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State v. Stafford (2/3/2006) ap-2031

State v. Stafford (2/3/2006) ap-2031

     Memorandum decisions of this court do not create  legal
     precedent.   See  Alaska  Appellate  Rule  214(d)   and
     Paragraph 7 of the Guidelines for Publication of  Court
     of  Appeals Decisions (Court of Appeals Order  No.  3).
     Accordingly, this memorandum decision may not be  cited
     as binding precedent for any proposition of law.


STATE OF ALASKA, ) Court of Appeals Nos. A-8872/A- 8888
) Trial Court Nos. 3PA-04-0735 CR;
Petitioner, ) 4FA-03-2713 CR
v. )
) O P I N I O N
) [No. 2031 February 3, 2006]
Respondents. )
Petitions for  Review
          from  the  District  Court,  Third  Judicial
          District,    Palmer,   David    L.    Zwink,
          Magistrate,  and  Fourth Judicial  District,
          Fairbanks, Winston S. Burbank, Judge.

          Appearances:     Terisia    K.    Chleborad,
          Assistant   Attorney  General,   Office   of
          Special Prosecutions and Appeals, Anchorage,
          and  Gregg D. Renkes, Attorney General,  and
          Scott   J.   Nordstrand,   Acting   Attorney
          General, Juneau, for the Petitioner.   Margi
          A.  Mock,  Assistant  Public  Defender,  and
          Barbara    K.   Brink,   Public    Defender,
          Anchorage,  for  Respondent  Stafford,   and
          William  R.  Satterberg Jr., Fairbanks,  for
          Respondent Castrey.

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

          STEWART, Judge.

          In   2001,   the   Alaska  legislature  toughened   the
penalties  for  driving  while under the influence  by  requiring
sentencing  courts to count all a defendants prior drunk  driving
convictions   no  matter how old  in determining  the  defendants
mandatory  minimum  sentence.  Before  that  time,  the  law  had
counted only convictions within the previous ten years.   But  in
2004,  the legislature concluded that the 2001 law was too harsh.
It   therefore  amended the law again, effective June  30,  2004.
Under  the  2004 amendment, only an offenders convictions  within
the  previous fifteen years are to be counted in determining  the
offenders   mandatory  minimum  sentence.   This  2004  amendment
reflected  a policy judgment that individuals who had  gone  many
years  without a drunk driving conviction should not be penalized
as harshly as offenders with more recent convictions.
          The  legislature specified that this change  should  go
into effect immediately  that is, as soon as it was signed by the
governor.   Otherwise, the legislature was silent as  to  exactly
who should benefit from the new law.
          This  consolidated  petition  for  review  raises   one
question:   whether defendants who committed their current  drunk
driving  offense  before June 30, 2004, but are sentenced  on  or
after  that  date, should have their mandatory minimum  sentences
calculated based on the new, more lenient law.
          The  parties  have  addressed  this  issue  as  one  of
retroactivity.  But we conclude that no issue of retroactivity is
presented in this case.  Rather, for the reasons explained  here,
we conclude that the date of sentencing is the pertinent date for
applying the new law to a particular defendants case.  Thus,  the
new  law applies to all defendants sentenced on or after June 30,

          Facts and proceedings
          Scott  R. Stafford was arrested for driving while under
the  influence on March 21, 2004.  He had four prior  convictions
three of them within the previous fifteen years and one seventeen
years  earlier, in 1987.  Under the lifetime look-back for  prior
convictions  in  effect at the time of his offense,  he  faced  a
minimum  sentence  of  240 days to serve as  a  fifth  offender.1
Under  the  new law, because his first conviction was  more  than
fifteen years old, he faced a mandatory minimum sentence  of  120
days as a fourth offender.2
          Jeffrey  L.  Castrey was arrested for drunk driving  on
July  21, 2003.  He had been convicted of drunk driving only once
before, in 1977  more than twenty-five years earlier.  Under  the
lifetime look-back in effect at the time of his offense, he faced
a  mandatory  minimum sentence of 20 days to serve  as  a  second
offender.3  Under the new law, he would be a first offender,  and
his mandatory minimum sentence would be 72 hours.4
          Magistrate  David  L.  Zwink  presided  over  Staffords
sentencing  hearing, and District Court Judge Winston S.  Burbank
          over Castreys.  They both ruled in favor of the defendants,
concluding that the defendants mandatory minimum sentences should
be  determined under the new law because they were still awaiting
sentencing on June 30, 2004, when that law went into effect.
          We  granted  the States petitions for review  of  these
decisions.   The State argues that only defendants who  committed
their offense on or after the laws June 30, 2004, effective  date
are  subject  to  the new law.  The respondents argue  that  they
should  benefit from the new law because they will  be  sentenced
after the laws effective date.

