of  their
sentence.
          (See  AS  22.10.020(f), the related
statute  that  defines  the  superior  courts
sentence appeal jurisdiction.  The wording of
this  statute comes closest to embodying this
narrow  construction of the right of sentence
appeal.  AS 22.10.020(f) declares:  An appeal
may be taken [from the district court] to the
superior   court  on  the  ground   that   an
unsuspended    sentence    of    imprisonment
exceeding 120 days was excessive[,]  and  the
superior  court ... has the power  to  reduce
the sentence.)
          Second,  the  phrase  sentence   of
imprisonment  ... exceeding  120  days  might
constitute  a  threshold  that  triggers  the
right  of  sentence appeal.  In other  words,
the  statute  could potentially mean  that  a
misdemeanor defendant can appeal  any  aspect
of their sentence so long as the imprisonment
portion  of the sentence exceeds 120 days  to
serve.
          Third,   the  phrase  sentence   of
imprisonment  ... exceeding  120  days  could
conceivably  be  interpreted  as  a  specific
restriction on a defendants otherwise general
right  to pursue a sentence appeal.  In other
words,  the  statute could  potentially  mean
that a misdemeanor defendants right to appeal
the  imprisonment portion of  their  sentence
hinges on whether the defendant received more
than  120 days to serve, but that misdemeanor
defendants  otherwise  have  an  unrestricted
right  to  appeal any other aspect  of  their
sentence.
          Fifteen  years ago, in  Haggren  v.
State,  829 P.2d 842 (Alaska App.  1992),  we
partially   resolved   this   ambiguity    by
rejecting  the third potential interpretation
described  above.   That is,  we  interpreted
AS  12.55.120(d) to mean that defendants  who
receive  less  than the specified  amount  of
unsuspended  imprisonment have  no  right  to
appeal other aspects of their sentence.
          Here  is  the pertinent portion  of
our opinion in Haggren.  (At the time Haggren
was decided, the threshold amount of time  to
serve was 45 days rather than the current 120
days.)

     Haggrens  final argument  on  appeal  is
that   his   sentence  is  excessive.    [The
district court] sentenced Haggren to  a  fine
of $6,000 with $2,700 suspended.  [The court]
also  ordered Haggren to pay a forfeiture  of
$1,700, representing the fair-market value of
the  fish  Haggren  caught while  fishing  in
violation of the regulation.  Because Haggren
was  not  sentenced to a term of imprisonment
of  at  least  45 days, he has  no  right  to
appeal  his sentence.  Johnson v. State,  816
P.2d 220 (Alaska App. 1991).

Haggren, 829 P.2d at 845.
          Then, five years ago, in Richardson
v.  State,  47 P.3d 660, 663-64 (Alaska  App.
2002),  this  Court  resolved  the  remaining
statutory  ambiguity by adopting  the  second
potential  interpretation  described   above.
That  is, we held that AS 12.55.120(a)  gives
misdemeanor  defendants the right  to  appeal
any  aspect of their sentence, so long as the
defendant  received more  than  120  days  of
unsuspended incarceration.

My  colleagues decision to overrule  Haggren,
and  the requirements imposed by the doctrine
of stare decisis

          In  the present case, my colleagues
have  decided  to overrule the interpretation
of AS 12.55.120(a) that this Court adopted in
Haggren.
          As  explained above, Haggren  holds
that   the   statutory  phrase  sentence   of
imprisonment   ...   exceeding    120    days
constitutes  a  threshold  that  triggers   a
misdemeanor  defendants  right  of   sentence
appeal.  That is, a misdemeanor defendant has
no  right  to  appeal  any  aspect  of  their
sentence  unless the imprisonment portion  of
their sentence exceeds 120 days to serve.
          Allens brief to this Court does not
address   this  jurisdictional  issue.    She
simply  presents her sentence appeal argument
and  ignores the jurisdictional problem.  The
Municipality, on the other hand,  raises  the
jurisdictional issue and expressly relies  on
Haggren for the proposition that Allen has no
right  to appeal.  Allen has made no  attempt
to respond to the Municipalitys argument.
          (Because Allens case was filed as a
sentence  appeal under Alaska Appellate  Rule
215,  she  had no automatic right to  file  a
reply  brief.  See Appellate Rule  215(g)(3),
which  declares  that [n]o  reply  memorandum
shall  be filed [in a sentence appeal] unless
ordered  by  the court.  However,  after  the
Municipality raised the jurisdictional  issue
(i.e.,  a  new issue that was dispositive  of
the appeal), Allen did not seek permission to
file  a  reply brief or any other  responsive
pleading.)
          Despite the fact that Allen has not
asked us to overrule Haggren, and despite the
fact   that  Allen  has  not  submitted   any
briefing  on  this jurisdictional  issue,  my
colleagues  have  now  decided  to   overrule
Haggren   to  interpret  AS  12.55.120(a)  as
granting misdemeanor defendants an unfettered
right  to appeal any aspect of their sentence
other    than    a   term   of    unsuspended
imprisonment, as well as a limited  right  to
appeal  a  term  of unsuspended  imprisonment
(i.e., if it exceeds 120 days).
          In  support  of their decision,  my
colleagues offer various arguments as to  why
the  sentence appeal statute could reasonably
be   interpreted  in  the  manner  they   now
propose.  But because this Court has  already
interpreted this statute, the question of the
statutes  meaning is governed by the doctrine
of stare decisis.
          As  this Court noted in Erickson v.
State,  950 P.2d 580, 587 (Alaska App. 1997),
when  an  issue is governed by stare decisis,
it  is not enough ... to show that the [prior
controlling] decision was honestly  debatable
at  the time, and that it might have gone the
other  way.  Rather, a litigant who  asks  an
appellate  court  to  overrule  an   existing
judicial  interpretation of  a  statute  must
demonstrate   convincing  reasons   why   the
existing    interpretation   was   originally
erroneous  in other words, was never  legally
justifiable     or    why    the     existing
interpretation is no longer sound because  of
changed conditions.
          In  the present case, there  is  no
litigant   asking  this  Court  to   overrule
Haggren.   Rather, my colleagues  have  taken
this  task  upon themselves  and without  the
benefit of briefing.
          Nevertheless,  the  same  rule   of
stare decisis applies.  It is not enough  for
my  colleagues  to  show that  the  statutory
interpretation   adopted   in   Haggren   was
reasonably debatable, and that there might be
good   reasons  for  adopting   a   different
interpretation of the statute.  Rather (since
no  one  is claiming changed conditions),  my
colleagues  must  demonstrate  that  Haggrens
interpretation of the sentencing statute  was
originally  erroneous   i.e.,  never  legally
justifiable.
          For  the  reasons  that  follow,  I
conclude  that my colleagues have  failed  to
meet this burden.

