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Jason D. Ray v State of Alaska (10/17/2019) ap-2660

Jason D. Ray v State of Alaska (10/17/2019) ap-2660

                                                     NOTICE
 
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JASON D. RAY,  

                                                                    Court of Appeals No. A-12135  

                                    Appellant,                   Trial Court No. 3KO-13-00627 CR  



                           v.  

                                                                            O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                    Appellee.                       No. 2660 - October 17, 2019  



                                    

                  Appeal from the Superior Court, Third Judicial District, Kodiak,  

                  Steve Cole, Judge.  



                  Appearances:  Amanda Harber, Assistant Public Defender, and  

                                      

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                  Stephen  B.  Wallace,  District  Attorney,  Kodiak,  and  Jahna  

                  Lindemuth, Attorney General, Juneau, for the Appellee.  



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

                                                       

                  Superior Court Judge. *  

                                                 



                  Judge  MANNHEIMER,  writing  for  the  Court  on  all  issues  

                  except  the  proper  interpretation  of   AS  12.55.090(f),  and  

                                                                     

                  certifying this last issue to the Alaska Supreme Court.  



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



Constitution and Administrative Rule 24(d).  


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

                                       Judge                  MANNHEIMER,                                            Judge                  SUDDOCK,                                 and              Judge  

                                       ALLARD, each writing separately on the proper interpretation   

                                       of AS 12.55.090(f).  



                                       In December 2013, pursuant to a plea agreement, Jason D. Ray pleaded                                                                                                                          



guilty to theft in the second degree.                                                                        The plea agreement called for Ray to receive a                                                                                              



sentence of 24 months' imprisonment with 20 months suspended (4 months to serve),                                                                                                                                                        



followed by 3 years of probation.                                                                      Ray served his 4 months, and he was released on                                                                                               



probation.    



                                       In the summer of 2014, Ray admitted that he had                                                                                                             violated two of his                             



conditions of probation, and he was adjudicated to have violated two others. Then, at his                                                                                                                                                            



probation revocation disposition hearing, Ray announced that he wished to reject further                                                                                                                                                 



probation.   



                                       In  Brown v. State                               , the Alaska Supreme Court construed Alaska's probation                                                                                  



statutes   as   giving   criminal   defendants   the   right   to   refuse   probation   at   their   initial  



                                                                                                                                                   1  

sentencing, or to later refuse continued probation.                                                                                                     



                                                                                                                                                                                                                                                      

                                       Under Brown, when a defendant who has been on probation decides to  



                                                                                                                                                                                                                           

reject further probation, the sentencing court must then give the defendant a "flat-time"  



                                                                                                                                                                                                                                                  

sentence by imposing some or all of the defendant's remaining suspended jail time and  



                                                                                                                  2  

                                                                                                                                                                                                                     

terminating the defendant's probation.                                                                                  The sentencing judge must not automatically  



                                                                                                                                                                                                                                                      

impose all of the defendant's remaining suspended jail time, but rather must evaluate all  



                                                                                                                                                                                                                                                    

the circumstances of the defendant's case and impose an appropriate sentence under the  



          1        Brown v. State, 559 P.2d 107, 111 n. 13 (Alaska 1977).  



          2         See  Bland v. State, 846 P.2d 815, 818-19 (Alaska App. 1993).  



                                                                                                                       - 2 -                                                                                                                    2660
  


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

 sentencing criteria established by the supreme court in                                   State v. Chaney, 477 P.2d 441,   

443-44 (Alaska 1970), and now codified in AS 12.55.005.                                           3   



                                                                                                                            

                      But in Ray's case, the superior court refused to honor Ray's decision to  



                                                                                                                                           

reject further probation.   Instead, the court imposed a sentence which continued to  



                                                                                                                              

include suspended jail time, and which still left Ray on probation. In fact, the sentencing  



                                                                                                                  

judge extended Ray's term of probation - from 3 years to 5 years.  



                                                                                                                                            

                      The judge sentenced Ray to serve 16 months, which was all but 90 days of  



                                                                                                                                          

Ray's suspended jail time.  The judge then placed Ray on unsupervised probation for  



                                                                                                                                         

 5 years after he completed serving the 16 months in jail.  The only condition of this  



                                                                                       

unsupervised probation was that Ray obey the law.  



                                                                                                                               

                      (The judge's apparent purpose for keeping Ray on unsupervised probation  



                                                                                                                                     

was to allow the court to impose a more severe sentence if Ray committed another felony  



                                                                                                                                 

before his 5 years of probation expired. Under AS 12.55.155(c)(20), if a person commits  



                                                                                                              

a felony while they are on felony probation, this fact allows the sentencing court to  



                                                                                                                               

increase their sentence above the applicable presumptive sentencing range.)  



                                                                                                                                                

                      In this appeal, Ray challenges the superior court's action on two grounds.  



                                                                                                                                       

                      First, Ray contends that the superior court committed error when the court  



                                                                                                                                          

ruled against him on the two contested violations of probation.   Ray argues that the  



                                                                                                                                 

evidence presented at his revocation hearing was insufficient to support the superior  



                                                                                                                                    

court's findings that Ray committed the two contested violations of probation.  



                                                                                                                                       

                      Second, Ray contends that the superior court acted illegally when the court  



                                                                                                                                           

kept Ray on probation after Ray declared that he wished to reject further probation.  



      3    DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997);                                      Bland v. State, 846 P.2d  



 815, 818-19 (Alaska App. 1993).  



                                                                   -  3 -                                                              2660
  


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

                    We  conclude  that  the  evidence  was  sufficient  to  support  the  judge's  

                                                                                                                         



findings that Ray violated the two conditions of probation.   We further reject Ray's  

                                                                                                                            



contention that he had a constitutional right to reject further probation.  

                                                                                                              



                    Butwith regard to whether Ray had a statutory right to reject probation, this  

                                                                                                                                



Court is unable to reach a majority decision - because no two of us are able to agree on  

                                                                                                                                 



the proper interpretation of a probation statute, AS 12.55.090(f).  We therefore certify  

                                                                                



this issue of statutory interpretation to the Alaska Supreme Court. See AS 22.05.015(b).  

                                                                                                                 



          Background facts  

                               



                    Jason Ray lived in Kodiak. In early July 2014, Ray's probation officer, Jill  

                                                                                                                                 



Bunting, issued him a travel permit that allowed Ray to go to Anchorage and reside at  

                                                                                            



the Brother Francis Shelter for one week while he looked for work.  

                                                                                                         



                    In mid-July 2014, Probation Officer Bunting asked the superior court to  

                                                                                                                                  



revoke  Ray's  probation,  alleging  that  Ray  had  violated  several  conditions  of  his  

                                                                                                                                



probation.  Of these various allegations, two are germane to this appeal:  the allegation  

                                                                                                                      



that Ray left the Brother Francis Shelter and went to stay elsewhere without obtaining  



the written permission of his probation officer, and the allegation that Ray consumed  

                                                                                                              



alcohol to excess while he was in Anchorage.  

                                                                         



                    Officer  Bunting  was  the  only  witness  at  Ray's  adjudication  hearing.  

                                                                                                                                      



Bunting testified that Ray violated the conditions of his travel pass by not staying at the  

                                                                                                                                 



Brother Francis Shelter while he was in Anchorage seeking work. Accordingto Bunting,  

                                                                                                                        



shortly after Ray arrived in Anchorage, Ray left several voice messages for her. In these  

                                                                                                                              



voice  messages,  Ray  told  Bunting  that  he  would  be  staying  at  the  Ted  Stevens  

                                                                                                                        



International Airport because he did not want to stay at the Brother Francis Shelter.  

                                                                                                                                  



                                                               - 4 -                                                          2660
  


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

                                                             Bunting also testified that she received a report from the Anchorage Police                                                                                                                                                                                                                                      



Department that the police had responded to a fight in which Ray was purportedly                                                                                                                                                                                                                                                                  



involved.   The police administered a portable breath test to Ray, and the breath-testing                                                                                                                                                                                                                                                 



device registered a blood alcohol level of .121 percent.                                                                                                                                                                                                     



                                                             At the revocation hearing, Ray's attorney argued that Ray had not violated                                                                                                                                                                                                                              



the condition of probation requiring him to notify his probation officer of changes of                                                                                                                                                                                                                                                                                                          



residence, because the Brother Francis Shelter had not been Ray's "residence".                                                                                                                                                                                                                                                                                                     The  



defense attorney contended that the term "residence" implied more permanence than a                                                                                                                                                                                                                                



 short-term lodging.                                                                      



                                                             With   regard  to  the   allegation   of   intoxication,   Ray's   attorney   raised   a  



hearsay objection to Bunting's testimony about the reading of the portable breath test                                                                                                                                                                                                                                                                                                   



device, since Bunting had no personal knowledge of that reading, and she was only                                                                                                                                                                                                                                                                                                   



relaying what she had been told by the Anchorage police.                                                                                                                                                                                                                          The judge overruled this                                                                              



objection, since the hearsay rules do not apply at probation revocation hearings.                                                                                                                                                                                                                                                                                                     See  



Alaska Evidence Rule 101(c)(2).                                                                         



                                                             Later, during the defense attorney's summation to the judge, the attorney                                                                                                                                                 



argued that the judge should place little or no weight on the portable breath test reading,                                                                                                                                                                                                                                                                          



because portable breath-testing devices had not been shown to meet the standard for the                                                                                                                                                                                                                                                                                                     



admissionof scientific evidence established in                                                                                                                                                                 Daubert v. MerrellDowPharmaceuticals                                                                          



                                                                                      4 

and  State v. Coon.                                                                                                                                                                                                                                                                                                                                                                        

                                                                                           The defense attorney further argued that, without the result of the  



                                                                                                                                                                                                                                                                                                                                                                                     

portable  breath  test,  the  State's  evidence  was  insufficient  to  prove  that  Ray  was  



                                                                                                                                                                                                                                   

intoxicated when he was contacted by the police.  



