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Municipality of Anchorage v. Brooks (4/14/2017) ap-2547

Municipality of Anchorage v. Brooks (4/14/2017) ap-2547

                                                                                           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                                                                   



MUNICIPALITY  OF  ANCHORAGE,  

                                                                                                                                                                     

                                                                                                                     Court of Appeals No. A-12772  

                                                                                                                                                                                     

                                                              Petitioner,                                         Trial Court No. 3AN-16-5597 CR  



                                              v.  

                                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                                      

MARK  ANTHONY  BROOKS,  



                                                              Respondent.                                                No. 2547 - April  14, 2017  

                                                                                                                                                                           



                               Petition  for  Review  from  the  District  Court,  Third  Judicial  

                                                                                                                                                       

                               District, Anchorage, Douglas Kossler, Judge.  

                                                                                                                    



                               Appearances:  Daniel E. Doty, Assistant Municipal Prosecutor,  

                                                                                                                                                

                               and William Falsey,  Municipal  Attorney,  Anchorage,  for  the  

                                                                                                                                                                  

                               Petitioner.  Shaul  L. Goldberg, Denali Law Group, Anchorage,  

                                                                                                                                                 

                               for the Respondent.  

                                                                            



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

                                                                                                                                                     

                               Superior Court Judge.*  

                                                                                  



                                             

                               Judge MANNHEIMER.  



                               This past year, the Alaska Legislature enacted SLA 2016, chapter 36 -                                                                                             



popularly known as "Senate Bill 91" - which effected a wide-ranging revision of our                                                                                                            



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



Constitution and Administrative Rule 24(d).                                       


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

criminal statutes.                    One of the provisions of this law modified the sentencing range for                                                                     



class A misdemeanors.                             



                            Previously,   the   statute   governing   misdemeanor   sentencing   provided   a  



penalty of up to 1 year's imprisonment for all persons convicted of a class A misde-                                                                                  



meanor.   Now, however, the maximum penalty for a class A misdemeanor is 30 days'                                                                                        



imprisonment unless the defendant's case                                                  meets   one or more of the criteria listed in                                         



                                           1  

AS 12.55.135(a)(1).                            



                            In the present case,  we  are  asked to interpret one of those criteria -  

                                                                                                                                                                               



subsection (1)(C) of AS 12.55.135(a) - which declares that the maximum penalty for  

                                                                                                                                                                              



a class A misdemeanor is 1 year's imprisonment if "[the] defendant has past criminal  

                                                                                                                                                                    



convictions for conduct violative of criminal laws ... similar in nature to the offense for  

                                                                                                                                                                              



which the defendant is being sentenced".  

                                                                                         



                            The  defendant in this case, Mark Anthony Brooks, was charged by the  

                                                                                                                                                                              



Municipality of Anchorage with operating a motor vehicle under the influence.  He has  

                                                                                                                                                                             



one prior conviction for this offense.  At Brooks's change-of-plea hearing, the question  

                                                                                                                                                                   



arose  whether  Brooks  faces  a  maximum  sentence  of  1  year's  imprisonment  under  

                                                                                                                                                                        



subsection (1)(C) - i.e., the subsection quoted in the preceding paragraph.  

                                                                                                                                                              



                            The district court ruled that Brooks is not covered by subsection (1)(C), and  

                                                                                                                                                                             



that his maximum sentence is therefore 30 days.  

                                                                                                      



                            The district court based this ruling on the fact that subsection (1)(C) speaks  

                                                                                                                                                                       



of "convictions" in the plural.                                     The court acknowledged that Alaska law contains a  

                                                                                                                                                                                  



provision which declares that, when a court interprets a statute, the court should assume  

                                                                                                                                                                     



that the singular form of nouns includes the plural, and that the plural form  of nouns  

                                                                                                                                                                       



       1      See  SLA 2016, ch. 36,  91.                             



                                                                                      - 2 -                                                                                2547
  


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

                                                                                                                                 

includes the singular.  See AS 01.10.050(b):  "Words in the singular number include the  



                                                                              

plural, and words in the plural number include the singular."  