My   colleagues  argument  that   the   prior
decisions of this Court are inconsistent

          My  colleagues note that this Court
has  been  inconsistent in our  treatment  of
misdemeanor sentence appeals.  We have issued
memorandum  decisions in  which  we  rejected
defendants attempts to appeal their sentences
when  the  defendants  did  not  receive  the
requisite time to serve.  On the other  hand,
we  have also issued memorandum decisions  in
which we allowed defendants to appeal various
aspects  of  their sentences even though  the
defendants did not receive the requisite time
to serve.
          One  can certainly fault this Court
for  applying  the  sentence  appeal  statute
inconsistently.   But the issue  here  is  to
identify  the  real meaning of that  statute.
Although it is true that this Court has, from
time  to time, resolved sentence appeals even
though  the  defendant did  not  receive  the
requisite amount of unsuspended imprisonment,
not   one   of   these  memorandum   opinions
discusses   the  jurisdictional  problem   or
contains  any  analysis of this  question  of
statutory interpretation.
          Moreover, even though it  might  be
argued that these memorandum decisions  imply
a  particular reading of the sentence  appeal
statute, it is improper for my colleagues  to
rely  on  those  unpublished  cases  for  any
proposition  of  law.  See Court  of  Appeals
Standing  Order  No. 3 and  Alaska  Appellate
Rule  214(d),  as  interpreted  in  McCoy  v.
State,  80  P.3d  751,  752-53  (Alaska  App.
2002), opinion on rehearing, 80 P.3d 757, 764
(Alaska  App. 2002)  all of which state  that
memorandum  decisions of this  Court  do  not
create   legal  precedent,  and  that   those
decisions do not constitute binding authority
for any proposition of law.
          My  colleagues also point out  that
there  is  one published decision, Jordan  v.
State,  681 P.2d 346 (Alaska App.  1984),  in
which   this   Court  decided  a   defendants
excessiveness challenge to a forfeiture  even
though  the  defendant did  not  receive  the
threshold amount of imprisonment.   But  this
Courts  resolution of the defendants sentence
appeal  claim  in Jordan is found  in  a  few
sentences  at  the end of a  lengthy  opinion
devoted to other issues  and, again, there is
no    mention   (much   less   a   meaningful
discussion)  of  the potential jurisdictional
problem.   Id.,  681 P.2d  at  350.1   It  is
obvious  that  the  State  did  not  raise  a
jurisdictional objection to Jordans excessive
forfeiture claim, and that this Court did not
focus on this issue.
          In  contrast, this Courts  decision
in  Haggren  (which  was issued  eight  years
later)  explicitly rests on  a  ruling  that,
under  AS  12.55.120(a), a defendant  has  no
right  to appeal any aspect of their sentence
appeal  unless  the  defendant  receives  the
requisite  time  to serve  specified  in  the
statute.
          (On  two  occasions after  Haggren,
this  Court  issued  published  decisions  in
which  we  reversed aspects of a  misdemeanor
defendants sentence even though the defendant
did  not receive the threshold amount of time
to  serve:   Ashton v. State, 737 P.2d  1365,
1366 & n. 1 (Alaska App. 1987) (a fine),  and
McCann  v.  State, 817 P.2d 484, 486  (Alaska
App.  1991) (a forfeiture).  However, in both
instances,  the  defendant claimed  that  the
challenged   portion  of  the  sentence   was
illegal because the sentencing court violated
a   governing   statute  when  imposing   the
sentence.   In  other words, these  were  not
sentence  appeals as defined in  Rozkydal  v.
State.)
          My  colleagues acknowledge that the
Haggren  decision  expressly  rejects   their
proposed   interpretation  of  the   sentence
appeal  statute.   But  they  do  not   truly
acknowledge  that  Haggren  is  a   published
decision of this Court  or, more importantly,
that  it  is  the only published decision  of
this  Court  that  explicitly  resolves  this
issue of statutory interpretation.
          Instead, my colleagues simply  lump
Haggren  with  this Courts other  unpublished
decisions  that are inconsistent  with  their
view  of  the  statute.  In other  words,  my
colleagues  treat Haggren as  just  one  more
instance  in  which  this  Court  refused  to
decide  an  excessive sentence claim  because
the  defendant did not receive the  requisite
amount  of time to serve.  Then my colleagues
          conclude that their proposed interpretation
of the statute is better supported.
          This  approach would be  lawful  if
Haggren    were   just   another   memorandum
decision.   But it is not.  Instead,  Haggren
is   binding  precedent  on  this  issue   of
statutory interpretation.  Because Haggren is
a  published decision, the doctrine of  stare
decisis  restricts this Courts  authority  to
change  its  mind  about  what  the  sentence
appeal  statute means.  It is not  sufficient
for my colleagues to conclude that their view
of  the  law is better.  Instead,  they  must
demonstrate  that Haggrens interpretation  of
the law was wrong from the beginning.

