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State v. Simile (2/8/2019) ap-2634

State v. Simile (2/8/2019) ap-2634

                                                                                           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                                                                    



STATE  OF  ALASKA,  

                                                                                                                                                                     

                                                                                                                     Court of Appeals No. A-13315  

                                                                                                                                                                                    

                                                              Petitioner,                                           Trial Court No. 3PA-10-273 CR  



                                              v.  

                                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                                      

JEREMY  D.  SIMILE,  



                                                              Respondent.                                             No. 2634 - February 8, 2019  

                                                                                                                                                                              



                               Petition  for  Review  from  the  Superior  Court,  First  Judicial  

                                                                                                                                                       

                               District, Juneau, Amy Mead, Judge.  

                                                                                                              



                               Appearances: Bailey J. Woolfstead, Assistant District Attorney,  

                                                                                                                                                     

                               Juneau, and Jahna Lindemuth, Attorney General, Juneau, for the  

                                                                                                                                                                   

                               Petitioner.  Frank Singh III, Assistant Public Defender, Juneau,  

                                                                                                                                                         

                               and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                                                                                                                                                                 

                               Respondent.  

                                                            



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

                                                                                                                                              

                               Judges.  

                                                 



                               Judge MANNHEIMER.  

                                                                                    



                               The State of Alaska has                                   petitioned us to clarify the provisions of newly                                                 



amended AS 12.55.110 - the statute that governs a court's sentencing authority over                                                                                                          



defendants who receive a wholly or partially suspended                                                                                sentence and are placed on                                 



probation, if the court later finds that the defendant violated their probation.                                                                                               


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

                                                                                                                                

                    In 2016,  the legislature amended this statute,  placing new limits  on the  



                                                                                                                                  

amount  of  suspended  jail time  that  a  court  can  impose  when  the  court  revokes  a  



                                                                                                                            

defendant's probation.  See SLA 2016, ch. 36,  84 (effective January 1, 2017).  



                                                                                                                                

                    Under the new version of AS 12.55.110, some violations of probation are  



                                                                                                                            

now classified as "technical violations".  This term, which is defined in subsection (h)(2)  



                                                                                                                         

of the statute, refers to any violation of probation that neither constitutes a new criminal  



                                                                                                                 

offense nor a failure to complete treatment for sex offenders or batterers.  



                                                                                                                     

                     Subsections (c) and (d)  of AS 12.55.110 now limit a court's sentencing  



                                                                                                                                 

authority in instances where a defendant has committed  only  a technical violation of  



                                                                                                                       

probation.  These two provisions of the statute draw a distinction between (1) technical  



                                                                                                                      

violations of probation that qualify as "absconding" and (2) all other technical violations  



                      

of probation.  



                                                                                                                        

                    We  have  placed  the  word  "absconding"  in  quotation  marks  because  



                                                                                                                          

subsection (h)(1) of AS 12.55.110 defines this word in a non-standard way.  As defined  



                                                                                                                                  

in subsection (h)(1),  a probationer "absconds" if the probationer fails  to report to a  



                                                                                                                             

probation officer within five working days after their release from custody upon their  



                                                                                                                                   

completion of an active term of imprisonment, or if the probationer fails to attend a  



                                                                                                                                

scheduled meeting with a probation  officer and then fails to make contact with the  



                                                                                   

probation officer within 30 days following the missed meeting.  



                                                                                                                       

                     Subsection (d) of AS 12.55.110 declares that if the defendant's technical  



                                                                                                                             

violation of probation is an act of "absconding", then the court may not impose more  



                                                                                 

than 30 days of the defendant's suspended jail time.  



                                                                                                                       

                     Subsection (c) of AS 12.55.110 declares that court's sentencing authority  



                                                                                                                       

is  even  more  circumscribed  if  the  defendant's  probation  is  revoked  for  a  technical  



                                                                                                                     

violation that does not include "absconding".  For these less serious technical violations,  



                                                                         

the sentencing court can impose no more than:  



                                                               - 2 -                                                          2634
  


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

                                                                                        

          (1) three days' imprisonment for a first probation revocation;  



                                                                                                                    

          (2) five days' imprisonment for the second probation revocation; or  



                                                                                                            

          (3) ten days' imprisonment for the third probation revocation.  



                                                                                                                                

However, for a fourth or subsequent technicalviolation, AS 12.55.110(c)(4) declares that  



                                                                                                                                  

there is no limit on the court's sentencing authority.  The court can impose any or all of  



                                                                         

the defendant's remaining suspended jail time.  