               4              Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125   



L.Ed.2d 469 (1993); State v. Coon, 974 P.2d 386 (Alaska 1999).  



                                                                                                                                                                                           -  5 -                                                                                                                                                                                      2660
  


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

                     The judge concluded that Ray had violated both of the conditions of his  

                                                                                                                                



probation (as well as other conditions of probation that are not at issue in this appeal).  

                                                                                                                                     



                     Then, at Ray's disposition hearing, Ray elected to reject further probation.  

                                                                                                                                     



At that time, Ray had 19 months of suspended jail time remaining on his sentence (less  

                                                                                                                             



the time he had spent in jail awaiting the resolution of the petition to revoke probation).  

                                                                                                                                     



                     Probation Officer Bunting asked the court to impose all of Ray's remaining  

                                                                                                                     



suspended sentence, and to end his probation.   She declared that she did not think  

                                                                                                                            



anything could be achieved by returning Ray to probation.  

                                                                                           



                    Notwithstanding Ray's rejection of probation, and notwithstanding the  

                                                                                                                               



probation officer's endorsement of Ray's request for an end to his probation, the judge  

                                                                                                                            



decided to keep Ray on probation for 5 years after he finished serving his active term of  

                                                                                                                                 



imprisonment.  More specifically, the judge sentenced Ray to 19 months in jail with  

                                                                                                                             



3 months suspended, with probation for 5 years after he got out of jail.  However, the  

                                                                                                               



judge amended Ray's conditions of probation to make the probation unsupervised, with  

                                                                                                                              



the sole condition that Ray obey all laws.  

                                                                  



                     (Although the judge did not explain his decision, the judge was apparently  

                                                                                                                    



influenced by the prosecutor's argument that Ray should be kept on probation so that,  

                                                                                                          



if he committed another felony in the future, his crime would be aggravated under  

                                                                                                                           



AS  12.55.155(c)(20),  which  applies  when  a  defendant  commits  a  felony  while  on  

                                                                                                                                



furlough, parole, or probation from a prior felony conviction.)  

                                                                             



           Why we conclude that the judge properly  found that Ray violated  his  

                                                                                                                     

          conditions of probation  

                                



                     On appeal, Ray renews his claim that neither the Brother Francis Shelter  

                                                                                                                         



nor the Anchorage Airport constituted his "residence", because these were only short- 

                                                                                                                           



                                                              -  6 -                                                         2660
  


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

term lodgings. Ray asserts that, despite his travel to Anchorage, his residence continued                                                                                                                                                                                                                                                            



to be the City of Kodiak (more specifically, the "streets of Kodiak", because Ray was                                                                                                                                                                                                                                                                                         



apparently homeless). Ray also argues that, regardless of where his "residence" was, the                                                                                                                                                                                                                                                                                           



real point of the probation condition was to make sure that his probation officer knew                                                                                                                                                                                                                                                                                 



where he was - and Ray points out that he told his probation officer that he intended                                                                                                                                                                                                   



to stay at the airport.                                                                       



                                                           But the superior court concluded that, despite whatever technical meanings                                                                                                                                                                                                                 



the term "residence" might have, the intent of the probation condition was both (1) to                                                                                                                                                                                                                                                                                



make sure that Bunting knew where Ray was, and (2) to make sure that Ray stayed in the                                                                                                                                                                                                                                                                                             



agreed-upon   place   (i.e.,   the   shelter)   unless   he   had   Bunting's   permission   to   live  



elsewhere. Thecourt                                                                          further found that Ray knew what the probation condition required.   



                                                            This  was a reasonable interpretation of the probation condition, and a                                                                                                                                                                                                                                                      



reasonable conclusion regarding Ray's state of knowledge.                                                                                                                                                                                                                    We therefore uphold the                                                                             

 superior court's ruling.                                                                                5  



                                                                                                                                                                                                                                                                                                                                                                             

                                                           With regard to the finding that Ray was intoxicated in Anchorage, Ray  



                                                                                                                                                                                                                                                                                                                                                                    

claims that the court should not have relied on the result obtained on the portable breath  



                                                                                                                                                                                                                                                                                                                                                           

test device (the "PBT"), because these devices have not been shown to meet the standard  



                                                                                                                                                                                                                                                                                                                                                                                       

for the admission of scientific evidence, and because the prosecutor made no attempt to  



               5              See Joubert v. State                                                               , 926 P.2d 1191, 1193 (Alaska App. 1996) (holding that, because  



the  conditions  of   probation  can  be  "likened  to  a  contract   between  the  court  and  the  

defendant", a court must construe the meaning of a probation condition by "examin[ing] how                                                                                                                                                                                                                          

a  reasonable  person  in  [the  defendant's]  place  would  have  understood  it,  taking  into  

consideration the language of the disputed provision ... and the case law interpreting similar   

provisions").  



                                                                                                                                                                                      -  7 -                                                                                                                                                                                 2660
  


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

lay an evidentiary foundation for this testimony under                                  Daubert v. Merrell Dow Pharma-           



                                                                                                           6  

ceuticals, Inc.        , and    Daubert's  Alaska counterpart,                     State v. Coon         .   



                                                                                                                                          

                      But as we have explained, when Bunting offered testimony concerning the  



                                                                                                                                        

PBT reading, the only objection that Ray's attorney raised was a hearsay objection. This  



                                                                                                                                       

objection had no merit: Alaska Evidence Rule 101(c)(2) states that, apart from the rules  



                                                                                                               

pertaining to evidentiary privilege, the rules of evidence do not apply to probation  



                        

proceedings.  



                                                                

                      It was only later, during summation, that the defense attorney shifted her  



                                                                                                                                         

argument - no longer pressing her original assertion that Bunting's testimony on this  



                                                                                                                                        

point was inadmissible hearsay, but instead asserting that, even if this testimony was  



                                                                                                                                         

admissible, little or no weight should be given to the PBT reading because the State had  



                                                                                     

not laid a Daubert foundation for the PBT device.  



                                                                                                                                            

                      We note that the defense attorney did not frame her Daubert argument as  



                                                                                                                    

a late objection to the admission of Bunting's testimony.  Rather, the defense attorney  



                                                                                                 

argued only that the testimony should be given little or no weight.  



                                                                                                                              

                      Moreover,  because  the  rules  of  evidence  do  not  apply  to  probation  



                                                                                                                                          

revocation hearings, it is unclear whether Ray's attorney could properly object to the  



                                                                                                                                          

PBT  evidence  under  Daubert  and  Coon.                                  Both  Daubert  and  Coon  are  based  on  



                                                                                                                           

interpretations of Evidence Rule 702: Daubert established the foundational requirement  



                                                                                                                                  

for introducing scientific evidence under Federal Evidence Rule 702, and Coon adopted  



                                                                                                                                

the Daubert  test as the foundational requirement for introducing scientific evidence  



                                                                                                                                          

under Alaska Evidence Rule 702. But Alaska Evidence Rule 101(c)(2) declares that the  



                                                                                                                             

rules of evidence (other than the rules of privilege) do not apply to probation revocation  



      6    Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); State v. Coon,  



974 P.2d 386 (Alaska 1999).  



                                                                   -  8 -                                                              2660
  


----------------------- Page 9-----------------------

proceedings.  It is therefore uncertain whether Ray's attorney could properly object to   



the PBT results under                   Daubert  and  Coon.   



                        Even assuming that a                   Daubert-Coon  objection would have been proper,                                



Ray's   attorney   did   not   make   a   contemporaneous   Daubert-Coon   objection   to   the  



admission  of the probation officer's testimony about the PBT result.                                                     Ray thus failed to           



                                                     7  

preserve this issue for appeal.                                                                                                                   

                                                        And Ray does not argue that the judge committed plain  



                                                                                                  

error by failing to hold a Daubert hearing sua sponte.  



                                                                                                                                            

                        In any event, as the judge noted, the PBT result in Ray's case (.12 percent)  



                                                                                                                                                   

was substantially higher than the .08 percent threshold for DUI.  Thus, even if the PBT  



                                                                                                                                                    

reading was only an approximation of Ray's blood alcohol level, the PBT reading was  



                                                                                                                                  

sufficient to support a finding that Ray had consumed alcohol to excess.  



                                                                                                    

                        For these reasons, we find no plain error.  



                                                                                                                            

            Introduction to the question of whether the superior court was authorized  

                                                                                                                                  

            to subject Ray to further probation after Ray expressly rejected further  

           probation  



                                                                                                                                              

                        As we explained in the introductory section of this opinion, the Alaska  



                                                                                                                                                        

Supreme  Court  held  in  Brown  v.  State  that,  under  Alaska's  probation  statutes,  a  



                                                                                                                                                         

defendant has the right to reject probation and demand a "flat-time" sentence - i.e., a  



      7     See Mascenti v. Becker, 237 F.3d 1223, 1230-31 (10th Cir. 2001) (holding that a party  



failed to preserve an objection to expert testimony when the party failed to object to the  

                                                                                                                     

testimony until after the close of the evidence); Christopher v. Cutter Laboratories, 53 F.3d  

                                                        

 1184, 1192 (11th Cir. 1995) (same); Marbled Murrelet v. Babbit , 83 F.3d 1060, 1066-67 (9th  

Cir. 1996) (holding that the failure to raise a Daubert objection to expert testimony waives  

                                                                                                                                               

the issue on appeal);  Clay v. Commonwealth, 291 S.W.3d 210 (Ky. 2008) (holding that a  

                                                                                                                                                         

litigant who fails to request a Daubert hearing fails to preserve the issue for appeal).  