My colleagues argument that the inconsistency
of this Courts decisions is evidence that the
Alaska Legislature intended for defendants to
have  the unfettered right to appeal any non-
imprisonment aspect of their sentence

          There  is  another obstacle  to  my
colleagues  proposed  interpretation  of  the
sentence  appeal statute.  In 1995 (that  is,
three   years   after  this   Court   decided
Haggren), the Alaska Legislature amended both
the  sentence  appeal statute, AS  12.55.120,
and  the  corresponding statutes that  define
this  Courts  sentence  appeal  jurisdiction,
AS 22.07.020(b)  (c).
          These  1995 amendments were clearly
intended  to  impose further  limits  on  the
right  of  sentence appeal.  The  legislature
increased    the    threshold    amount    of
imprisonment  (i.e., the  minimum  amount  of
unsuspended jail time that triggers the right
of  sentence  appeal) from one  year  to  two
years  for  felonies, and  from  90  days  to
120 days for misdemeanors.  See SLA 1995, ch.
79,    7-8.   In  addition,  the  legislature
limited  the  right  of  sentence  appeal  in
situations where the defendants sentence  was
the  result of a negotiated sentencing  range
or  sentencing cap.  Id.  And the legislature
made  corresponding changes to  the  statutes
that  govern  this Courts authority  to  hear
sentence  appeals:  AS 22.07.020(b) (sentence
appeals   from   the  superior   court)   and
AS  22.07.020(c) (sentence appeals  from  the
district court).  See SLA 1995, ch. 79,   11-
12.
          When a statute has been the subject
of  judicial  interpretation, and  when  that
statute  is  subsequently re-enacted  without
alteration   of   the   language   that   was
judicially  construed,  the  prior   judicial
interpretation is presumed to govern the  new
version of the statute unless the legislature
affirmatively indicates a contrary intention.
See the discussion of this point in Patterson
v. State, 708 P.2d 712 (Alaska App. 1985):2

     [I]t is a well-established principle  of
statutory   construction   that   when    the
legislature  re-enacts  language   that   has
previously  been  judicially construed,  [the
legislature] is presumed to be aware  of  the
previous  construction and to [be using]  the
language in the sense given it by the court.

Patterson,  708 P.2d at 716, citing  Hart  v.
State,  702 P.2d 651, 655 (Alaska App. 1985).
See  also  Norman  J. Singer,  Sutherland  on
Statutes and Statutory Construction (6th ed.,
2000 revision),  49.09, Vol. 2B, pp. 103-112.
          When the Alaska Legislature amended
AS  12.55.120(a) in 1995, the legislature did
not  change  the  operative language  of  the
statute   i.e.,  the language that  reads,  A
sentence of imprisonment lawfully imposed ...
for   a  term  or  for  aggregate  terms  ...
exceeding  [so  many]  days  [of  unsuspended
incarceration]  ... may be  appealed  to  the
court  of appeals ... on the ground that  the
sentence is excessive.
          As  explained above, this operative
language had already been interpreted   three
years  before,  in Haggren  to  mean  that  a
defendant   whose  sentence  of   unsuspended
imprisonment  did  not exceed  the  specified
amount  had no right to appeal any aspect  of
their  sentence.   Thus, under  the  rule  of
construction  explained  (and   applied)   in
Patterson     and    Hart,    the     Haggren
interpretation of AS 12.55.120 is presumed to
be  the  correct interpretation of the  post-
1995  version of the statute, absent evidence
to the contrary.
          My  colleagues concede  that,  when
the  1995  amendments were making  their  way
through   the  legislature,  there   was   no
pertinent  discussion  of  how  the  sentence
appeal  statute  applied  to  defendants  who
wished to appeal the non-imprisonment aspects
of  their  sentences but who did not  receive
the   required   minimum   time   to   serve.
Seemingly,   under  the  rule  of   statutory
          construction applied in Patterson and Hart,
this silent legislative record should lead to
the  conclusion that the legislature did  not
intend  to disturb the interpretation of  the
sentence appeal statute announced in Haggren.
          But  my  colleagues  interpret  the
legislatures silence in exactly the  opposite
fashion.  The majority opinion declares:

We  presume [that] the legislature was  aware
of  the inconsistency of [this Courts]  prior
decisions   when   it   debated   the    1995
amendments, and we do not believe  [that  the
legislature] would have been silent  on  [the
issue  of  a defendants right to appeal  non-
imprisonment aspects of a  sentence] if  [the
legislature]  had intended to  eliminate  our
jurisdiction over [sentence] appeals  in  all
cases  [where defendants received]  sentences
of 120 days or less.