          Why   we   conclude  that  the  fifteen-year  look-back
          applies  to  all defendants sentenced on or after  June
          30, 2004

          As  noted  above, the 2004 amendment directed that  the
new definition of previously convicted go into effect immediately
as  soon  as  it was signed by the governor.5  Beyond  this,  the
legislature did not explain what it meant by  immediately.
          The  State  urges us to conclude that a sentencing  law
that  has  immediate  effect  applies  only  to  defendants   who
committed  their  offenses on or after the  new  sentencing  laws
effective  date.  In support of that argument, the  State  relies
heavily  on AS 01.05.021.  That statute was enacted in  1963  and
has never been changed.  It reads:
               (a)  No  fine, forfeiture,  or  penalty
          incurred under laws existing before the time
          the  Alaska Statutes take effect is affected
          by  repeal  of  the existing  law,  but  the
          recovery  of  the fines and forfeitures  and
          the   enforcement  of  the   penalties   are
          effected  as if the law repealed  had  still
          remained in effect.
               (b) In the case of an offense committed
          before  the  time the Alaska  Statutes  take
          effect,  the offender is punished under  the
          law   in   effect  when  the   offense   was
          committed. (Emphasis added).
          The  plain language of AS 01.05.021 indicates  that  it
was  enacted as a saving statute for repealed laws enacted before
Alaska  became  a  state.6   The State has  cited  no  persuasive
authority for interpreting the statute more broadly to mean  that
a  defendant always must be punished under the law in  effect  at
the  time  of  the offense, even if the legislature  lessens  the
penalty for the offense before the defendant is sentenced.
          Indeed,   the   Alaska  Supreme  Courts   decision   in
Davenport  v. McGinnis7 suggests that the States construction  of
AS  01.05.021  is wrong.  Davenport involved a juvenile  who  was
adjudged delinquent and committed to a juvenile facility  for  an
indeterminate  period  not  to  extend  beyond  his  twenty-first
birthday.8  After his commitment, the law was amended  to  reduce
the maximum age of release upon indefinite commitment to nineteen
years.9   Davenport was released two weeks after  his  nineteenth
birthday,  and  he  filed  an action  for  damages  for  wrongful
imprisonment.10   In  rejecting that  claim,  the  supreme  court
refused  to  give retrospective effect to the amendment  reducing
Davenports  allowable maximum sentence because  Davenports  final
judgment  preceded the effective date of the amendment,  and  the
legislature  had  expressed no intent to  apply  the  legislation
retrospectively.11   But  before reaching  this  conclusion,  the
supreme court noted a split of authority on the question of  when
an  offender should receive the benefit of an ameliorative change
in  sentencing  law.  The court stated that [t]he sentence  which
may  be  imposed upon a convicted adult is determined as  of  the
time  of  the final judgment of conviction, or as of the time  of
commission  of  the offense.12  It added:   We  need  not  choose
          between the time of commission of the criminal act and the time
of final judgment, since both antedated the effective date of the
amendment to the sentencing statute.13
          In  referencing  this split of authority,  the  supreme
court  cited  its own earlier decision in P.H.  v.  State.14   In
P.H.,  the  court  had  declared that  as  a  general  rule,  the
punishment for an offense is governed by the law in effect at the
time the offense is committed.15  In Davenport, the supreme court
signaled that it was still an open question whether this  general
rule applied to an ameliorative change to a sentencing law.16  In
noting  this  unresolved issue, the court made no mention  of  AS
          The  trend in Alaska cases since Davenport has been  to
acknowledge  the  general rule stated  in  P.H.,  while,  in  the
interests  of  justice  and  to  comport  with  the  legislatures
apparent  intent, applying ameliorative sentencing provisions  to
defendants not yet sentenced.  In Zurfluh v. State,17 the supreme
court  addressed legislation overturning a supreme court decision
declaring that courts had no authority to impose incarceration as
a  condition of suspended imposition of sentence.18  At the  time
Zurfluh  committed  his offense, Alaska courts  commonly  imposed
such  sentences  though apparently without statutory authority.19
But  Zurfluh was sentenced during the 153-day period between when
the  supreme  court disallowed such sentences and the legislature
formally   acted   to  authorize  them.20   After   noting   that
retrospective  application of statutes is generally barred  under
AS  01.10.090,  unless  the legislature  expressly  provides  for
retrospective  effect, the court found an exception  in  Zurfluhs
case.21  The court explained:
               The  general  rule of  construction  of