                                                                         -  9 -                                                                   2660
  


----------------------- Page 10-----------------------

 sentence consisting solely of active imprisonment, with no suspended jail time and no                                                     

probation. 8  



                                                                                                                                    

                     WhenRay'sdefenseattorney announced atthedispositionhearing that Ray  



                                                                                                                            

had decided to reject further probation, the sentencing judge responded, "That certainly  



                                                                                                                                    

changes  things."              The  judge  then  questioned  Ray  about  his  understanding  of  the  



                                                                                                                                 

consequences  of  his  choice,  and  about  the  voluntariness  of  Ray's  decision.                                             After  



                                                                                                                            

completing this inquiry, and without objection from the prosecutor, the judge accepted  



                                                                      

Ray's decision to reject further probation.  



                                                                                                                                

                     Nevertheless, as we have explained, the judge did not terminate Ray's  



                                                                                                                           

probation.  Instead, the judge sentenced Ray to serve 5 years on unsupervised probation  



                                                                                                                               

after Ray completed a sentence of 16 months in prison (leaving Ray with a further  



                                             

3 months of suspended jail time).  



                                                                                                                          

                      On appeal, Rayargues that, becauseheexpressly rejectedfurtherprobation,  



                                                                                                                                           

the superior court was barred from imposing a sentence that included more probation.  



                                                                                                                                       

More specifically, Ray argues that criminal defendants have a constitutional right to  



                                                                                                                                     

reject probation - and thus, when Ray made his choice to refuse further probation, the  



                                                                                                                                  

judge was required to simply impose some or all of Ray's remaining suspended jail time,  



                                                                                        

and to release him from further probation supervision.  



                                                                                                                      

                     The  State,  for  its  part,  contends  that  a  2012  amendment  to  Alaska's  



                                                                                                                              

probation  statutes,  AS  12.55.090(f),  prohibits  a  defendant  from  rejecting  further  



                                                                                                                                        

probation if the defendant was initially sentenced under a plea bargain that called for a  



                                                                                                                                      

 specific term of probation.  As we have explained, Ray's plea agreement stated that he  



                                                                                                                        

would receive a 3-year term of probation.  The  State therefore argues that Ray had no  



                                                                          

right to request an early end to his probation.  



      8    Brown v. State, 559 P.2d 107, 111 n. 13 (Alaska 1977).  



                                                                -  10 -                                                           2660
  


----------------------- Page 11-----------------------

                                               As   we   are   about   to   explain,   we   reject   Ray's   argument   that   he   has   a  



constitutional right to reject probation. However, no two members of this Court are able                                                                                                                                                                                                         



to agree on whether Ray still has the                                                                                          statutory  right to reject probation described by our                                                                                                               



supreme court in                                            Brown.    



                                               More specifically, no two members of this Court are able to agree on the                                                                                                                                                                              



proper interpretation of AS 12.55.090(f):                                                                                                              whether, under this statute, defendants in                                                                                                      



Ray's position still have a statutory right to reject probation - and, if they still have this                                                                                                                                                                                                     



right, what rules govern the sentencing court's authority or duty with respect to the                                                                                                                                                                                                               



defendant's final sentence of imprisonment.                                                                                                                 



                                               Because we cannot reach a majority decision on this issue of statutory                                                                                                                                                           



interpretation,   we   certify   this   issue   to   the   Alaska   Supreme    Court  pursuant   to  



AS 22.05.015(b).                                                



                         Why we reject Ray's contention that he has a constitutional right to refuse                                                                                                                                                               

                      further probation   



                                               In support of his contention that criminal defendants have a constitutional                                                                                                                                   



right to refuse probation, Ray cites the Alaska Supreme Court's decision in                                                                                                                                                                                                   Brown v.   



                   9                                                                                                                                                                                            10  

State                                                                                                                                                                                                                                                                                                   

                        as well as this Court's decision in Sweezey v. State.                                                                                                                                            But even though both of  



                                                                                                                                                                                                                                                                               

these decisions affirma probationer's right to refuse probation, neither of these decisions  



                                                                                                                                                                                                                                                                                                   

says that this right is a constitutional right. Instead, both Brown and Sweezey declare that  



                                                                                                                                                                                                                                                                                                                   

the right to refuse probation is derived from "[the Alaska] statutes governing probation".  



                                                                                                                                                                                                                                  

See Brown, 559 P.2d at 111 n. 13, and Sweezey, 167 P.3d at 80.  



            9           559 P.2d 107, 111 n. 13 (Alaska 1977).  



            10          167 P.3d 79, 80-81 (Alaska App. 2007).  



                                                                                                                                              - 11 -                                                                                                                                             2660
  


----------------------- Page 12-----------------------

                     Indeed, as our supreme court recognized in Pete v. State, 379 P.2d 625, 626  

                                                                                                                                



(Alaska 1963), courts have no inherent authority to suspend a portion of a defendant's  

                                                                                                                    



sentence and to place a defendant on probation.  This power must be granted by the  

                                                                                                                                



legislature.  See also Edwards v. State, 34 P.3d 962, 968 (Alaska App. 2001).  

                                                                                                                          



                     Because the power to suspend a sentence and impose probation must be  

                                                                                                                                 



granted by statute, the scope and terms of this power are governed by the provisions of  

                                                                                                                                  



the granting statute.  This is why, in  Chinuhuk v. State, 413 P.3d 1215 (Alaska App.  

                                                                                                                             



                                                                                                                                

2018), this Court upheld a special type of probation created by the legislature for sex  



                                                                                                                                  

offenders - a type of probation that expressly could not be rejected by the defendant -  



                                                                                                                      

against the claim that Brown prohibited this type of non-refusable probation.  Chinuhuk,  



                                       

413 P.3d at 1219-1220.  



                                                                                                                                  

                     We therefore reject Ray's contention that he has a constitutional right to  



                                                                                                       

refuse further probation.  Any such right must derive from statute.  



                                                                                                        

           Why we certify the question of the proper interpretation of AS 12.55.090(f)  

                                   

           to the supreme court  



                                                                                                                      

                     More than forty years ago, in Brown, the Alaska Supreme Court construed  



                                                                                                                          

our probation statutes as giving criminal defendants the right to reject probation. Indeed,  



                                                                                                                            

during  the  probation  revocation  proceedings  in  Ray's  case,  the  sentencing  judge  



                                                                                                                              

seemingly  acknowledged  Ray's  right  to  reject  further  probation.                                      The  judge  also  



                                                                                                                      

expressly acknowledged that he should not automatically impose all of Ray's remaining  



                                                                                                                         

jail time - that he was required, instead, to evaluate Ray's sentence under the  Chaney  



                               

sentencing criteria.  



                                                                                                                         

                     Nevertheless, when the time came to impose sentence, the judge adopted  



                                                                                                                               

the prosecutor's suggestion of extending Ray's probation to 5 years so that, if Ray  



                                                              -  12 -                                                         2660
  


----------------------- Page 13-----------------------

committed  another  felony,  he  would  be  subject  to  an  aggravated  sentence  under  

                                                                                                                           



AS 12.55.155(c)(20).  

                                   



                    The proceedings in the superior court are notable in two respects.  First,  

                                                                                                                            



when Ray announced that he wished to end his probation, the prosecutor never argued  

                                                                                                                          



that Ray was statutorily prohibited from rejecting further probation - which is the  

                                                                                                                               



position that the State takes in this appeal. Second, when the prosecutor expressly asked  

                                                                                                                            



the judge to extend Ray's probation to 5 years, and when the sentencing judge followed  

                                                                                                                       



the prosecutor's recommendation, Ray's attorney never objected that any continued  

                                                                                                                     



probation was illegal - which is the position that Ray takes in this appeal.  In other  

                                                                                                                            



words, both parties to this appeal are litigating this case based on legal theories that they  

                                                                                                                              



never articulated in the trial court.  

                                                      



                    Ray's position - that he had a right to reject further probation, and that the  

                                                                                                                                



superior  court  acted  illegally  when  it  subjected  him  to  continuing  probation  -  is  

                                                                                                                                 



supported by longstanding Alaska case law, beginning with the supreme court's 1977  

                                                                                                                            



decision in Brown .   The State's position - that Ray had no right to reject further  

                                                                                                                         



probation - is based on the legislature's enactment of AS 12.55.090(f):  

                                                                                                                



                              Unless the defendant and the prosecuting authority  

                                                                                                  

                    agree ... , the court may not reduce the specific period of  

                                                                                                            

                    probation, or the specific term of suspended incarceration  

                                                                                            

                    except  by  the  amount  of  incarceration  imposed  for  a  

                                                                                                             

                    probation violation, if  

                                                       



                              (1) the sentence was imposed in accordance with a  

                                                                                                              

                    plea agreement under  Rule 11,  Alaska Rules  of Criminal  

                                                                                                  

                    Procedure; and  

                                             



                              (2) the [plea] agreement required a specific period of  

                                     

                                                                                                  

                    probation or a specific term of suspended incarceration.  

