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Lamkin v. State (12/17/2010) ap-2287

Lamkin v. State (12/17/2010) ap-2287

                                                 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. 

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

DOUGLAS BRYAN LAMKIN,                             ) 
                                                  )         Court of Appeals No. A-10741 
                            Appellant,            )       Trial Court No. 3AN-09-7121 CR 
                                                  ) 
             v.                                   )                   O P I N I O N 
                                                  ) 
STATE OF ALASKA,                                  ) 
                                                  ) 
                            Appellee.             )        No. 2287 - December 17, 2010 
                                                  ) 

                 Appeal     from    the  Superior     Court,   Third    Judicial   District, 
                 Anchorage, Michael Spaan, Judge. 

                 Appearances:        Kevin    T.  Fitzgerald,   Ingaldson,    Maassen     & 
                 Fitzgerald,    P.C.,   Anchorage,     for  the  Appellant.    Robert     E. 
                 Henderson, Assistant District Attorney, Adrienne P. Bachman, 
                 District Attorney, Anchorage, and Daniel S. Sullivan, Attorney 
                 General, Juneau, for the Appellee. 

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

                 COATS,      Chief Judge. 

----------------------- Page 2-----------------------

                 Douglas Bryan Lamkin pled guilty to one count of assault in the third 

                              1                                       2 
degree (a class C felony)  and driving under the influence.             At sentencing, Lamkin asked 

the court to suspend the imposition of his sentence.  The State opposed, arguing that the 

court was prohibited by statute from suspending the imposition of sentence for a felony 

assault.   Superior     Court   Judge    Michael   Spaan      concluded      that   Lamkin,   a  first-time 

offender, would have been a suitable candidate for a suspended imposition of sentence, 

but he concluded that he was prohibited from suspending the imposition of Lamkin's 

sentence by AS 12.55.085(f).            Lamkin appeals.        We agree with the superior court's 

interpretation of the statute.      We therefore affirm. 

                 Discussion 

                 The resolution of this issue requires us to interpret two statutes.             The first 

statute, AS 12.55.125(e)(1), sets out the penalties for first felony offenders convicted of 

class C felonies.  The statute provides a presumptive range of sentences (in most cases, 

zero to two years of imprisonment).   It also provides that "a defendant sentenced under 

this paragraph may, if the court finds it appropriate, be granted a suspended imposition 

of sentence under AS 12.55.085 ... ." 

                 The second statute in question is AS 12.55.085.  The first part of the statute 

states   that   "[e]xcept   as   provided   in   (f)   of   this   section,   if   it   appears   that   there   are 

circumstances in mitigation of the punishment, or that the ends of justice will be served, 

the court may, in its discretion, suspend the imposition of sentence ... ." 

         1  AS 11.41.220(a)(1)(B); AS 11.41.220(e). 

        2   AS 28.35.030(a)(2). 

                                                   - 2 -                                                2287 

----------------------- Page 3-----------------------

                 AS 12.55.085(f) sets out restrictions on a court's ability to suspend the 

imposition of sentence: 

                 The court may not suspend the imposition of sentence of a 
                 person who 

                         (1) is convicted of [certain crimes against the person, 
                 including Lamkin's offense, assault in the third degree]; 

                         (2) uses a firearm in the commission of the offense for 
                 which the person is convicted; or 

                         (3)  [is   convicted   of   assault   in   the   fourth   degree   or 
                 reckless endangerment and has been previously convicted of 
                 an assaultive crime]. 

                 Lamkin        argues     that    there    is   "an     apparent     conflict"     between 

AS 12.55.125(e)(1) and AS 12.55.085.  And he offers a way to reconcile this purported 

conflict. According to Lamkin, AS 12.55.125(e)(1), standing alone, authorizes the court 

to   suspend   the   imposition   of   sentence   of   a   person   convicted   of   any   class   C   felony, 

including   assault   in   the   third   degree.   Lamkin   would   interpret   AS   12.55.085(f)   as 

precluding a court from suspending the imposition of sentence only if Lamkin had been 

convicted of assault in the third degree and had used a firearm in the commission of the 

offense or was a repeat assaultive offender. 

                 We reject this proposed interpretation of the statutes.  One general rule of 

statutory construction is that "where one statute deals with a subject in general terms and 

another     deals   with   a  part   of  the  same    subject   in  more    detail,   the  two   should    be 

harmonized   if   possible,   but   if   there   is   any   conflict,   the   more   specific   statute   will 
prevail."3   Moreover, AS 12.55.125(e)(1) expressly refers to AS 12.55.085 as the statute 

defining   a    court's   authority   to   grant   a   suspended   imposition   of   sentence,   and   the 

        3    Waiste v. State, 808 P.2d 286, 289 (Alaska App. 1991). 

                                                    - 3 -                                                2287 

----------------------- Page 4-----------------------

limitations on a court's authority to suspend the imposition of sentence are set out in AS 

12.55.085(f). 

