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Sapp v. State (9/2/2016) ap-2516

Sapp v. State (9/2/2016) ap-2516

                                                                                             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@ akcourts.us  



                                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                      



BARRY  BERNARD  SAPP  JR.,  

                                                                                                                                                                         

                                                                                                                        Court of Appeals No. A-11755  

                                                                                                                                                                                        

                                                               Appellant,                                             Trial Court No. 3AN-13-402 CR  



                                               v.  

                                                                                                                                       O  P  I  N  I  O  N  

                                                                                                                                                                          

STATE  OF  ALASKA,  



                                                               Appellee.                                               No. 2516 - September 2, 2016  

                                                                                                                                                                                    



                               Appeal   from  the   Superior   Court,  Third  Judicial                                                                    District,  

                                                                                                                                                        

                               Anchorage, Michael L. Wolverton, Judge.  

                                                                                                               



                               Appearances:                       Callie Patton Kim, Assistant Public Defender,  

                                                                                                                                                       

                                and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  

                                                                                                                                                                    

                               Appellant.                  Eric  A.  Ringsmuth,  Assistant  Attorney  General,  

                                                                                                                                                         

                                Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                                                                                                                                                         

                               Attorney General, Juneau, for the Appellee.  

                                                                                                                                  



                                Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                                         

                                Superior Court Judge.*  

                                                                                    



                                              

                                Judge MANNHEIMER.  



                                One morning in January 2013, Barry Bernard Sapp Jr. dropped his wife off                                                                                              



at a downtown Anchorage office of the Alaska Department of Corrections.                                                                                                            



        *       Sitting   by    assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                                         


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

                                                  While Sapp was sitting in his car in front of the office, he was approached                                                                                                                                                          



by a probation officer.                                                              This probation officer (who was not supervising Sapp) told him,                                                                                                                                                             



"Mr. Sapp, I'd like you to come [into] the office for [a] conversation."                                                                                                                                                                                                  



                                                  Sapp told the probation officer, "Okay", and he began to maneuver his car                                                                                                                                                                                            



as if to park it on the street near the office.                                                                                                             But then Sapp activated the locks on his car                                                                                                              



doors.   The probation officer tried fruitlessly to pull open the door handle, and then he                                                                                                                                                                                                                              



summoned several other Corrections staff.                                                                                                                       The Corrections staff stood around Sapp's                                                                                               



car and directed him to pull over and park the car.                                                                                                                                          



                                                  Instead, Sapp "peel[ed] out" and drove away at high speed - fishtailing,                                                                                                                                                                  



weaving through traffic, and ignoring traffic signals.                                                                                                                                              He collided with another vehicle,                                                                



and then he drove off without stopping.                                                                                                               



                                                  For these actions, Sapp was convicted of three crimes: failing to stop at the                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                    1      In  

direction of a peace officer, reckless driving, and leaving the scene of an accident.                                                                                                                                                                                                                                    



this appeal, Sapp challenges only one of these convictions:  his conviction for failing to  

                                                                                                                                                                                                                                                                                                                          



stop at the direction of a peace officer.  

                                                                                                                                                  



                                                  Sapp concedes that the probation officer directed him to park his car and  

                                                                                                                                                                                                                                                                                                                     



come into the Corrections office for a conversation, and that he drove away instead of  

                                                                                                                                                                                                                                                                                                                          



complying with the probation officer's directive.  But the statute Sapp was convicted of  

                                                                                                                                                                                                                                                                                                                          



violating - AS 28.35.182 - requires proof that a driver "knowingly fail[ed] to stop as  

                                                                                                                                                                                                                                                                                                                          



soon as [was] practicaland ... reasonably safe ... under the circumstances when requested  

                                                                                                                                                                                                                                                                                               



or signaled to do so by a peace officer."  

                                                                                                                                                      



                                                  Sapp argues that we should reverse his conviction for failing to stop at the  

                                                                                                                                                                                                                                                                                                                      



direction of a peace officer because the probation officer who directed him to park his  

                                                                                                                                                                                                                                                                                                                       



             1           AS 28.35.182(a), AS 28.35.400, and AS 28.35.050(b), respectively.                                                                                                                                                                                



                                                                                                                                                         - 2 -                                                                                                                                                     2516
  


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

car was not a "peace officer" for purposes of this statute. As we are about to explain, we                                                                                                                                                                                                                                                                                                                                                       



agree with Sapp for two reasons.                                                                                               



                                    The definition of "peace officer" codified in AS 01.10.060(7) governs our                                                                                                                                                                                                                                                                                                

                                   interpretation of AS 28.35.182, and                                                                                                                                                              probation officers are not "peace                                                                                                                  