                                                                                     



                                                             -  13 -                                                         2660
  


----------------------- Page 14-----------------------

                                                                    As we explain in the three separate opinions that follow, no two members                                                                                                                                                                                                                                                           



 of this Court are able to agree on the proper interpretation of AS 12.55.090(f).                                                                                                                                                                                                                                                                                                                                 



                                                                    Judge                                    Mannheimer                                                                  believes                                            that,                            even                               after                             the                        enactment                                                     of  



 AS 12.55.090(f), Ray retained his statutory right to reject probation.                                                                                                                                                                                                                                                                                          It was therefore                                                                          



 improper for the sentencing judge to impose a sentence that left Ray on probation for an                                                                                                                                                                                                                                                                                                                                                 



 additional 5 years, and the judge should now re-sentence Ray in conformity with the                                                                                                                                                                                                                                                                                                                                                 



 Chaney  sentencing criteria.   



                                                                    Judge   Suddock   likewise   believes   that,   even   after   the   enactment   of  



 AS 12.55.090(f), Ray retained his statutory right to reject probation.                                                                                                                                                                                                                                                                                        However, Judge   



 Suddock concludes that, in such cases, AS 12.55.090(f) requires the sentencing judge to                                                                                                                                                                                                                                                                                                                                                    



 impose all of a defendant's remaining suspended jail time, regardless of whether such                                                                                                                                                                                                                                                                                                                                        



 a sentence would be consistent with                                                                                                                                                    Chaney.   



                                                                    Judge Allard believes that AS 12.55.090(f) eliminated a defendant's right                                                                                                                                                                                                                                                                                 



 to reject further probation in all instances where the length of the defendant's term of                                                                                                                                                                                                                                                                                                                                                  



 probation was a specified component of the defendant's plea bargain.                                                                                                                                                                                                                                                                                              



                                                                    When the members of an appellate court are unable to muster a majority in                                                                                                                                                                                                                                                                                               



 favor of any disposition, the law declares that the judgement under review will stand as                                                                                                                                                                                                                                                                                                                                                  



 issued - but only by operation of law. The lower court's judgement is neither affirmed                                                                                                                                                                                                                                                                                                                    



 nor reversed; it simply goes into effect because the appellate court is unable to decide the                                                                                                                                                                                                                                                                                                                                          



                                        11  

 appeal.     



                  11              See, e.g., Boldt Machinery & Tools, Inc. v. Wallace, 366 A.2d 902, 904 (Pa. 1976);  



Heritage Resources, Inc. v. NationsBank, 960 S.W.2d 619, 620 (Tex. 1997); State ex rel.  

                                                                                                                                                                                                                                                                                                                                                                

 Taxpayers of Pierce County v. Remann, 190 P.2d 95, 95 (Wash. 1948).  See, in particular,  

Appeal of Levine , 95 A.2d 222 (Pa. 1953), where the Pennsylvania Supreme Court was split  

 three ways regarding the proper disposition of an appeal.  



                                                                                                                                                                                                             -  14 -                                                                                                                                                                                                             2660
  


----------------------- Page 15-----------------------

                    Such an outcome would do little to advance the rights of the parties, or to  

                                                                                                                                



ensure the proper application of AS 12.55.090(f) in future cases.  We therefore certify  

                                                                                          



this issue of statutory interpretation to theAlaska Supreme Court under AS22.05.015(b).  

                                                                                                               



          Conclusion  



                    The superior court's decision to revoke Ray's probation is affirmed; the  

                                                                                                                               



evidence presented at Ray's probation revocation hearing supported the superior court's  

                                                                                                                         



findings that Ray violated his probation by leaving the Brother Francis Shelter without  

                                                                                                                        



permission, and by drinking alcohol to excess while he was in Anchorage.  

                                                                                                                   



                    We further reject Ray's contention that defendants who are on probation  

                                                                                                                     



have a constitutional right to refuse further probation.  

                                                                                    



                    But with regard to the meaning and effect of AS 12.55.090(f), this Court  

                                                                                               



is unable to reach a decision, and we therefore certify this issue to the Alaska Supreme  

                                                                                                                      



Court.  

             



                    If the Alaska Supreme Court rejects our certification, then the judgement  

                                                                                                              



of the superior court will stand, by operation of law.  

                                                                                 



                                                             -  15 -                                                        2660

  


----------------------- Page 16-----------------------

                      The three separate opinions of the members of this Court  

                                                                                                     



Judge MANNHEIMER.  

                                       



                    The question before us is the proper meaning and effect ofAS12.55.090(f),  

                                                                                                                 



a provision of our probation statutes that was first enacted in 2012. Here is the pertinent  

                                                                                                                       



language of this statute:  

                                      



                              Unless the defendant  and the prosecuting authority  

                                                                                                  

                    agree ... , the court may not reduce the specific period of  

                                                                                                            

                    probation, or the specific term of suspended incarceration  

                                                                                            

                    except  by  the  amount  of  incarceration  imposed  for  a  

                                                                                                             

                    probation violation, if  

                                                       



                              (1) the sentence was imposed in accordance with a  

                                                                                                              

                    plea agreement under  Rule 11, Alaska Rules of Criminal  

                                                                                                  

                    Procedure; and  

                                             



                                     

                              (2) the [plea] agreement required a specific period of  

                    probation or a specific term of suspended incarceration.  

                                                                                     



                    Nothing in the language of this statute speaks directly to a defendant's right  

                                                                                                                             



to reject probation.  That is, the statute does not expressly say that a defendant whose  

                                                                                                                          



plea  bargain  contains  a  specific  period  of  probation  has  no  right  to  reject  further  

                                                                                                                         



probation during the life of the sentence. Instead, the statute says that when a defendant  

                                                                                                                     



is sentenced under a plea bargain which calls for a specific term of probation, the court  

                                                                                                                            



is  prohibited  from  reducing  the  defendant's  term  of  probation  unless  both  the  

                                                                                                                              



government and the defendant agree.  

                                                           



                    My colleague, Judge Allard, concludes that this is just another way of  

                                                                                                                                 



saying  that  defendants  in  this  situation  have  no  right  to  reject  probation.                                  But  the  

                                                                                                                               



                                                             -  16 -                                                         2660
  


----------------------- Page 17-----------------------

legislative history of this provision - in particular, the lengthy testimony offered in                                                                                                                                                                                                                                                           



 support of the statute by Deputy Attorney General Richard Svobodny - shows that this                                                                                                                                                                                                                                                       



language is addressed to a different problem:                                                                                                                                            the problem of                                                   judges  who unilaterally   



decide to terminate a recalcitrant defendant's probation because they are tired of dealing                                                                                                                                                                                                                                   



with the defendant.                                                            



                                                      AS   12.55.090(f)   was   proposed   by   the   Department  of   Law,   and   the  



Department   sent  two   different   representatives   - Assistant                                                                                                                                                                                     Attorney   General   Anne  



Carpeneti and Deputy Attorney General Svobodny - to explain the meaning of the                                                                                                                                                                                                                                                               



proposed statute to the legislature.                                                                                                         



                                                      Of the two Department of Law representatives, Mr. Svobodny offered the                                                                                                                                                                                                                   



most extensive description of the problem that AS 12.55.090(f) was intended to solve.                                                                                                                                                                                                                                                                        



According to Svobodny's remarks to the House Judiciary Committee, this statute was                                                                                                                                                                                                                                                         



intended to address the situation where a defendant violates their probation, and in                                                                                                                                                                                                                                                             



response the judge imposes "two days in jail" for the probation violation and then cuts                                                                                                                                                                                                                                                   



the defendant loose from any further probation - with the result that the "years of                                                                                                                                                                                                                                                              



probation" that the State bargained for "are going to go away" simply because the judge                                                                                                                                                                                                                                             



                                                                                                                                                                                      1  

has concluded that probation is not working.                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                                 

                                                     Not once during Mr. Svobodny's lengthy remarks to the legislature did he  



                                                                                                                                                                                                                                                                                                                               

assert that the new statute was intended to abrogate a defendant's right to reject further  



                                                                                                                                                                                                                                                                                                                                 

probation. Instead, Mr. Svobodny described the problemas a judicial problem - judges  



                                                                                                                                                                                                                                                                                                                       

who misuse their sentencing discretion in probation revocation proceedings:  



                                                       

                                                                                                                                                                                                                                                                                             

                                                                                Mr. Svobodny :  If the offender violates a condition of  

                                                                                                                                                                                                                                                                                 

                                                     probation, ... the judge just can't reward the person - can't  

                                                                                                                                                                                                                                                                                                      

                                                      say, "This is all going away, because I'm tired of you."  ...  



              1            Minutes of the House Judiciary Committee for April 12, 2012, discussion of Senate                                                                                                                                                                                                                     



Bill 210 @ 2:27 - 2:32.  



                                                                                                                                                                  -  17 -                                                                                                                                                                 2660

  


----------------------- Page 18-----------------------

                        The judge [has] the discretion ... to impose any [sentence]                               

                        from   nothing   up   to   [the   full   amount   of   the   defendant's  

                        remaining   suspended   jail   time.]     [But]   what   the   judge  

                        couldn't do would be [to] say, "Well, ... you have that four                                         

                        years   of   probation   that   was   bargained   for.     I'm going                                    to  

                        reduce that by half."                 2  



                                                                                   

Two minutes later, Mr. Svobodny reiterated:  



                          

                                                                                                                       

                                    Mr. Svobodny :  What we're trying to say [in subsec- 

                                                                                                                        

                        tion (f)] is [that a] judge shouldn't [be able to] say, "Okay,  

                                                                                                                                

                        we're done.  Go away.  I'm eliminating ... that four years [of  

                                                                                                                           

                        probation].              ...     The  judge  [shouldn't  be  able  to  say],  

                                                                  

                        "Because there's been a probation revocation, you're going  

                                                                                                                                   

                        to get something less than you bargained for."  ...  Kind of a  



                                                                                    3  

                                                                            

                        reward for doing something bad.    