                                                                                                                                 

                     In the present case, however, the district court concluded that it should not  



                                                                                                                           

follow this rule of construction when interpreting AS 12.55.135(a)(1)(C).  The district  



                                                                                                                            

court  declared that the "plain, ordinary meaning" of the word "convictions" is "more  



                                                                                                                              

than one conviction."  The court also declared that the Municipality had failed to offer  



                                                                                                                                 

any legislative history affirmatively proving that the Alaska Legislature intended the  



                                                                                                                                 

word "convictions"  to be interpreted in the singular as well as the plural.   Thus, the  



                                                                                                                                

district court concluded, the category of defendants with prior "convictions" does not  



                                                                                          

encompass defendants who have only a single conviction.  



                                                                                                              

                     We conclude that the district court's decision is incorrect.  



                                                                                                                         

                     First, we disagree with the district court that the plain or ordinary meaning  



                                                                                                                               

of the word "convictions" is strictly limited to "two or more convictions",  and that  



                                                                                                                        

people understand this word to exclude a single conviction.  For example, we seriously  



                                                                                                                              

doubt  that  any  judge  who  asked  a  defense  attorney,  "Does  your  client  have  prior  



                                                                                                                         

convictions?" would have much patience with an attorney who answered this question  



                                                                                                          

"No", if the attorney knew that their client had one prior conviction.  



                                                                                                                                

                     The converse is also true.  Consider, for example, a sentencing statute that  



         

said:  



                       

                                                                                                               

                               The maximum penalty for a class A misdemeanor is  

                                                                                                               

                     30 days' imprisonment, but the maximum penalty is 1 year if  

                                                                                                       

                     the defendant has a prior conviction for the same or a similar  

                                

                     crime.  



                                                                                                                      

No  appellate  court  would  interpret  such  a  statute  as  providing a  1-year  maximum  



                                                                                                                       

sentence for only those defendants who have precisely  one prior conviction.  



                                                               - 3 -                                                          2547
  


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

                                                                                                                           

                     Second, because our legislature has enacted AS 01.10.050(b) - the statute  



                                                                                                                               

that  says  "words  in  the  plural  number  include  the  singular"  -  it  was  not  the  



                                                                                                                         

Municipality's burden  to show that the legislative history of AS 12.55.135(a) offered  



                                                                                                                          

some  affirmative  reason  to  think  that  the  word  "convictions"  included  a  single  



                                                                                                                              

conviction.  Rather, the burden of persuasion was on the party (here, the defendant) who  



                                                                                                                                  

wanted to limit the meaning of "convictions" so that it excluded a single conviction.  



                                                                                                                           

                     See Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 435 (Minn. 2009),  



                                                                                                                                  

where the Minnesota Supreme Court considered a statute that is essentially identical to  



                                                                                                                          

our AS 01.10.050(b).                 The Minnesota court held that courts must apply the default  



                                                                                                                                 

"singular/plural" rule of construction even when there is no affirmative indication of  



                                                                                                                               

ambiguity in the wording of the statute to be construed, unless the results of applying this  



                                                                                                                                 

default  rule  would  be  "inconsistent  with  the  manifest  intent  of  the  legislature,  or  



                                                              

repugnant to the context of the statute."  



                                                                                                                 

                    Brooks,  therefore,  was the party who bore the burden of affirmatively  



                                                                                                                              

showing that, if the word "convictions" were construed to include defendants with only  



                                                                                                                         

one conviction, this would be inconsistent with the Alaska Legislature's intent.  Brooks  



                                          

failed to meet that burden.  



                                                                                                                               

                    Indeed,  SLA  2016  chapter  36  contains  several  provisions  where  the  



                                                                                                                                

legislators used the plural form of a noun when they obviously  meant to include the  



                                                                                                                                 

singular.        For  instance, Section 2 of the session law enacted an amended version of  



                                                                                                                    

AS 04.16.160(a), which declares that a person "may not purchase alcoholic beverages"  



                                                                                                                                 

if  the person has been ordered to refrain from consuming alcohol as a condition of  



                                                                                                                                 

probation or parole.  And Section 59 of the session law enacted an amended version of  



                                                                                                                                 

AS 12.30.011(i), which declares that a court must consider  a  defendant's "record of  



                                                                              

convictions" when setting pre-trial bail conditions.  