                                   officers" under that definition                                                                           



                                                                      AS 01.10.060 contains various definitions that apply                                                                                                                                                                                                                                  throughout all "the                                                           



laws of [this] state" - in other words, throughout all of the Alaska Statutes - "unless                                                                                                                                                                                                                                                                                                                                   



the context otherwise requires".                                                                                                                                       



                                                                      One of the definitions codified in AS 01.10.060 is the definition of "peace                                                                                                                                                                                                                                                                            



officer".   According to AS 01.10.060(7), "peace officer" means:                                                                                                                                                                                                                                        



                                                                       

                                                                                                         (A)  an officer of the state troopers;                                                                                                                                                 

                                                                                                         (B)  a member of the police force of a municipality;                                                                                                                                                                                                                      

                                                                                                         (C)  a village public safety officer;                                                                                                

                                                                                                         (D)  a regional public safety officer;                                                                                                        

                                                                                                         (E)  a United States marshal or deputy marshal; and                                                                                                                                                                                                  

                                                                                                         (F)  an officer whose duty it is to enforce and preserve                                                                                                                                                                              

                                                                      the public peace[.]                                                                               



                                                                      Probation officers would not be included in this definition unless they were                                                                                                                                                                                                                                                                                      



to fall within the category described in subsection (F):                                                                                                                                                                                                                                            officers "whose duty it is to                                                                                                                    



enforce and preserve the public peace".                                                                                                                                                                          



                                                                      But   in   an   informal Attorney                                                                                                                         General Opinion                                                                              rendered   in   1977   to   the  



executive director of the Police Standards Council (the arm of state government that sets                                                                                                                                                                                                                                                                                                                                                    



 standards   for,   and   certifies,   police   officers,   probation   officers,   parole   officers,   and  

                                                                                                             2  the Alaska Department of Law examined each of the clauses of  

corrections officers),                                                                                                                                                                                                                                                                                                                                                                                                                               



                 2                 See  AS 18.65.220.                                                                            



                                                                                                                                                                                                                      - 3 -                                                                                                                                                                                                                  2516
  


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

AS 01.10.060(7) -which                                                  was numbered AS 01.10.060(6) at the time -                                                                                     and concluded  



that the definition of "peace officer" codified in this statute "evidences a legislative intent                                                                                                                                  



to include only publicly employed law enforcement officers who have full police duties."                                                                                                                                                           



See  informalAttorney                                       GeneralOpinion                                No. 660-77-036 (September 18, 1977), 1977                                                                                  WL  



22059 at *2.              



                                     Informal Opinion No. 660-77-036 acknowledged that there was potential                                                                                                              



ambiguity in the wording of subsection (F), which speaks of all officers "whose duty it                                                                                                                                                     



is to enforce and preserve the public peace".                                                                             But relying upon the statutory construction                                         



principle   of   ejusdem   generis   -   that   is,   the   principle   of   interpreting any                                                                                                                       individual  



member of a list by reference to the other members of the list, so as to preserve                                                                                                                                                     the  

                                                                            3  - the Department of Law concluded that the wording of  

common unifying principle                                                                                                                                                                                                                



subsection (F) was limited to "publicly employed law enforcement officers who have full  

                                                                                                                                                                                                                                       



police responsibility and who spend substantially all of their working hours performing  

                                                                                                                                                                                                                 



these [police] functions."  Ibid.  

                                                                                         



                                     In  the  nearly  40  years  since  the  Department  of  Law  rendered  this  

                                                                                                                                                                                                                                    



interpretation of AS 01.10.060(7), the legislature has made slight stylistic changes to the  

                                                                                                                                                                                                                                        



wording of subsection (F), but it has not amended the substance of that clause of the  

                                                                                                                                                                                                                                      



statute.                   We  therefore conclude that the legislature has adopted or acquiesced in the  

                                                                                                                                                                                                                                       



interpretation of AS 01.10.060(7)(F) contained in Informal Opinion 660-77-036.  And  

                                                                                                                                                                                                                                   



under that interpretation, probation officers are not "peace officers".  

                                                                                                                                                                                               



                                     In its brief to this Court, the State suggests that we should not apply the  

                                                                                                                                                                                                                                       



definition of "peace officer" found in AS 01.10.060(7), but rather the definition found  

                                                                                                                                                                                                                                



in subsection (b)(45) of AS 11.81.900.  (AS 11.81.900 is a statute that contains dozens  

                                                                                                                                                                                                                            



of definitions applicable to Title 11 of the Alaska Statutes.)  