                                                                                                                                                    

                        In  other  words,  according  to  Mr.  Svobodny,  the  Department  of  Law  



                                                                                                                                          

intended the new statute to restrict judicial sentencing discretion  in probation revocation  



                                                                                                                                                    

hearings, so that judges  could not unilaterally reduce a defendant's bargained-for term  



                                                                                                                                

of probation when the judge grew tired of dealing with the defendant.  



                                                                                                                                                      

                        Neither Ms. Carpeneti nor Mr. Svobodny ever informed the legislature that  



                                                                                                                                                      

AS 12.55.090(f) was intended to eliminate a defendant's right to reject probation.  



                                                                                                                                                     

                        Ever since our supreme court's decision in Brown v. State, 559 P.2d 107,  



                                                                                                                                            

 111 n. 13 (Alaska 1977), Alaska law has recognized that defendants have a statutory  



                                                                                                                                                        

right  to  reject  probation.                     If  the  Department  of  Law  had  wanted  the  legislature  to  



                                                                                                                                                     

eliminate this right for a class of defendants (those who resolve their cases through plea  



                                                                                                                                                     

agreements that specify a termof probation -probably the majority of defendants), then  



      2     Id. @ 2:31 - 2:32.  



      3     Id. @ 2:34:00 - 2:34:52.  



                                                                         -  18 -                                                                    2660
  


----------------------- Page 19-----------------------

one would expect the Department of Law's representatives to (1) explicitly identify this                                                                                                                                                             



issue and (2) explicitly ask the legislature to change the existing law on this point.                                                                                                                                                             But  



the legislative history contains no such discussion.                                                                                                   



                                       For these reasons, the meaning of the statute is, at best, ambiguous on the                                                                                                                                     



question of whether defendants retain their pre-existing right to reject probation. Alaska                                                                                                                                                 



law therefore directs us to construe this penal statute against the government and in favor                                                                                                                                                     



                                                                                                                                                                                     4  

of criminal defendants' pre-existing right to reject probation.                                                                                                                          



                                                                                                                                                                                                                                                            

                                        Judge Suddock agrees that AS 12.55.090(f) was not meant to abrogate a  



                                                                                                                                                                                                                                             

defendant's right toreject probation. However, JudgeSuddockconcludes that the statute  



                                                                                                                                                                                                                                           

was intended to alter the consequences of a defendant's rejection of probation.   Under  



                                                                                                                                                                                                                                     

Judge Suddock's view, when a defendant rejects a term of probation that was specified  



                                                                                                                                                                                                                                                      

in the defendant's plea bargain, the sentencing court must automatically impose the full  



                                                                                                                                                                                                                                             

remaining amount of the defendant's suspended jail time, even if such a sentence would  



                                                                                                                                                                                            

otherwise be incompatible with the Chaney sentencing criteria.  



                                                                                                                                                                                                                                                   

                                        This Court addressed this same sentencing issue in State v. Henry, 240 P.3d  



                                                                                                                                                                                                                                           

846 (Alaska App. 2010).  In Henry, we held that even when a defendant rejects further  



                                                                                                                                                                                                                                                         

probation and asks for a "flat-time" sentence, the sentencing judge is not allowed to  



                                                                                                                                                                                                                                                          

automatically impose all of the defendant's remaining jail time.  Instead, the judge is  



                                                                                                                                                                                                                                                          

required to evaluate the defendant's case under the Chaney sentencing criteria, and to  



          4         See State v. Andrews                                      , 707 P.2d 900, 907 (Alaska App. 1985), opinion adopted by the   



supreme court in State v. Andrews, 723 P.2d 85, 86 (Alaska 1986) ("Ambiguities in criminal  

statutes must be narrowly read and construed strictly against the government.");                                                                                                                                                        see also  

 Wells  v.  State,  706  P.2d  711,  713  (Alaska   App.   1985)  ("It  is  well  established  that,  in  

                                                                              

accordance with the rule of lenity, ambiguities in penal statutes must be resolved in favor of  

the accused.").  



                                                                                                                       -  19 -                                                                                                                     2660
  


----------------------- Page 20-----------------------

impose an appropriate sentence under the                                 Chaney  criteria - a sentence which might be                                



                                                                                                                                         5  

shorter than the full amount of the defendant's remaining suspended jail time.                                                               



                                                                                                                                                       

                       In Henry, we addressed the argument that this rule should not apply to a  



                                                                                                                                           

defendant whose plea agreement expressly called for the defendant to receive a specific  



                                                                                                                                                 

term of suspended imprisonment - the argument that, when a defendant accepted such  



                                                                                                                                                       

a plea bargain, the defendant impliedly waived their right to have the judge impose a  



                                                                                                                                                     

sentence based on the Chaney criteria, and thus the sentencing judge was required to  



                                                                                                                                                  

impose the full remaining amount of the defendant's suspended sentence, even if that  



                                                                                                            6  

                                                                                                                

sentence might not be supportable under the Chaney criteria.  



                                                                                                                                                 

                       In  Henry,  this  Court  rejected  the  argument  that  these  defendants  had  



                                                                                                                                                

impliedly  waived  their  right  to  be  sentenced  under  the  Chaney  criteria  when  they  



                                                                                                                                       

accepted their plea bargains.  We did not resolve the question of whether a defendant  



                                                                                                                                            

could ever lawfully waive their right to a sentence that was supportable under the Chaney  



                                                                                                                                                

criteria.  But we did hold that, if the State wished to have a defendant waive their right  



      5     Henry, 240 P.3d at 848-49; DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997).   



      6  

                                                                                                     

            Henry,  240  P.3d  at  849.                   Here  is  how  the  Henry  opinion  described  the  State's  

contention on appeal:  



                                                   

      According to the State, if a defendant agrees to a sentence that includes probation and  

                                                                                      

      suspended jail time, the defendant necessarily relinquishes the right to later terminate  

                                                                                                                                  

      their probation and ask the sentencing court to impose an active sentence of imprisonment  

                                                                                            

      based on the Chaney sentencing criteria.  Rather, if the defendant violates the conditions  

                                                                                                                                 

      of their probation, the sentencing court must impose the entire amount of the previously  

                                                                                                    

      suspended  jail  time  (regardless  of  whether  the  court  believes  that  such  a  sentence  

                                                    

      comports with the Chaney criteria) - or, alternatively, the court must allow the State to  

                                                                                                                                                    

      rescind the plea bargain and return the parties to the status quo ante (a rescission of the  

                                                                                                                                   

      defendant's conviction and sentence under the plea bargain, a return of that criminal  

                                                                                                  

      charge to a pre-trial posture, and a reinstatement of any other charges that were dismissed  

      as part of the plea bargain).  



                                                                       - 20 -                                                                   2660
  


----------------------- Page 21-----------------------

to a     Chaney-compliant sentence, at the very least the defendant's plea agreement had to                                                        



                              7  

expressly say so.                



                                                                                                                                     

                       JudgeSuddock points out that,at onepoint during thelegislativediscussion  



                                                                                                                                       

of AS 12.55.090(f), Assistant Attorney General Carpeneti indicated that the proposed  



                                                                                                                                          

statute was intended to address the situation discussed in Henry. Because of this passing  



                                                                                                                                                  

remark,  Judge  Suddock  concludes  that  AS  12.55.090(f)  should  be  interpreted  as  



                                                                                                                                                        

reversing the holding in Henry that a probationer's sentence must be compatible with  



                                                                                                                                         

the  Chaney criteria.   Judge Suddock concludes that, under AS 12.55.090(f), when a  



                                                                                                                                                   

defendant rejects a previously bargained-for probation, the defendant must receive all of  



                                                                                                                                  

their remaining suspended jail time, even if such a sentence would not be supportable  



                           

under Chaney.  



                                                                                                                                       

                       But  this  interpretation  of  the  statute  is  inconsistent  with  the  statute's  



                                                                                                                                      

legislative history. During the hearings on the proposed legislation, both Ms. Carpeneti  



                                                                                                                                                   

and Mr. Svobodny told the legislature that, under AS 12.55.090(f), the sentencing of  



                                                                                                    

probationers would continue to be governed by Chaney.  



                                                                                                                                            

                       Ms. Carpeneti told  the House Judiciary  Committee that when  a judge  



                                                                                                                                                  

imposed sentence under these circumstances, the judge was not obligated to impose the  



                                                                                                                                                

full amount of the defendant's remaining jail time.  Rather, the sentencing judge was  



                                                                                                                                     

required to consider the nature of the defendant's conduct in light of the applicable  



                                                                                                 8 

                                                                                                                                        

sentencing law, and to impose an appropriate sentence.    And Mr. Svobodny likewise  



                                                                                                                                            

told the Committee that the Department of Law was not trying to tie the judge's hands  



      7    Henry, 240 P.3d at 851.  



      8     Minutes of the House Judiciary Committee for April 11, 2012, discussion of Senate                                               



Bill 210, testimony of Assistant Attorney General Anne Carpeneti @ 1:39 - 1:40.  



                                                                      - 21 -                                                                  2660
  


----------------------- Page 22-----------------------

with respect to the amount of suspended jail time that should be imposed - that this                                                                       

decision was up to the judge.                          9    



                                                                                                                                         

                         A second, independent reason for rejecting Judge Suddock's interpretation  



                                                                                                                                                           

of the statute is that appellate courts should normally try to construe statutes in a way that  



                                                                                                                                                           

does not create constitutional problems, if we can avoid it.  As our supreme court has  



                                                                                                                                        

said, an appellate court generally seeks to construe statutes "to avoid constitutional  



                                                                                                                                                             10  

                                                                                                                                                                   

infirmity where that can be done without doing violence to the legislature's intent."  