This reasoning makes no sense.
          First,  even though the legislature
may  have  been  aware that  this  Court  had
issued  inconsistent decisions on this point,
the  legislature  was presumably  also  aware
(1)  that memorandum decisions of this  Court
do  not create legal precedent, and (2)  that
the  only published decision addressing  this
point  of law  Haggren  expressly interpreted
the  sentence appeal statute as meaning  that
defendants did not have the right  to  appeal
any  aspect  of  their sentence  unless  they
received the specified minimum time to serve.
          Second,  even  if  the  legislature
believed  that,  as a result of  this  Courts
inconsistent  decisions, the answer  to  this
important      question     of      statutory
interpretation was unresolved or in doubt, it
is  nonsensical to think that the legislature
would   decide  to  resolve  this  issue   by
completely failing to address the issue  when
they amended the statute in 1995.
          The    underlying   flaw   in    my
colleagues  reasoning is that they  begin  by
assuming  something  they  wish  to  be  true
(i.e.,   that  before  the  1995  amendments,
defendants had an uncontested right to appeal
any aspect of a sentence, other than the term
of imprisonment), and then they conclude that
the legislatures silence on this point during
the  1995 revision of the statute constitutes
the  legislatures  implicit  affirmation   of
their   wish  (i.e.,  affirmation   of   this
supposed right of appeal).
          But  defendants  did  not  have  an
unrestricted   right  to  appeal   the   non-
imprisonment aspects of their sentences under
the  pre-1995  law.  Rather, the  controlling
interpretation  of Alaskas pre-1995  sentence
appeal  law was the interpretation  announced
in  Haggren:   defendants  had  no  right  to
appeal  any  aspect of their sentence  unless
they received the requisite amount of time to
serve.    Thus,  to  the  extent   that   the
legislatures silence constituted an  implicit
endorsement  of  any view of  the  law,  that
silence  was  an endorsement of Haggren.   It
makes absolutely no sense to suggest that the
legislature remained silent on this issue  in
the hope that their silence would be taken as
signifying   their  intention   to   overrule
Haggren.
           Even if we put aside the fact that
Haggren constituted binding precedent on this
issue, the most that could be said about this
Courts   pre-1995  decisions  is  that   they
presented  a  confusing or ambiguous  picture
concerning  a defendants right to appeal  the
non-imprisonment aspects of a sentence.   But
if  that  was the case, it makes no sense  to
construe  legislative silence as an  implicit
endorsement of one view or the other.

My   colleagues  have  not  shown  that   the
decision in Haggren was originally erroneous

          If my colleagues desire to overrule
Haggren,   the  doctrine  of  stare   decisis
requires them to demonstrate that the Haggren
decision was originally erroneous or that the
Haggren  decision is no longer sound  because
of  changed  conditions.  Since my colleagues
make no claim that conditions have changed in
any  relevant way, they are obliged  to  show
that  Haggren was originally erroneous  i.e.,
that  the  Haggren decision was  not  legally
justifiable from the beginning.
          As  already discussed, the sentence
appeal  statute, AS 12.55.120(a),  is  worded
ambiguously.  The statutory reference  to  an
unsuspended  term  of imprisonment  exceeding
120 days could potentially be interpreted  in
three different ways.  In Haggren, this Court
interpreted  this  language  as   setting   a
threshold  for misdemeanor sentence  appeals.
That  is, Haggren interpreted the statute  to
mean  that defendants have no right to appeal
any  aspect  of  their sentence  unless  they
receive  more  than the specified  amount  of
unsuspended imprisonment.
          There  was no pertinent legislative
commentary or history on this question of law
at  the  time  Haggren was decided.   Indeed,
even   after  the  1995  amendments  to   the
sentence  appeal  law,  there  still  is   no
pertinent legislative commentary or  history.
But  Haggrens interpretation of AS  12.55.120
is    supported    by   the    language    of
AS 22.07.020(c), the counterpart statute that
defines  this  Courts authority to  entertain
sentence appeals from the district court.
          This     Court    has    repeatedly
recognized    that   these    two    statutes
AS 12.55.120(a), the statute that defines the
right  of  sentence  appeal,  and  AS  22.07.
020(d), the statute that defines this  Courts
jurisdiction to hear sentence appeals  are to
be  read in pari materia.  That is, they  are
to be interpreted in light of each other, and
in  a  manner  that renders them harmonious.3

          The   pertinent   portion   of   AS
22.07.020(c) declares:

     The court of appeals has jurisdiction to
review ... the final decision of the district
court  on  a sentence imposed by  it  if  the
sentence  exceeds  120  days  of  unsuspended
incarceration for a misdemeanor offense.

This  statute  does  not contain the ambiguous  wording
found in AS 12.55.120.  That  is, AS 22.07.020(c)  does
not refer to this Courts authority to review a sentence
of imprisonment imposed by the district court.  Rather,
AS  22.07.020(c)  speaks of  and defines   this  Courts
authority to review any final decision of the  district
court on a sentence imposed by [that court].
In  this statute, the legislature has given this  Court
the  authority to review a final [sentencing]  decision
of  the district court only if the sentence exceeds 120
days  of  unsuspended incarceration.  This  wording  is
completely   consistent  with,  and  indeed   supports,
Haggrens interpretation of the sentence appeal statute:
a  defendant  has no right to appeal any  aspect  of  a
misdemeanor  sentence, and this Court has no  right  to
review any aspect of a misdemeanor sentence, unless the
sentence includes a term of imprisonment exceeding  120
days to serve.
          In other words, an examination of AS 22.07.020(c) shows
that  the Haggren decision was eminently justifiable at the time.
(And my colleagues have not demonstrated, or even suggested,  any
          change of circumstances that would render the Haggren decision no
longer correct.)
          In  addition  to  the  fact that  the  sentence  appeal
statute, AS 12.55.120, and this Courts jurisdictional statute, AS
22.07.020(c), must be read in pari materia, this Court  has  also
held  that  Alaska  Appellate Rule  215(a)   the  rule  governing
sentence appeals and sentence petitions  must likewise be read in
pari materia with these two statutes.
          As  we  explained  in  Peters v. State,  943  P.2d  418
(Alaska  App.  1997), the legislative history of  Appellate  Rule
215(a)  demonstrates that the supreme court amended this rule  in
1996  to  bring  it  into conformity with the  legislatures  1995
amendments  to  the  sentence  appeal  statute  and  this  Courts
jurisdictional statute:
          
     Just  as AS 22.07.020 and [AS] 12.55.120
should   be  read  together  and  interpreted
harmoniously, Appellate Rule 215(a)(1) should
also  be  interpreted so as to be  consistent
with these statutes.  Although Appellate Rule
215(a)  has  a history of inconsistency  with
the statutory limits on sentence appeals, the
supreme  court appears to have  designed  the
current  version of Rule 215(a)(1) to conform
to   the  legislatures  1995  amendments   to
AS 12.55.120 and AS 22.07.020.  The statutory
amendments  were  enacted  in  1995,   taking
effect  July  1,  1995.   The  supreme  court
issued   [Supreme  Court  Order   No.]   1226
amending  Appellate Rule 215  in  January  of
1996.    With  this  amendment[,]  the  court
abandoned the 45-day sentence appeal limit to
which  it had adhered since 1976, and adopted
limits  on the defendants sentence appeal  of
right  that correspond exactly to  the  newly
enacted   limits  on  the  court  of  appeals
sentence  appeal jurisdiction.  Any ambiguity
in Appellate Rule 215(a)(1) as amended should
therefore be interpreted in favor of  harmony
with  the  new AS 12.55.120 and  the  new  AS
22.07.020.