                Alaska Statute 12.55.085(f) lists three conditions under which the trial court 

may   not   suspend   sentence.     Because   the   statute   uses   the   word   "or"   to   separate   the 

conditions, the presumptive construction of the statute is that if any one of the conditions 
is satisfied, then the sentence may not be suspended.4             We have previously interpreted 

former versions of AS 12.55.085(f) consistently with this principle and held that if the 

offense for which the defendant was convicted fell within either (1) or (2) or (3), the 
court   was    without   authority    to  suspend    the   imposition    of  sentence.5    One     of  the 

limitations set forth in AS 12.55.085(f) is that the court is not authorized to suspend the 

imposition of sentence for offenders, such as Lamkin, who are convicted of a felony 

assault, including assault in the third degree. 

                Thus, Lamkin's interpretation of AS 12.55.085 conflicts with the normal 

rules of statutory construction and prior decisions of this court interpreting the statute. 

His     argument      rests   on    the   questionable      assumption      that   when      it  enacted 

AS 12.55.125(e)(1), the legislature was either unaware of AS 12.55.085 or intended to 

modify that statute.     The legislative history does not support this assumption. 

                The legislature modified AS 12.55.085(f) to limit the discretion of courts 

to   suspend   the   imposition   of   sentence   for   assaultive   crimes   three   times   from   1990 
through 1996.6     In 1996, the legislature enacted the version of subsection (f) that was in 

        4   See MacDonald v. State, 83 P.3d 549, 550 (Alaska App. 2004) (reading the word "or" 

in the disjunctive). 

        5   Orr-Hickey v. State, 973 P.2d 612, 615 (Alaska App. 1999); Mack v. State, 900 P.2d 

1202, 1204 (Alaska App. 1995). 

        6   Ch. 196,  1, SLA 1990; ch. 40,  7, SLA 1993; ch. 55,  1, SLA 1996. 

                                                  - 4 -                                             2287
 

----------------------- Page 5-----------------------

place at the time of Lamkin's offense.   The legislative history shows that the legislature 

initially considered prohibiting a court from suspending the imposition of sentence for 
"a crime against a person or arson in the first degree."7          Ultimately, the legislature passed 

legislation which permitted a trial court to grant a suspended imposition of sentence for 

a   person    convicted     of  misdemeanor       assault   but   which    precluded     suspending      the 
imposition of sentence for anyone convicted   of felony assault.8                  Assault in the third 

degree, the offense for which Lamkin was convicted, is a class C felony.                     It therefore 

appears      clear,   from     both   the    legislative    history    and    the   plain   language      of 

AS 12.55.085(f), that the legislature intended to prohibit a court from suspending the 

imposition of sentence of a person convicted of assault in the third degree. 

                 We     now    turn  to  the   legislative   history    of  the   2005    amendment       of 

AS 12.55.125(e)(1). In response to the United States Supreme Court decision in Blakely 

v. Washington, the legislature modified the sentencing provisions of the Alaska Criminal 
Code to modify the sentencing structure from presumptive terms to presumptive ranges.9 

According       to  the  Minutes     of  the  House     Judiciary   Committee,      the   amendment       to 

AS 12.55.125(e)(1) was intended "to maintain the court's ability to impose a Suspended 

Imposition of Sentence (SIS) for a first felony offender who commits an eligible C ... 

felony.      The   bill   was   not   intended   to   make   a   change   in   current   SIS   practice;   the 
amendments should restore the status quo [from previous drafts]."10 

        7    S.B. 264, 19th Leg. (Feb. 7, 1996). 

        8   C.S.S.B. 264, 19th Leg., 2d Sess. (1996). 

        9   Ch. 2,  1, SLA 2005; 2005 Senate Journal 102-103. 

        10  Minutes of the House Judiciary Committee, S.B. 56, 2:49:52 PM, (Jan. 31, 2005) 

(emphasis added); see also Minutes of the House Finance Committee, S.B. 56 1:43:03 PM (Feb. 
16, 2005); versions SB0056B, SB0056C, SB0056D of S.B. 56. 

                                                   - 5 -                                              2287
 

----------------------- Page 6-----------------------

               The legislative history of the two statutes, therefore, supports the conclusion 

that, in passing the 2005 amendment to AS 12.55.125(e)(1), the legislature was fully 

aware of the provisions of AS 12.55.085(f), which restricted a court's ability to suspend 

imposition     of  sentence,  and   that  the  legislature  did  not  intend   to  modify   those 

restrictions. 

               Conclusion 

               The judgment of the superior court is AFFIRMED. 

                                              - 6 -                                         2287
 
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