                                                                                                                                                        

                         The sentencing criteria established by the Alaska Supreme Court in State  



                                                                                                                                                    

v.  Chaney are constitutionally based.   The supreme court declared that these criteria  



                                                                                                                                                       

derive from the mandate of Article I, Section 12 of the Alaska Constitution that penal  



                                                                                                                                                              11  

                                                                                                                                                                   

administration be based on the principles of reformation and protection of the public.  



                                                                                                                                          

                         Because the Chaney criteria are constitutionally based, if AS 12.55.090(f)  



                                                                                                                                                

were construed as a legislative mandate to exempt a category of sentencing decisions  



                                                                                                                                                        

from the Chaney criteria, this would raise significant constitutional problems. And there  



                                                                                                                                                        

is little in the legislative history to suggest that the legislature intended to take on these  



                                         

constitutional issues.  



                                                                                                                                           

                         For thesereasons,I rejectJudgeSuddock'ssuggestionthatAS12.55.090(f)  



                                                                                                                                           

should be interpreted as requiring judges to automatically impose all of a defendant's  



                                                                                                                                        

remaining suspended jail time if the defendant rejects further probation.  



                                                                                                                                         

                         In conclusion, I believe that the legislative history of AS 12.55.090(f)  



                                                                                                                                               

shows that this statute was not intended to abrogate the statutory right to reject probation,  



      9     Minutes of the House Judiciary Committee for April 12, 2012, discussion of Senate                                                         



Bill 210, testimony of Deputy Attorney General Richard Svobodny @ 2:31.  



      10    Barber v. Dept. of Corrections, 314 P.3d 58, 68 (Alaska 2013).  



      11    State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).  



                                                                           - 22 -                                                                        2660
  


----------------------- Page 23-----------------------

nor was it intended to abrogate a defendant's right to a sentence that is supportable under  

                                                                                                                           



the Chaney sentencing criteria.  

                                                  



                    I would thereforereversethejudgement of the superior court and direct that  

                                                                                                                              



court to terminate Ray's probation.  However, because it was illegal for the superior  

                                                                                                                       



court to continue Ray on probation, the superior court should be allowed to reconsider  

                                                                                                                    



its sentencing decision - in particular, its decision not to impose the remaining 90 days  

                                                                                                                             



of Ray's suspended jail time.  

                                              



                                                             - 23 -                                                         2660

  


----------------------- Page 24-----------------------

Judge SUDDOCK.   



                                    In our 2010 case                              State v. Henry                          , we characterized the State's position on                                       



appeal as follows:         



                                    According to the State, if a defendant agrees to a sentence                                                                            

                                    that includes probation andsuspended                                                                 jail time, thedefendant   

                                    necessarily   relinquishes   the   right   to   later   terminate   their  

                                    probation and ask the sentencing court to impose an active                                                                                       

                                    sentence of imprisonment based on the Chaney sentencing                                                                             

                                    criteria. Rather, if the defendant violates the conditions of                                                                                              

                                    their probation, the sentencing court must impose the entire                        

                                    amount of the previously suspended jail time (regardless of                                                                                                 

                                    whether the court believes that such a sentence comports with                                                                                         

                                    the Chaney criteria). . .                                    .[1]  



                                                                                                                                                                                                                                 

We rejected this formulation, holding that when such a probationer rejects probation, the  



                                                                                                                                                                                                             

sentencing court must instead apply the  Chaney criteria and sentence the defendant  



                                                                                                                                                                                                                             

accordingly, even if this were to lead to a less than full imposition of the suspended time  



                                                                                     2  

                                                        

specified in the plea agreement. 



                                                                                                                                                                                                                             

                                    Two years after we issued our decision in Henry, the Department of Law  



                                                                                                                                                                                                               

proposed legislation addressing the topic of a judge's sentencing discretion in probation  



                                                                                                                                                                                                                               

proceedings.                             A  representative  from  the  Department  of  Law  testified  before  the  



                                                                                                                                                                                                                                            

legislature that the proposed legislation was intended to overrule our decision in Henry.  



                                                                                                                                                                                                                            

I accordingly conclude that AS 12.55.090(f), as enacted in 2012, bars a sentencing court  



                                                                                                                                                                                                                            

from ever absolving a defendant from the suspended time to serve specified in a plea  



                                                                                                                                                                                                                      

agreement,  absent the  State's  consent.                                                                       Thus,  when  a  defendant  voluntarily  rejects  



                                                                                                                                                                                 

probation, they must serve all of their remaining suspended time.  



         1        State v. Henry, 240 P.3d 846, 849 (Alaska App. 2010).  



         2        Id. at 851.  



                                                                                                             - 24 -                                                                                                          2660
  


----------------------- Page 25-----------------------

                    AS 12.55.090(f) (2012) reads in relevant part as follows:  

                                                                                               



                              Unless the defendant and the prosecuting authority  

                                                                                                  

                    agree  at  the  probation  revocation  proceeding  or  other  

                                                                                                       

                    proceeding, the court may not reduce the specific period of  

                                                                                                             

                    probation  or  the specific term of suspended  incarceration  

                                                                                            

                    except  by  the  amount  of  incarceration  imposed  for  a  

                                                                                                             

                    probation violation, if  

                                                    



                              (1) the sentence was imposed in accordance with a  

                                                                                                              

                    plea agreement  under  Rule 11, Alaska Rules of Criminal  

                                                                                                  

                    Procedure; and  

                                             



                              (2)  the  agreement  required  a  specific  period  of  

                                                                                                           

                    probation or a specific term of suspended incarceration.  

                                                                                                           



Judge Mannheimer and I conclude that this statute does not abrogate a defendant's  

                                                                                                                  



statutory right to reject probation.  I further conclude that, since the statute precludes  

                                                                                                                     



forgiveness of any suspended time specified in a plea agreement, the statute's logic  

                                                                                                              



requires an imposition of all suspended time when a defendant rejects probation.  

                                                                                                            



                    Judge Mannheimer analyzes the testimony of the two representatives of the  

                                                                                                                                



Department of Law and arrives at a contrary construction of the statute.  He reasons in  

                                                                                                                                 



part  that  these  witnesses  testified  that  the  statute  was  not  intended  to  eliminate  

                                                                                                                     



consideration of the Chaney factors when a judge sentences a probationer, and therefore  

                                                                                                                       



that the Chaney factorsremain applicable when a defendant rejects probation. Under this  

                                                                                                                               



construction of the statute, the sentencing judge would be free to impose a less-than- 

                                                                                                                     



maximum sentence and to terminate any residual period of probation, contravening the  

                                                                                                                                



terms of the original plea agreement.  

                                                          



                    I read the testimony of the State's witnesses quite differently.  Their oft- 

                                                                                                                               



repeated overarching theme was that, because "a deal is a deal," a court should not be  

                                                                                                                                



                                                             - 25 -                                                          2660
  


----------------------- Page 26-----------------------

 authorized to unilaterally stray fromthe                                                                                                                                                                          terms of an original plea agreement. When                                                                                                                                                                                            these  



witnesses indicated that the  Chaney  factors remain applicable, this was with respect to                                                                                                                                                                                                                                                                                                                                                                                



 a hypothetical sentencing for a routine probation violation.                                                                                                                                                                                                                                                                     There, as to the amount of                                                                                                             



 suspended   time   to   be   imposed   consistently   with   the   original   plea   agreement,   the  



witnesses testified that the judge must apply the                                                                                                                                                                                                                    Chaney  factors.  Their point was that,   



if the judge imposed less than the maximum sentence for a probation violation, the judge                                                                                                                                                                                                                                                                                                                                                               



 could not then prospectively excuse the defendant from the remaining suspended time,                                                                                                                                                                                                                                                                                                                                                                    



 or from any portion of the remaining probationary period.                                                                                                                                                                                                                                                                    



                                                                         But the two State's witnesses never suggested that the proposed legislation                                                                                                                                                                                                                                                                        



 did not also apply to a probationer who rejects probation altogether. As will be seen, two                                                                                                                                                                                                                                                                                                                                                                     



 other witnesses did address that circumstance, and both of these witnesses testified that                                                                                                                                                                                                                                                                                                                                                                      



the legislation would require an automatic full imposition of all suspended time when a                                                                                                                                                                                                                                                                                                                                                                                       



probationer rejects probation. One of the State's witnesses then acknowledged the point                                                                                                                                                                                                                                                                                                                                                                  



 and did not contradict it.                                                                                                             



                                                                         Fairly read, nothing in the testimony of the two State's witnesses suggested                                                                                                                                                                                                                                                                          



that, under the State's proposed remedial legislation, a court could ever act                                                                                                                                                                                                                                                                                                                            inconsistently  



with the original plea agreement. Indeed, they testified that such judicial discretion was                                                                                                                                                                                                                                                                                                                                                                     



 anathema to the Department of Law, because allowing judges to contravene an original                                                                                                                                                                                                                                                                                                                                                     

plea bargain was poor public policy.                                                                                                                                                                  3  



                                                                                                                                                                                                                                                                                                                                                                                                                                                           

                                                                        Accordingly, I conclude that via this legislation, the Department of Law  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 succeeded in its announced goal of legislatively overruling our holding in Henry that a  



                  3                 See   Minutes of   House Judiciary Comm., Senate Bill 210, testimony of                                                                                                                                                                                                                                                                                                                        Assistant  



Attorney   General  Anne  Carpeneti,  1:44-1:45  p.m.   (Apr.  11,  2012);  Minutes   of   House  

JudiciaryComm., Senate Bill 210, testimonyof DeputyAttorneyGeneral Richard Svobodny,                                                                                                                                                                                                                                                    

2:27 p.m. (Apr. 12, 2012).  