Peters, 943 P.2d at 420.  Thus, we held, Appellate Rule 215(a)
must  be  read  in pari materia with AS  12.55.120  and
AS 22.07.020(b)  (c).
Appellate   Rule  215(a)(1),  which   is   titled   [A]
Defendants  Right to Appeal [a] Sentence as  Excessive,
tracks  the  language of the sentence  appeal  statute,
AS  12.55.120(a),  as  amended by the  legislature  the
preceding year (1995):

     A  defendant  may appeal an  unsuspended
sentence  of  imprisonment that  exceeds  two
years for a felony offense or 120 days for  a
misdemeanor  offense on the ground  that  the
sentence  is  excessive, unless the  sentence
was   imposed  in  accordance  with  a   plea
agreement that provided for imposition  of  a
specific sentence or a sentence equal  to  or
less than a specified maximum sentence.  If a
sentence is imposed in accordance with a plea
agreement   that  provides  for   a   minimum
sentence, a defendant may appeal as excessive
only  the  part of the sentence that  exceeds
the  minimum sentence by more than two  years
for  a  felony  offense or  120  days  for  a
misdemeanor offense.

Because  this appellate rule is worded so as to  mirror
the  provisions of AS 12.55.120(a), the rule presumably
was  intended  to mean the same thing as  the  statute.
That is, in the absence of evidence to the contrary, we
must  assume that Appellate Rule 215(a)(1) was intended
to  describe the same right of appeal that is described
in  the  sentence appeal statute.  And in  early  1996,
when  the  supreme  court promulgated  this  rule,  the
governing  interpretation  of  a  defendants  right  of
sentence   appeal   under   AS   12.55.120   was    the
interpretation adopted by this Court in Haggren.
          Subsection  (2)  of Rule 215(a), which  is  titled  [A]
Defendants  Right  to Appeal [a] Sentence on Grounds  Other  Than
Excessiveness,  codifies our holding in Rozkydal  concerning  the
types   of  sentencing  issues  that  can  be  raised  on  appeal
notwithstanding   the  legislatures  restrictions   on   sentence
appeals.  This subsection of Rule 215(a) states:
          
               A defendant may appeal a sentence of any
          length  on  grounds other than excessiveness,
          including but not limited to:  illegality  of
          the sentence; erroneous findings by the trial
          court  that  affect  the statutory  range  of
          sentences to which the defendant is  subject;
          and   procedural  errors  in  the  sentencing
          proceeding.
          
          The  supreme  courts historical file on Appellate  Rule
215(a) shows that this language was added to the rule in response
to  a letter that Justice Warren Matthews sent to the Court Rules
Attorney.   In  his  letter, Justice Matthews noted  this  Courts
recent  decision in Rozkydal, and he expressed concern that  Rule
215  did  not  adequately clarify the fact that the  legislatures
restrictions on sentence appeals did not limit a defendants right
to file an appeal raising statutory or procedural objections to a
sentencing decision.  The minutes of the supreme courts Appellate
Rules  Committee indicate that, in response to Justice  Matthewss
concerns,  a  committee member (Assistant Attorney  General  Eric
Johnson)  drafted  the language that currently  appears  in  Rule
215(a)(2).
          Thus,  subsection  (2)  of Appellate  Rule  215(a)  was
intended to confirm this Courts jurisdiction to hear appeals that
raise  claims  of  legal or procedural error  at  sentencing  (as
opposed  to  claims  that the lower court abused  its  sentencing
discretion).
          Finally,  subsection  (5)  of  Appellate  Rule   215(a)
addresses  a  defendants right to petition the supreme  court  to
review  a  sentence that is not appealable to  this  Court  under
subsection (1) of the rule.  Appellate Rule 215(a)(5) states:
          
     (5)  Right to Seek Discretionary  Review
for  Excessiveness.   A  defendant  may  seek
discretionary   review  of   an   unsuspended
sentence   of  imprisonment  which   is   not
appealable under subparagraph (a)(1) [of this
rule] by filing a petition for review in  the
supreme court under Appellate Rule 402.  ...