                                                               - 4 -                                                          2547
  


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

                                 We   also note that, during a House Judiciary Committee hearing held on                                                                                                         



April 11, 2016 (a hearing at which the committee reviewed a newly amended version of                                                                                                                              



Senate Bill91),                       the Committee discussed the subject of misdemeanor sentencing. During    



this discussion, a member of Senator John Coghill's staff (Senator Coghill was the lead                                                                                                                      



sponsor of                   SB   91) told the House committee that, under the Senate bill, there was a                                                                                                             



30-day ceiling on sentences for first-offense misdemeanor assaults, but that "any crime                                                                                                                   



                                                                                                                                                                                2  

that is a repeat conviction can be sentenced outside the 30-day range".                                                                                                             



                                 For these reasons, we conclude that Brooks failed to show that AS 12.55.- 

                                                                                                                                                                                                      



 135(a)(1)(C) should be interpreted at odds with the normal rule of statutory construction  

                                                                                                                                                                                         



codified  in  AS 01.10.050(b) - the rule that "words in the plural number include the  

                                                                                                                                                                                                               



singular".  

                         



                                 The district court offered one final rationale for construing "convictions"  

                                                                                                                                                                                      



to exclude a single conviction.  The court relied on the rule of lenity - the principle that  

                                                                                                                                                                                                              



ambiguous penal statutes should be construed against the government.  But as this Court  

                                                                                                                                                                                                         



explained in DeNardo v. State, "this rule of lenity or strict construction comes into play  

                                                                                                                                                                                                             



only when, after employing normal methods of statutory construction, the legislature's  

                                                                                                                                                                                          



intent cannot be ascertained or remains ambiguous."  819 P.2d 903, 907 (Alaska App.  

                                                                                                                                                                                                           



 1991).  

                   



                                 Criminal   statutes   are   not   unresolvably   ambiguous                                                                                    merely   because  

                                                                                                                                                                                                 



reasonable                        people                 might,               in         good              faith,             debate                 their            meaning                    or         their  

                                                                                                                                                                                                        

                 3   Rather, the question is "whether the statute's meaning is unresolvably confused  

scope.                                                                                                                                                                                           



or ambiguous after it has been subjected to legal analysis [through] study of the statute's  

                                                                                                                                                                                                   



        2        Minutes of the House Judiciary Committee, April 11, 2016 @ 1:20:18.                                                                                                      



        3  

                                                                                   

                DeNardo , 819 P.2d at 908.  



                                                                                                      - 5 -                                                                                                  2547
  


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

wording, examination of its legislative history, and reference to other relevant statutes                                                           



                               4  

and case law[.]"                   



                         Nor must criminal statutes be given the narrowest meaning allowed by their  

                                                                                                                                                          



                  5  

language.                                                                                                                             

                       Rather, criminal statutes should be given a reasonable  or common-sense  



                                                                                                                  6  

                                                                                              

construction, consonant with the objectives of the legislature.  



                         In the present case, for the reasons explained above, we conclude that the  

                                                                                                                                                            



legislature's intention can be ascertained:  AS 12.55.135(a)(1)(C) was intended to apply  

                                                                                                                                                        



to defendants who have one or more prior convictions "for conduct violative of criminal  

                                                                                                                                                   



laws ... similar in nature to the offense for which the defendant is being sentenced".  

                                                                                                                                                             



                         The decision of the district  court is REVERSED.   Because of his prior  

                                                                                                                                                         



conviction, Brooks faces a maximum penalty of 1 year's imprisonment for his current  

                                                                                                                                                    



offense.  

                 



      4     Ibid.  (emphasis in the original).                        



      5      Grant v. State, 379 P.3d 993, 995-96 (Alaska App. 2016), quoting State v. Jones, 750  

                                                                                                                                                           

P.2d 828, 831 (Alaska App. 1988).  

                                                               



      6      Grant, 379 P.3d at 996;Jones , 750 P.2d at 831; Belarde v. Anchorage , 634 P.2d 567,  

                                                                                                                                                          

568 (Alaska App. 1981).  

                                             



                                                                             - 6 -                                                                        2547
  

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