                                                                                                                                                                     



         3         See Adamson v. Anchorage                                                 , 333 P.3d 5, 20 (Alaska 2014);                                                     West v. Anchorage                                  , 174   



P.3d 224, 228 (Alaska 2007).                                                     



                                                                                                                  - 4 -                                                                                                              2516
  


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

                                                                                                                                   

                     The  definition  of  "peace  officer"  contained  in  AS  11.81.900(b)(45)  is  



                                                                                                                          

arguably broader than the definition found in AS 01.10.060(7),  because AS 11.81.- 



                                                                                                                                  

900(b)(45) defines "peace  officer" as "a public servant vested by law with a duty to  



                                                                                                                                   

maintain public order or to make arrests, whether the duty extends to all offenses or is  



                                                                                                                          

limited to a specific class of offenses or offenders".  The State contends that this broader  



                                                                                                                             

language includes probation  officers, since probation officers are authorized to arrest  



                                                                                           

probationers for violating the conditions of their probation.  



                                                                                                                       

                     We need not decide whether the State is correct in asserting that probation  



                                                                                                          

officers fall within the definition of  "peace  officer" codified in AS 11.81.900(b)(45),  



                                                                                                                          

because that definition does not apply to the interpretation of "peace officer" in statutes  



                            

outside Title 11.  



                                                                                                                            

                     AS 11.81.900(b) begins with the words, "In this title [i.e., Title 11], unless  



                                                                                                                                 

otherwise specified or unless the context requires otherwise ... ".  Thus, according to the  



                                                                                                                                

words of the statute,  the definitions contained in AS 11.81.900(b) apply only to the  



                                                                                                                     

provisions of Title 11.   Here, the State is asking us to employ one of those definitions  



                                                                        

when interpreting a crime codified in Title 28.  



                                                                                                                                   

                     According to the State,  it makes sense to apply the definitions found in  



                                                                                                                          

AS 11.81.900(b) to all of Alaska's criminal statutes, regardless of whether those criminal  



                                                                                                                         

statutes are contained in Title 11 or Title 28 or some other title of the statutes.  



                                                                                                                           

                     If Alaska law contained no other definition of "peace officer", the State's  



                                                                                                                       

argument might have more force.  But our legislature has codified a separate definition  



                                                                                                                       

of "peace officer" in Title 1, and the legislature has expressly declared that this definition  



                                                                                                                          

applies throughout the Alaska Statutes "unless the context otherwise requires".  



                                                                                                                                

                     Because  "peace  officer"  is  defined  in  AS  01.10.060,  and  because  the  



                                                                                                                             

legislature has declared that the definitions contained  in AS 01.10.060 apply to every  



                                                                                                                                 

Alaska statute unless there is an affirmative reason to conclude otherwise, we reject the  



                                                               - 5 -                                                          2516
  


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

                                                                                                                         

 State's suggestion that we should use Title 11's differing definition when we interpret  



                                                                                                                          

a statute found in Title 28.  The definition found in AS 01.10.060 governs our inquiry.  



                                                                                                                                

                     And  as we have already explained, we conclude that the legislature  has  



                                                                                                                        

adopted or acquiesced in the definition of "peace officer" set forth in informal Attorney  



                                                                                                                                      

General Opinion No. 660-77-036 - a definition that does not include probation officers.  



                                                                                                                                

                     Accordingly, Sapp did not violate AS 28.35.182 when he refused to pull  



                                                                              

his car over at the direction of a probation officer.  



                                                                                                                    

           Thequestion of whether AS 28.35.182 requires the State to prove that when  

                                                                                                                    

           a peace officer directs a motorist to pull over, the peace officer must have  

                                                                                          

           a constitutionally adequate justification for doing so  



                                                                                                 

                     This case raises one other significant legal issue.  



                                                                                                                           

                     According to the evidence presented at Sapp's trial, the probation officer  



                                                                                                                              

who directed Sapp to pull over and park his car had no reason for doing so, apart from  



                                                                                                                                 

his desire "to talk" or "to speak" to Sapp about some unspecified topic. Thus, even if we  



                                                                                                                           

had concluded that probation officers were "peace officers" for purposes of AS 28.35.- 



                                                                                                                        

 182, the facts of Sapp's case would raise a significant constitutional question.  



                                                                                                                                 

                     As we explained earlier, Sapp was convicted of violating AS 28.35.182 for  



                                                                                                                             

knowingly failing to stop his vehicle "when requested or signaled to do so by a peace  



                                                                                                                         

officer".   At Sapp's trial, no evidence was presented regarding the probation officer's  



                                                                                                                                  

justification for asking Sapp to stop, other than the probation officer's desire to talk to  



                                                                                                                      

him.  The charge against Sapp was apparently premised on the idea that AS 28.35.182  



                                                                                                                                   

makes it a crime for a motorist to fail to honor a peace officer's request to stop even if  



                                                                                                                                       

the officer lacks any constitutionally valid justification for directing the motorist to stop.  