As  can  be  seen, subsection (5) speaks of unsuspended
sentence[s]   of   imprisonment   the  same   ambiguous
language  that is found in the sentence appeal statute,
AS  12.55.120(a).   And in Haggren, a  decision  issued
almost four years before the supreme court enacted  the
current  version of Appellate Rule 215(a),  this  Court
gave   a   binding  interpretation  to  that  ambiguous
language.
As  explained above, when statutory language  has  been
judicially  construed, the legislature is  presumed  to
act with awareness of that judicial interpretation when
it  amends  or  re-enacts the statute.   And  when  the
supreme  court  engages in its legislative  role  under
Article  IV, Section 15 of our constitution  (that  is,
when the supreme court enacts court rules), the supreme
court  is likewise presumed to act with awareness  that
particular   statutory  language  has  been  judicially
construed   and  the  court is  presumed  to  use  that
language   in   conformity  with  the  prior   judicial
interpretation, absent evidence to the contrary.
          Here, there is no evidence to the contrary.  During our
efforts  to  research the meaning of Appellate  Rule  215(a),  we
examined the pertinent legislative history file kept by the Court
Rules  Attorney.  The records pertaining to Appellate Rule 215(a)
contain no mention of the issue presented in this case  i.e., the
possibility that a defendant who received less than the threshold
amount  of imprisonment might wish to appeal an aspect  of  their
sentence  other than the term of incarceration (e.g., a condition
of  probation, or the term of a license revocation, or the amount
of  a  fine or forfeiture).  Moreover, the supreme courts records
contain  no  discussion of this Courts decision in Haggren   much
less  any  indication that the supreme court disagreed  with,  or
wished to overturn, the Haggren decision.
          To sum up this discussion of Appellate Rule 215(a):  No
provision of this rule addresses the issue of whether a defendant
who  receives less than the threshold amount of time to serve can
nevertheless  appeal  a condition of probation,  the  term  of  a
license  revocation, or the amount of a fine or forfeiture.   The
supreme  courts historical file on Appellate Rule 215(a) contains
no mention of these types of appeals.
          As  I  noted  above,  this Court held  in  Peters  that
Appellate  Rule  215(a) is to be read in pari  materia  with  the
sentence  appeal statute and this Courts jurisdictional  statute.
Accordingly,  the  supreme courts silence on  the  jurisdictional
issue  presented in this appeal means that Appellate Rule  215(a)
must  be interpreted in conformity with the construction that  we
gave to the sentence appeal statute in Haggren.
          In  other words, the fact that the supreme courts  file
contains  no discussion of this issue must be taken to mean  that
the supreme court did not intend to overrule this Courts decision
in  Haggren.   The  supreme court did not intend  Appellate  Rule
215(a)  to  authorize independent challenges to the  severity  of
probation  conditions, license revocations, fines, or forfeitures
because  the court viewed these types of challenges as  excessive
sentence  claims  that were barred unless the defendant  received
the threshold amount of imprisonment.

          My   colleagues  argument  that  allowing   a
          broader  scope  of sentence appeals  is  good
          policy
          
          My  colleagues  final  argument  is
that  it  is better policy to give defendants
the  unrestricted right to  appeal  all  non-
imprisonment aspects of their sentence,  even
when  the defendant may have received  little
or   no  imprisonment.   Here  is  what   the
majority opinion says:

     In   the   absence  of  an   affirmative
indication from the legislature,  we  do  not
believe  [that] the legislature  intended  to
allow a defendant ... to appeal a potentially
onerous  [probation condition or]  a  20-year
revocation  of  [their] drivers  license  [if
they  received  121 days to  serve,]  but  to
limit  a  defendant [who receives] a  120-day
sentence  to  discretionary  review  by   the
supreme  court  [of] the same claim[s].   ...
[H]aving  this court decide a  claim  that  a
probation   condition  is  illegal[,]   while
leaving  to  the supreme court  discretionary
review   over  whether  the  same   probation
condition was an abuse of discretion[,] would
result    in    unnecessary    administrative
difficulties.

Again, there are several flaws in this reasoning.
First,  this  Court is not empowered to  interpret  the
sentence  appeal statute in any manner we wish  in  the
absence  of  an affirmative [contrary] indication  from
the  legislature.   Instead, our  decision  in  Haggren
provides  the  starting  point  for  interpreting  this
statute,  and  the legislatures subsequent  silence  on
this  point  is presumed to be an acquiescence  in  the
Haggren  decision.  Thus, it is my colleagues who  need
an  affirmative indication from the legislature  before
they can depart from Haggren.
Second,  whenever  a dividing line is  erected  between
defendants who have the right to appeal their sentences
and  defendants who must petition for review  of  their
sentences, there will inevitably be some cases  in  the
latter group that call out for appellate review.   That
is,  there will be defendants who receive 120  days  or
less to serve (in other words, not enough time to serve
to  trigger  the right of appeal), but whose  fines  or
conditions  of  probation or license  revocations  will
nevertheless be clearly unreasonable.
          But  this does not mean that the dividing line  created
by  the  legislature  is  untenable, or that  it  should  not  be
enforced.  As this Court explained in Rozkydal,
          
               The   premise  underlying  any  sentence
          appeal  dividing line (whether that  line  is
          drawn  at  45  days or at 2  years)  is  that
          lesser  sentences  are  less  likely  to   be
          excessive.   If  lesser  sentences  are  less
          likely  to constitute an abuse of discretion,
          then there is arguably less justification for
          conducting a full appellate review of each of
          these sentences.  The legislative history  of
          AS   12.55.120  shows  that  the  legislature
          relied  on  this reasoning when it restricted
          ... sentence appeals[.]
          
Rozkydal, 938 P.2d at 1096.
          In  other words, even though my colleagues may  believe
that  it  creates  unnecessary  administrative  difficulties   to
require some defendants to petition for appellate review  of  the
amount of their fines or the conditions of their probation or the
length  of their license revocations, the legislature could   and
did  reasonably view the matter differently.
          The  legislature could reasonably infer  that,  in  the
average  case, if a defendant receives relatively little time  to
serve  (2 years or less for a felony, or 120 days or less  for  a
misdemeanor), there is a correspondingly smaller chance that  the
sentencing  judge  will have abused his or  her  discretion  when
setting the amount of the defendants fine or forfeiture,  or  the
conditions  of  the defendants probation, or the  length  of  the
defendants  license  revocation.   Accordingly,  the  legislature
could   properly  conclude  that  it  would  be  an   unnecessary
expenditure of judicial resources to give all of these defendants
the right to demand full appellate review of their sentences  and
that  it makes more sense to require these defendants to petition
for  review,  thus allowing the appellate court to  choose  which
sentencing cases merit full appellate review.4
          And,  in  the  final analysis, this is the legislatures
decision.   The  legislature  is the branch  of  government  that
decides which defendants are entitled to file sentence appeals in
this  Court,  and  which defendants must petition  for  appellate
review  of  their  sentences.  The legislatures decision  remains
binding, regardless of whether the members of this Court  believe
that the legislature might have made a better decision.