                                                                                                                        

                     In the present case, the State petitioned to revoke the defendant's probation  



                                                                                                                     

based on two separate allegations:                        an  allegation that the defendant had committed  



                                                                                                                          

absconding,  and  an  allegation  that  the  defendant  had  committed  a  separate  fourth  



                                                   

technical violation of probation.  



                                                                                                                                 

                     Because these two allegations were presented to the sentencing court in the  



                                                                                                                     

same petition to revoke probation, the question arose whether the court's  sentencing  



                                                                                                                                

authority  was  governed  by  subsection  (d),  the  provision  that  limits  sentences  for  



                                                                                                                               

absconding to 30 days' imprisonment, or instead by subsection (c), the provision that  



                                                                                                                              

grants  the  court unrestricted sentencing authority if the defendant is found to have  



                                                                                                               

committed a fourth or subsequent technical violation of their probation.  



                                                                                                                                 

                     The superior  court ruled that its sentencing authority was limited to the  



                                                                                                                    

30 days specified in subsection (d) as the upper sentencing limit for an act of absconding.  



                                                                 

We conclude that this ruling is mistaken.  



                                                                                                                                

                     First,  it  is  clear  from  the  structure  of  subsections  (c)  and  (d)  that  the  



                                                                                                                                       

legislature  viewed the act of absconding as an aggravated type of technical violation.  



                                                                                                                            

Even  though  a  court's  sentencing authority  is  normally  limited  to  just  a  few  days'  



                                                                                                                                 

imprisonment for a first, second, or even a third technical violation  of probation, the  



                                                                                                                        

legislature gave courts the authority to impose up to 30 days' imprisonment in instances  



                                                                                                                                   

where that first, second, or third technical violation constituted an act of absconding.  



                                                               - 3 -                                                          2634
  


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

                                                                                                                            

                    But the legislature also declared that when the defendant commits a fourth  



                                                                                                                                 

or subsequent technical violation of probation, there should be no special constraints on  



                                                                                                                              

the court's sentencing authority.  In these circumstances, the legislature wanted to give  



                                                                                                                    

courts  full  authority  to  impose  any  portion,  or  all,  of  the  defendant's  remaining  



                                 

suspended jail time.  



                                                                                                                                

                    This policy would be defeated if, in cases where the petition to revoke the  



                                                                                                                         

defendant's  probation  included  an  additional  allegation  of  absconding,  the  court's  



                                                                      

sentencing authority was capped at 30 days.  



                                                                                                                                  

                    Moreover, imposing a 30-day cap on the court's sentencing authority in  



                                                                                                                                

these circumstances would stand the legislature's classification system on its head.  As  



                                                                                                                    

we have explained, the legislature intended for absconding to be treated as an aggravated  



                                                                                                                          

type of technical violation - a circumstance that significantly  increases the court's  



                                                                                                                                

sentencing authority beyond the authority that the court would otherwise have when the  



                                                                                                                    

court sentenced a defendant for a first, second, or third technical violation.  



                                                                                                                   

                    But under the superior court's interpretation of the statute, the defendant's  



                                                                                                                               

commission  of  an  act  of  absconding would  be  a  mitigating factor  that  limited  the  



                                                                                                                                   

sentencing court's authority when the defendant's probation was being revoked for a  



                                                                                                                               

fourth or subsequent technical violation.                         This result is simply inconsistent with  the  



                             

legislature's aims.  



                                                                                                                           

                    We also note that the superior court's interpretation of the statute would  



                                                                                                                             

almost certainly lead to the elevation of form over substance.  If, as the superior court  



                                                                                                                                 

ruled, the addition of an absconding allegation would operate to place a 30-day limit on  



                                                                                                                                

a defendant's sentence for a fourth or subsequent technical violation of probation, the  



                                                                                                                                

State  could  simply  refrain  from  adding the  absconding allegation  to  its  petition  -  



                                                                                                                    

adopting the strategy of waiting to apprise the court of the defendant's act of absconding  



                                                               - 4 -                                                          2634
  


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

                                                                                                                            

until the time came to argue what sentence the defendant should receive for the other  



                                  

technical violation(s).  



                                                                                                                               

                    For these reasons,  we GRANT  the State's petition for review and we  



                                                                                                                                  

REVERSE the ruling of the superior court.   We hold that when the court  revokes a  



                                                                                                                

defendant's probation for a fourth or subsequent technical violation, AS 12.55.110(d)  



                                                                                                                         

does not limit the sentencing court's authority even when the State's petition to revoke  



                                                                                        

probation contains an additional allegation of absconding.  



                                                              - 5 -                                                          2634
  

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