                                                               - 6 -                                                          2516
  


----------------------- Page 7-----------------------

                                                                                                                          

                    If  AS  28.35.182 were construed in this fashion,  it would raise serious  



                                                                                                                                  

questions under the Fourth Amendment to the federal constitution and under Article I,  



                                                           

Section 14 of the Alaska constitution.  



                                                                                                                          

                    We note that, until1998, AS 28.35.182 declared that motorists were obliged  



                                                                                                                                

to stop "if requested or signaled to do so for a lawful purpose  by a peace officer".  See  



                                                                                                                         

former AS 28.35.182(a) (pre-1998 version).  The former version of the statute defined  



                                                                                                                           

"lawful purpose" as "making an arrest or issuing a citation, preventing personal injury  



                                                                                                                           

or property damage in an emergency, and investigating a situation when the peace officer  



                                                                                                                                

has a reasonable suspicion that imminent public danger exists or that serious harm has  



                                                                                                                

recently occurred".  See former AS 28.35.182(d)(1) (pre-1998 version).  



                                                                                                                                  

                    This  requirement  of  "lawful  purpose"  was  apparently  intended  as  a  



                                                                                                                    

safeguard against the possibility that the statute would infringe constitutional protections  



                                                                                                                                

- i.e., to make sure that the statute did not authorize the State to prosecute motorists for  



                                                                           

failing to consent to an unconstitutional seizure.  



                                                                                                                           

                    When  the  legislature  amended  AS  28.35.182  in  1998  (see  SLA 1998,  



                                                                                                                                

ch. 136,  1), the requirement of a "lawful purpose" was removed from the statute, but  



                                                                                                                     

we could find nothing in the related committee minutes to  explain why the legislature  



                          

took this action.  



                                                                                                                                

                    Because we are reversing Sapp's conviction on other grounds, we need not  



                                            

consider this matter further.  



                                                                                                   

          The error in Sapp's sentence for leaving the scene of an accident  



                                                                                                                                

                    Although Sapp's other convictions are  unaffected by our reversal of his  



                                                                                                                                 

conviction for failing to stop at the direction of a peace officer, we note that there is an  



                                                               - 7 -                                                          2516
  


----------------------- Page 8-----------------------

                                                                                                                     

obvious  error  in  Sapp's  sentence  for  leaving  the  scene  of  a  non-injury  accident,  



                             

AS 28.35.050(b).  



                                                                                                                        

                    When the superior court sentenced Sapp for this offense, the court imposed  



                                                                                                                      

a  consecutive  term  of  1  year  to  serve.                      But  the  maximum  sentence  for  violating  



                                                                                                                                 

AS 28.35.050(b) is 90 days' imprisonment.   See AS 28.90.010(b).   See also Walsh v.  



                                                                                                                            

State, 134 P.3d 366, 371 (Alaska App. 2006) (where we discussed this point).  In other  



                                                                                                      

words, Sapp received an illegally severe sentence for this offense.  



                                                                                                                          

                    We accordingly direct the superior court to re-sentence Sapp to a lawful  



                                    

term of imprisonment.  



          Conclusion  



                                                                                                                                 

                    Sapp's conviction for failing to stop at the direction of a peace officer is  



                                                                                                                               

REVERSED.   Additionally, we direct the superior court to re-sentence  Sapp for the  



                                                                                   

offense of leaving the scene of a non-injury accident.  



                                                                                                                             

                    We have not addressed Sapp's claim that his conviction for failing to stop  



                                                                                                                         

at the direction of a peace officer should merge with his conviction for reckless driving,  



                                                                                                                 

because our reversal of Sapp's failure to stop conviction moots this claim.  



                                                                                                                               

                    Because  we  are  remanding Sapp's  case  to  the  superior  court  for  re- 



                                                                                                                     

sentencing  on  Sapp's  conviction  for  leaving  the  scene  of  a  non-injury  accident,  



                                                                                                                                  

we decline to reach Sapp's argument that  the  superior court erred in finding him a  



                                                                                                                                     

"worst offender" for purposes of his reckless driving and leaving the scene convictions.  



                                                                                                               

Sapp  can  ask  the  superior  court  to  reconsider  this  matter  during the  re-sentencing  



                     

proceedings.  



                                                              - 8 -                                                          2516
  

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