          Conclusion
          
          This case involves a defendant  who
received only 30 days to serve but who claims
that  one  of the conditions of her probation
is  unreasonable.  Under AS 12.55.120(a),  as
interpreted  by  this Court in  Haggren,  the
defendant   has  no  right  to  pursue   this
sentence appeal.
          My   colleagues  have  decided   to
overrule  Haggren.  They take this step  even
though  the defendant does not ask us  to  do
this,  and  even  though  neither  party  has
briefed  the  question  of  whether  Haggrens
interpretation of the sentence appeal statute
is correct.
          To   reach their desired result, my
colleagues have ignored the doctrine of stare
decisis   the  rules  that  govern  a  courts
authority  to  overrule its prior  decisions.
My  colleagues have also ignored the rule  of
statutory   construction  that   applies   to
statutes  and  court rules which  incorporate
language  that  has already  been  judicially
construed.
          My   colleagues  may  believe  that
Haggren  was wrongly decided.  But  they  are
not  writing  on  a clean slate.   There  are
rules   that   limit   an  appellate   courts
authority  to  overrule its prior  decisions.
There  are also rules that limit an appellate
courts authority to adopt a new and different
interpretation  of a statute that  the  court
has  previously construed.  Those rules exist
for  a reason.  The legal community, and  the
community  at large, must have some guarantee
that  the law will not change merely  because
the membership of this Court has changed.
          For these reasons, I dissent.



                              
_______________________________
     1   Anchorage   Municipal  Code  (AMC)   8.55.010.A.2,   AMC
8.55.010.A.3, and AMC  8.30.080.A.1, respectively.

     2  Hillman  v. Anchorage, 941 P.2d 211, 212-13 (Alaska  App.
1997).

     3  See  id.;  State v. Chaney, 477 P.2d 441, 443-44  (Alaska
1970).   See  also AS 12.55.005 (codifying the Chaney  sentencing
criteria).

     4  Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App. 1997)
(discussing  the  type  of  sentence  appeal  authorized  by   AS
12.55.120);  see  also  Richardson v. State,  47  P.3d  660,  663
(Alaska  App.  2002) (observing that AS 22.07.020(c) incorporates
the limitation on sentence appeals in AS 12.55.120(a)).

     5  Wharton  v.  State,  590  P.2d 427,  429  (Alaska  1979);
Gilligan v. State, 560 P.2d 17, 18 n.2 (Alaska 1977).

     6 See AS 22.07.010.

     7  Richardson, 47 P.3d at 663 (citing Hillman, 941  P.2d  at
215).

     8 47 P.3d 660.

     9 Id. at 662-64.

     10 Id. at 663.

     11 Id. at 661-62.

     12 Id. at 663.

     13 Id. at 664.

     14 Id.

     15 829 P.2d 842 (Alaska App. 1992).

     16 Id. at 845; Bingaman v. Anchorage, Alaska App. Memorandum
Opinion  and Judgment No. 4179 at 2, n.2 (Feb. 2, 2000), 2000  WL
124801  at  *1,  n.2;  Jerrel v. State,  Alaska  App.  Memorandum
Opinion  and  Judgment No. 2533 at 14 (Nov.  4,  1992),  1992  WL
12153274 at *7.

     17 See, e.g., Jordan v. State, 681 P.2d 346, 350 (Alaska App.
1984)  (considering  an excessive sentence  claim  involving  the
forfeiture  of  an airplane although Jordan did not  receive  any
unsuspended   incarceration);  Perez  v.   State,   Alaska   App.
Memorandum  Opinion and Judgment No. 2486 at 8 (Aug.  12,  1992),
1992  WL 12153294 at *3 (considering an excessive sentence  claim
involving  a  $1000  fine  with  $500  suspended,  150  hours  of
community  work  service, and 180 days with  165  days  suspended
although   Perez   only   received   15   days   of   unsuspended
incarceration);  Kuznicki v. Anchorage,  Alaska  App.  Memorandum
Opinion  and Judgment No. 2191 at 1-4 (April 10, 1991),  1991  WL
11650698  at *1 (considering an excessive sentence claim although
Kuznicki   was   only  sentenced  to  15  days   of   unsuspended
incarceration);  Kelley v. State, Alaska App. Memorandum  Opinion
and Judgment No. 2102 at 6-7 (Oct. 3, 1990), 1990 WL 10509548  at
*3 (considering a claim that a fine was excessive although Kelley
was  not sentenced to any imprisonment); Andrews v. State, Alaska
App.  Memorandum Opinion and Judgment No. 1697 at  1-2  (Nov.  9,
1988),  1988 WL 1513112 at *1 (considering an excessive  sentence
claim   although  Andrews  was  only  sentenced  to  6  days   of
unsuspended incarceration).

     18 681 P.2d 346.

     19 Id. at 350.

     20 Alaska App. Memorandum Opinion and Judgment No. 2102, 1990
WL 10509548.

     21 Id. at 6-7, 1990 WL 10509548 at *3.

     22 Id. at 8, 1990 WL 10509548 at *3.

     23 51 P.3d 962 (Alaska App. 2002).

     24 Id. at 966-67.

     25  Kodiak Island Borough v. Exxon Corp., 991 P.2d 757,  761
(Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist., 864  P.2d
526, 530-31 (Alaska 1993)).