                                                                                                                                                                                                                           - 26 -                                                                                                                                                                                                                             2660
  


----------------------- Page 27-----------------------

court has the authority to sentence a probationer who rejects probation inconsistently                                                                                 



with an original plea agreement.                                            



                               To explain my conclusion, I turn to the testimony of four witnesses who                                                                                       



testified  before the House Judiciary and Finance Committees.                                                                                           On April 11, 2012,                



Deputy   Public   Defender   Douglas   Moody   appeared   before   the   House   Judiciary  



Committee.    Moody testified that, under the proposed legislation, a sentencing judge                                                                                                    



would   be required to                               impose all of a defendant's remaining                                                        suspended  time   if the   



                                                                      4  

defendant   rejected   probation.                                                                                                                                                       

                                                                             That  is,  Moody  testified  that  the  legislation  would  



                                                                       5  

                                                                                                                                                                                                 

abrogate our holding in Henry.                                             Moody argued that the legislature should not adopt the  



                                                                                                                                                                                             

proposed legislation, but rather should leave standing the rule in Henry that a judge must  



                                                                                                                                                                                                   

sentence a rejecting probationer to a Chaney-compliant sentence, and not be required to  



                                                                                                                        6  

                                                                                                             

automatically impose all remaining suspended time. 



                                                                   

                               This point was reinforced the following day by Public Defender Quinlan  



                                                                                                                                                                                  

Steiner.   Like Moody, Steiner testified that the proposed legislation would unwisely  



                                                                                                                                                                             

require a judge to impose a maximum sentence when a probationer rejects probation:  



                                                                                                                                                    

                               When a client rejects probation, all of their time is imposed,  

                                                                                                                                                                    

                               [but under existing law] that can be subject to shortening of  

                                                                                                                                                               

                               the [full] amount of suspended time.  What this section does  

                                                                                                                                               

                               is kind of shifts the current law from that . . . to exactly the  

                                                                                                     

                               opposite . . .  .  

                                                       

                                              . . . .  



        4      Minutes of the House Judiciary Comm., Senate Bill 210, testimony of Deputy Public                                                                                          



Defender Douglas Moody, 2:23-2:24 p.m. (Apr. 11, 2012).  



        5      See id.  



        6      Id. at 2:30 p.m.  



                                                                                             - 27 -                                                                                          2660
  


----------------------- Page 28-----------------------

                         [T]he imposition of [all suspended time] would be statutorily                                

                         required, absent an agreement . . .                             .[7]  



                                                                                                                                                     

Steiner also indicated that he had discussed this understanding with one of the State's  



                                                                                                                                                        

witnesses, Assistant Attorney General Anne Carpeneti, and that they were on the same  



                                                                       8  

                                                   

page as to the effect of the legislation. 



                                                                                                                                                 

                         Deputy Attorney General Richard Svobodny was present during Steiner's  



                                                                                                                                                             

testimony, and he testified immediately thereafter.  Svobodny prefaced his remarks by  



                                                                                                                                                           

noting that the principle impelling the Department of Law to seek legislative redress was  



                                          9  

                                                                                                                                               

that "a deal is a deal."                       Svobodny then expressly acknowledged Steiner's testimony  



                                                                                                                                                  

regarding  the  act's  consequence  when  a  probationer  rejects  probation,  without  



                                                     10  

                                                                                                                                                     

contradicting that testimony.                             Svobodny instead turned his attention to what he termed  



                                                                                                                                                              

the vastly more common situation ("probably 95% of the times that this comes up") of  



                                                                                                                                                    11  

                                                                                                                                                               

a probationer who commits a probation violation but does not reject probation.                                                                            In a  



                                                                                                  

clear nod to our 2010 decision in Henry, Svobodny stated:  



                                                                                                                                   

                         What the decisions in the last year have said is basically the  

                                                                                                                                      

                        judge  can  say  . . . you have violated the law, that was a  

                                                                                                                              

                         violation of your conditions of probation, but I'm not going  



      7     Minutes of House Judiciary Comm., Senate Bill 210, testimony of Public Defender                                          



Quinlan Steiner, 2:17-2:18 p.m. (Apr. 12, 2012).  



      8     Id. at 2:16-2:18 p.m.  



      9     Minutes of House Judiciary Comm., Senate Bill 210, testimony of Deputy Attorney  

                                                                

General Richard Svobodny, 2:21 p.m. (Apr. 12, 2012).  



       10   Id.  



       11   Id. at 2:22 p.m.  

                   



                                                                           - 28 -                                                                        2660
  


----------------------- Page 29-----------------------

                       to do anything, and I'm going to just say that what you have                                   

                       done now is it.          [12]  



                                                                                                                                             

                       If Svobodny had disagreed with the assessment of the two witnesses from  



                                                                                                                                   

the Public Defender Agency that the legislation required imposition of all suspended  



                                                                                                                                                 

time when a probationer rejects probation, he clearly would have said so; to fail to do so  



                                                                                                                                             

would have been misleading. But Svobodny instead characterized that situation as rare,  



                                                                                                                                                

and addressed the balance of his remarks to a different context - that of sentences for  



                                                                                                                                      

probation  violations not accompanied  by a rejection  of probation.                                                     In  this context,  



                                                                                                                                       

Svobodny  agreed  that  the  Chaney  principles  applied,  but  he  testified  that  judicial  



                                                                                                                                                

discretion to shorten any remaining suspended time or probationary period should be  

prohibited.13  



                                                                                                                                

                       In  my  view,  Judge  Mannheimer  goes  astray  when  he  generalizes  



                                                                                                                                   

Svobodny's remarks about sentences for routine violations of conditions of probation,  



                                                                                                                                                      

to the separate and vastly rarer context of the consequence of a rejection of probation.  



                                                                                                                                                 

The clear tenor of Svobodny's remarks was that a judge should never be allowed to  



                                                                                                                                                

deviate from the terms of a plea bargain, and that decisions such as Henry  should be  



                                                                                                                                             

overruled by the legislature. Surely the Department of Law did not trouble itself to draft  



                                                                                                                                                 

legislation to remedy a situation that rarely occurs - arbitrary judicial reductions in  



                                                                                                                                                  

probationers' sentences - only to leave intact the holding of the case with which it  



                                                   

expressly disagreed, Henry.  



                                                                                                                                          

                       AssistantAttorney General AnneCarpeneti also testified,toboth theHouse  



                                                                                                                                                

Judiciary  and  Finance  Committees.                               Carpeneti  discussed  Henry  in  the  context  of  



                                                                                                                                                   

Svobodny's example about judges who, without justification, shorten the sentence of a  



      12   Id. at 2:27 p.m.  



      13   Id. at 2:22-2:24 p.m.  



                                                                     - 29 -                                                                  2660
  


----------------------- Page 30-----------------------

probationer who has violated applicable terms of probation but who does not reject                                                                                                                     



probation. But her clear point was that the original plea agreement should always remain                                                                                                             



inviolate whenever a judge sentences a probationer, and accordingly that our holding to                                                                                                                          

the contrary in                      Henry  should be overruled.                                          14  



                                                                                                                                                                                                     

                                 I conclude that the Department of Law, aggrieved by our decision in Henry,  



                                                                                                                                                                                                   

drafted legislation to deprive judges of the discretion to alter the terms of a plea bargain  



                                                                                                                                                                                                 

when a probationer is subsequently re-sentenced, and thereby to legislatively overrule  



                                                                                                                                                                                                

Henry.  My reading of the legislative history convinces me that the legislature intended  



                                                                                                                                                                                       

to  comprehensively  constrain  judicial  discretion  in  this  way.                                                                                             I  would  accordingly  



                                                                                                                                                                                                            

remand  the  case  to  the  trial  court,  directing  the  judge  to  instruct  Ray  about  the  



                                                                                                                                                                                                       

consequences of a rejection of probation. If Ray then persists in his desire to reject  



                                                                                                                                                                                                     

probation, the judge must sentence him to serve all of his remaining suspended time.  



         14      Minutes of House Finance Comm., Senate Bill 210, testimony of Assistant Attorney                                                                         



General Anne Carpeneti, 7:37-7:38 p.m., 7:45-7:46 p.m. (Apr. 13, 2012).  



                                                                                                    -  30 -                                                                                               2660
  


----------------------- Page 31-----------------------

Judge ALLARD.   



                                 I    disagree    with    Chief    Judge    Mannheimer's    and    Judge    Suddock's  



interpretations of AS 12.55.090(f).                                                     Instead, I agree with the State that AS 12.55.090(f)                                            



was intended to prohibit a defendant from                                                             unilaterally rejecting probation in cases where                                                    



the parties specifically agreed to a probationary term as part of a plea agreement.                                                                                           



                                 I come to this conclusion based on the plain language of the statute and the                                                                                                   



accompanying legislative history.                                                     First, the plain language of the statute indicates that                                                                 



the purpose of AS 12.55.090(f) was to ensure that the parties to a plea agreement that                                                                                            



involved a specific period of probation or a specific term of suspended incarceration are                                                                                                                       



                                                                                                                                        1  

held to that agreement.                                    As originally enacted in 2012,                                                                                                              

                                                                                                                                           AS 12.55.090(f) stated:  



                                   

                                                                                                                                                               

                                                  Unless the defendant and the prosecuting authority  

                                                                                                                                                                                 

                                 agree . . . , the court may not reduce the specific period of  

                                                                                                                                                     

                                 probation, or the specific term of suspended incarceration  

                                                                                                                                                                                  

                                 except  by  the  amount  of  incarceration  imposed  for  a  

                                                                                          

                                 probation violation, if  



                                                                                                                                                                                   

                                                  (1) the sentence was imposed in accordance with a  

                                                                                                                                                               

                                 plea agreement under  Rule 11,  Alaska Rules of Criminal  

                                                                         

                                 Procedure; and  



                                                                                                                

                                                  (2) the [plea] agreement required a specific period of  

                                                                                                                                          

                                 probation or a specific term of suspended incarceration.  