     26  Mack  v.  State, 900 P.2d 1202, 1205 (Alaska App.  1995)
(quoting  Belarde  v. Anchorage, 634 P.2d 567, 568  (Alaska  App.
1981)).

     27 See Richardson, 47 P.3d at 664.

     28  See February 27, 1995, Transmittal Letter for H.B.  201,
1995 House Journal 490.

     29  See  Committee  Minutes, House State  Affairs  Committee
(March 18, 1995), House Judiciary Committee (March 27, 1995), and
House  Finance  Committee (April 12, 1995)  (testimony  of  Lauri
Otto,  Deputy Attorney General, Criminal Division, Department  of
Law,  on H.B. 201).

     30 See Alaska R. App. P. 215(a)(5).

     31 See 47 P.3d at 664.

     32  See  Haggren,  829  P.2d at 845; Bingaman,  Alaska  App.
Memorandum Opinion and Judgment No. 4179 at 2 n.2, 2000 WL 124801
at  *1  n.2; Jerrel, Alaska App. Memorandum Opinion and  Judgment
No. 2533 at 14, 1992 WL 12153274 at *7.

     33 Parks v. State, 571 P.2d 1003, 1005 (Alaska 1977); Sweetin
v. State, 744 P.2d 424, 427 (Alaska App. 1987).

     34  See  Baum v. State, 24 P.3d 577, 581 (Alaska App.  2001)
(affirming probation condition that restricted defendant, who was
convicted of unlawfully taking game, from applying for a  hunting
or  guiding  license for ten years); Allain v.  State,  810  P.2d
1019,  1022-23 (Alaska App. 1991) (affirming probation  condition
that restricted defendant, who was convicted of sexual abuse of a
minor, from having unsupervised contact with minors under sixteen
years of age); Tiedeman v. State, 576 P.2d 114, 116 (Alaska 1978)
(affirming  probation  condition that restricted  defendant  from
appearing   drunk  in  public  when  alcohol  was  an   important
contributing factor to his criminal behavior).

     35  Mahan,  51  P.3d at 966 (claim waived due to  inadequate
briefing).

     36  See Baum, 24 P.3d at 582; Nitz v. State, 745 P.2d  1379,
1381 (Alaska 1987); Tiedeman, 576 P.2d at 116.

1 Here is the paragraph:
    Dr. Jordan appeals his sentence as excessive.  His only real
complaint concerns the forfeiture of the airplane.   He
asserts that it is unclear whether the plane is  to  be
forfeited, or whether the trial court imposed a $10,000
fine  which would result in a forfeiture if  not  paid.
Since the maximum fine allowed is $1,000, AS 16.05.900,
Jordan  contends that the sentence may be illegal.   We
disagree.    Our  review  of  Judge  Blairs  sentencing
remarks and the judgment makes it clear to us that  the
loss of the airplane was not intended as a fine but  as
a  forfeiture.  Judge Blair never referred to a fine in
his  sentencing  remarks, only to  the  fact  that  the
airplane was to be forfeited.  Dr. Jordans sentence  is
not illegal.  Cf. F/V American Eagle v. State, 620 P.2d
657,  671-72 (Alaska 1980), appeal dismissed, 454  U.S.
1130,  102 S.Ct. 985, 71 L.Ed.2d 284 (1982).   Finally,
Dr.  Jordan contends that even if legal, the forfeiture
of  his  plane  was excessive under the  circumstances.
The  trial court determined that the forfeiture of  the
airplane was necessary for the purpose of deterring the
Jordans  and others similarly situated from  committing
same  day  airborne violations.  We agree.   Since  the
airplane   was  an  instrumentality  by  which   Jordan
committed  the offense in question, its forfeiture  was
appropriate under the circumstances.  See AS 16.05.190.
The  penalty imposed was not clearly mistaken.  McClain
v. State, 519 P.2d 811, 813-14 (Alaska 1974).

2 Reversed on other grounds in State v. Patterson, 740 P.2d
944 (Alaska 1987).

3 See Richardson v. State, 47 P.3d 660, 662-63 (Alaska App.
2002); Peters v. State, 943 P.2d 418, 420 (Alaska  App.
1997);  Hillman  v.  Anchorage, 941  P.2d  211,  212-13
(Alaska App. 1997).

     4  See the remarks of Deputy Attorney General Laurie Otto to
the House Judiciary Committee in March 1995, when the legislature
was   considering  the  statutory  amendments  that  raised   the
threshold  amount of time to serve from 1 year  to  2  years  for
felonies, and from 90 days to 120 days for misdemeanors:
        People are [currently] able to file sentence appeals as a
     matter of right ... if [they] have been given a sentence  in
     excess  of  [one]  year  for a  felony  or  90  days  for  a
     misdemeanor[.]   [If  you  meet  this  threshold  amount  of
     imprisonment], that is your right.  There is  no  screening.
     You can file an appeal, and the court has to hear it.
        We  are upping those limits to two years for a felony and
     120  days  for a misdemeanor.  We have ... looked  at  Court
     System  statistics,  and  we see  that  only  a  very  small
     percentage of sentence appeals are granted  that 90  percent
     of  sentences are affirmed.  [When felony defendants receive
     two  years  or  less to serve,] the courts pretty  routinely
     reject  [their] sentence appeals.  So we tried to [identify]
     the  bulk  of sentence appeals [which] were routinely  being
     denied by the courts.
        Part of the theory here is to allow the agencies involved
     the  courts, the prosecutors, the public defenders  and  the
     Office of Public Advocacy  to focus on the cases where there
     is  a  likelihood of [the defendants] prevailing, as opposed
     to  the  cases where [challenges to sentences] are routinely
     being  denied,  and  [where] we are  all  just  churning  up
     resources.

See  Minutes of the House Judiciary Committee for March 27, 1995,
Tape 95-36, Side A, between log numbers 400 and 730.

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