                                                                                                                                                                                                       

In other words, under the plain language of the statute, a court has no authority to reduce  



                                                                                                                                                                                              

a specific agreed-upon period of probation unless the parties to the original agreement  



                                                            

agree to that reduction.  



         1       Alaska Statute 12.55.090(f) was amended slightly in 2016, but the language quoted   



here remains the same.  



                                                                                                    - 31 -                                                                                                 2660
 
  


----------------------- Page 32-----------------------

                                         In my view, this language necessarily implicates a defendant's right to                                                                                                                                                 



formally reject probation and be resentenced to a "flat-time" sentence -                                                                                                                                                   i.e., a sentence                                



without a probationary term or suspended time - because such a resentencing cannot                                                                                                                      



take place if the court is not authorized to conduct that resentencing.                                                                                                                                            



                                         As a practical matter, a defendant can "reject" probation simply by refusing                                                                                                                          



to abide by their probation obligations.                                                                                   Such non-compliance will inevitably lead to                                                                                           



multiple   petitions   to   revoke   probation,   and   eventually   to   imposition   of   all   of   the  



probationer's suspended time - thereby "ending" the defendant's probation because                                                                                                                                                              



there is no longer any suspended time left to impose. Alaska law has historically allowed                                                                                                                                                       



a defendant to avoid such a long drawn-out process by allowing a defendant to formally                                                                                                                                                        



                                                                                                                                                                                                                                                                     2  

reject probation and be resentenced under the                                                                                             Chaney  criteria to a "flat-time" sentence.                                                                                      



                                                                                                                                                                                                                                            

But a defendant cannot formally reject probation  and  be resentenced to a flat-time  



                                                                                                                                                                                                                                          

sentence unless the court is authorized to conduct that resentencing.  Thus, under the  



                                                                                                                                                                                                                                 

plain language of AS 12.55.090(f), the court cannot reduce a bargained-for probationary  



                                                                                                                                                                                                                                                             

term - and a defendant cannot elect to reject probation - "[u]nless the defendant and  



                                                                                                                                                                  3  

                                                                                                                          

the prosecuting authority agree" to that resentencing.    



                                                                                                                                                                                                                                                              

                                         The legislative history supports this reading of the statute.  Although not  



                                                                  4  

                                                                                                                                                                                                                                                            

as clear as it could be,  the legislative history does make clear that AS 12.55.090(f) was  



          2         See Brown v. State, 559 P.2d 107, 111 n.13 (Alaska 1977); State v. Henry, 240 P.3d  



846, 848-49 (Alaska App. 2010).  



          3          In 2016, the legislature amended AS 12.55.090(f) to also allow for reduction of a                                                                                                                                                              



probationary                               term               in         cases                where                   "the             person                   qualifies                      for           a        reduction                        under  

AS  33.05.020(h)"  or  "a  probation  officer  recommends  to  the  court  that  probation  be  

terminated and the defendant be discharged from probation under                                                                                                                                         (g)   of this section or   

AS 33.05.040."  SLA 2016, ch. 36, 80.   



          4  

                                                                                                                                                                 

                     I acknowledge that the Public Defender Agency representatives had a different view  

                                                                                                                                                                                                                                 (continued...)  



                                                                                                                          - 32 -                                                                                                                         2660
  


----------------------- Page 33-----------------------

introduced in response to this Court's decision in                                                 State v. Henry               .   In her initial remarks       



at the April 11, 2012 House Judiciary Committee Meeting, Assistant Attorney General                                                                           



Anne Carpeneti stated that the amendment "deal[s] with the situation that arose . . . in                                                                                



                                 5  

                                                                                                                                                                     

State v. Henry                ."     Ms. Carpeneti then described Henry  as involving a defendant who  



                                                                                                                                                                        

"was sentenced under [a] plea agreement . . . violated his probation . . . and asked for the  



                                                                     6  

                                                                                                                                                             

period of probation to be reduced."                                      Ms. Carpeneti explained that the the State opposed  



                                                                                                                                                                     

any reduction in the defendant's probationary term because it was a bargained-for term  



                                                                                                                                                                       

of the plea agreement; but the Court of Appeals permitted the trial court to end the  



                                                                                                                                                                 7  

                                                                                                                                                                      

defendant's probation and to resentence the defendant under the Chaney criteria.                                                                                     Ms.  



                                                                                                                                                                

Carpeneti's description of the State's position in Henry was consistent with the State's  



                                                                                                                                                                 

position in its briefing in Henry (although inconsistent with our description of the State's  



                                                                  8 

                                                                          

                                                                    ).  

position in our decision in Henry 



       4      (...continued)  



of  the legislation than the Department of  Law representatives, and that this discrepancy  was  

never explicitly addressed or resolved.  



       5      Minutes of  House Judiciary  Comm., Senate Bill 210, testimony  of  Assistant Attorney  



General Anne Carpeneti, 1:37 p.m. (Apr. 11, 2012).  



       6     Id. at 1:39 p.m.   



       7     Id.  

                     



       8      I note that we partially  misdescribed the State's position in our opinion in Henry .  In  



Henry,   we described the State's position as   allowing a defendant to reject probation but  

requiring either imposition of  the remaining suspended time or rescission of  the original plea  

agreement.  Henry, 240 P.3d at 849.  However, a review of  the briefing in Henry  makes clear  

that the State's primary position in Henry was that a defendant who agreed to probation as  

a bargained-for term   of  their plea agreement should not be allowed to unilaterally  reject  

probation.  This is the same position that the State takes now, and that I view the Department  

of Law representatives as taking at the legislative hearings on AS 12.55.090(f).  



                                                                                - 33 -                                                                             2660
  


----------------------- Page 34-----------------------

                          In   a   subsequent   hearing   before   the   House   Finance   Committee,   Ms.  



Carpeneti reiterated that the purpose of the statutory amendment was to address a recent                                                                  



Court of Appeals opinion and to prevent the court from reducing the amount of the                                                                               



                                                                                       9  

                                                                                                                                                            

probationary term unless both parties agreed.                                              Thus, under AS 12.55.090(f), the court  



                                                                                                                                                   

would "look at the  Chaney criteria to decide what effect this violation of probation  



                                                                                                                                                                  

should have," but the sentence for the probation violation could not include reduction of  



                                                                                              10  

                                                                                     

the defendant's bargained-for probationary term. 



                                                                                                                                                         

                          Deputy Attorney General Richard Svobodny's testimony to the House  



                                                                                                                                                                  

Judiciary Committee is in accord with Ms. Carpeneti's description of the purpose of  



                                                                                                                                                            

AS 12.55.090(f). Mr. Svobodny stated that the new legislation required judges to abide  



                                                                       11 

                                                                                                       

by the precept that "a deal is a deal."                                     According to Mr. Svobodny, it is not fair for a  



                                                                                                                                                       

trial court to terminate probation when it is part of a bargained-for exchange because  



                                                                                                                                                                  

"both sides have negotiated in good faith over what is an appropriate sentence" and it is  



                                                                                                                                                             12  

                                                                                                                                                                   

                                                                                                                                                       

not "justice" for a judge to reduce the amount of probation that was bargained for. 



                                                                                                                                                                

                          Mr. Svobodny also notedthat therewereother parties' interests at stake and  



                                                                                                                                                             

that "lots of times, a period of probation . . . is determined based upon getting [the]  



                                                13  

                                                                                                                                                           

victim paid [restitution]."                          As Mr. Svobodny pointed out, victims would have to resort  



                                                                                                                                                  

to  civil  courts  to  get  restitution  if  a  judge  eliminated  a  bargained-for  probation  



      9      Minutes of House Finance Comm., Senate Bill 210, testimony of Assistant Attorney                                       



General Anne Carpeneti, 7:36-7:38 p.m. (Apr. 13, 2012).  



       10  

                                                                                                                                     

             Minutes of House Judiciary Comm., Senate Bill 210, testimony of Assistant Attorney  

General Anne Carpeneti, 1:39-1:40 p.m. (Apr. 11, 2012).  



       11  

                                                                                                                                                      

             Minutes of House Judiciary Comm., Senate Bill 210, testimony of Deputy Attorney  

General Richard Svobodny, 2:21 p.m. (Apr. 12, 2012).  



       12    Id. at 2:23-2:24 p.m.  



       13    Id. at 2:27 p.m.  



                                                                             - 34 -                                                                         2660
  


----------------------- Page 35-----------------------

                                                                                                                  14  

requirement by imposing a flat-time sentence.                                                                          Lastly, Mr. Svobodny emphasized that                                                    



the statutory amendment did not "tie the judge's hands" as to how much suspended time                                                                                                                        



                                                               15  

to impose for a violation.                                            



                                                                                                                                                                                   

                                 Based on the plain language of the amendment and the accompanying  



                                                                                                                                                                                              

legislative history, I conclude that AS 12.55.090(f) was enacted to prevent a defendant  



                                                                                                                                                                                    

from unilaterally rejecting probation if the term of probation was part of a bargained-for  



                                                                                                      

term of the defendant's plea agreement.  



         14     Id. at 2:28 p.m.  



         15     Id. at 2:31 p.m.  



                                                                                                    - 35 -                                                                                                 2660
  

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