          curative  legislation is that  retroactivity
          will be ascribed to it more readily than  to
          that  which  may  disadvantageously,  though
          legally,    affect   past   relations    and
          transactions.   2   C.   Sands,   Sutherland
          Statutory  Construction  41.04 at  253  (4th
          ed.  1973).   The  apparent  intent  of  the
          legislature [was] that the benefits of  this
          type  of  sentencing should be available  to
          trial  judges as soon as possible and  there
          is  nothing to indicate that the legislature
          meant  to  discriminate against  people  who
          were  sentenced  during the  153  days  when
          suspended  imposition  of  sentence  with  a
          period  of  incarceration  was  unavailable.
          Based on this reading of legislative intent,
          we  hold that on remand the trial judge  may
          apply   AS  12.55.086  when  he  reconsiders
The  supreme  court  applied this same reasoning  in  Mangold  v.
          We  have taken a similar view.  In Sundberg v. State,24
the  defendant  on  remand  was sentenced  to  8  years  for  his
conviction for grand larceny.25  He argued that this sentence was
          excessive, pointing out that if he had been convicted under the
new  criminal code  which became effective about one month  after
he  committed his offense but before he was tried and sentenced26
he would have been charged with theft in the second degree, which
carried a maximum sentence of only 5 years.27
          In  light  of  the  new  criminal  codes  more  lenient
treatment  of Sundbergs offense, Sundbergs claim caused  us  some
concern.28   We  noted  that [a] number of cases  stand  for  the
proposition  that when a defendant is tried and the judgment  and
sentence  entered,  subsequent  to  an  amendment  to  a  statute
reducing the penalty for the crime for which he is convicted,  he
should  be  entitled to the benefit of the lesser penalty  rather
than  the  penalty  in  effect  at  the  time  the  offense   was
committed.29  In particular, we cited the following language from
State v. Tapp,30 a Utah Supreme Court decision:
          There  are several considerations  which  in
          our mind tend to support our conclusion that
          where an enactment reducing the penalty  for
          an offense has become effective prior to the
          conviction, a defendant is entitled  to  the
          benefit thereof by having penalty imposed in
          accordance with the law at the time  of  the
          sentence.  The first of these is that it  is
          the    prerogative   of   the   legislature,
          expressing  the will of the people,  to  fix
          the  penalties  for crimes; and  the  courts
          should give effect to the enactment and  the
          effective   date  thereof  as  so  declared.
          There  are some other fundamental principles
          engrained  in  our  law  which,  though  not
          directly controlling on the problem at  hand
          are  generally  in harmony with  the  policy
          considerations which lead to the  conclusion
          we  have  reached herein.  One of  these  is
          that to insist on the prior existing harsher
          penalty  is  a  refusal to accept  and  keep
          abreast  of  the  process  which  has   been
          continuing  over  the years of  ameliorating
          and  modifying  the treatment of  antisocial
          behavior  by  changing  the  emphasis   from
          vengence  and  punishment to  treatment  and
          rehabilitation.  In the same tenor are time-
          honored  rules of the criminal law generally
          favorable  to one accused of a crime:   that
          in  case of doubt or uncertainty as  to  the
          degree  of the crime, he is entitled to  the
          lesser; and correlated thereto: that  as  to
          an  alternative between a severe or  lenient
          punishment,   he   is   entitled   to    the
          In   Sundberg,  we  found  that  the  legislature   had
expressly  declared that the new criminal code did not  apply  to
offenses  committed  before  its effective  date  and  ruled,  in
conformity  with  Tapp,  that  this  legislative  intent   should
control.32   Nevertheless, we declared that while not binding  on
          the trial court, the new code does give an indication of current
legislative  intent  and,  absent  factors  in  a  specific  case
warranting a harsher sentence, the defendant should be  sentenced
within the range of sentences provided by the new code, at  least
to  the  extent that his conduct corresponds exactly  to  conduct
prohibited  by  a specific provision, or provisions  of  the  new
code.33    In  Sundbergs  case,  we  found  that  the  defendants
repetitive criminality justified the more severe sentence.34
          Sundberg   foreshadowed  our  decision  in  Helton   v.
State.35  In Helton, we addressed how an amendment to the statute
governing  good-time credit for incarcerated offenders should  be
applied  to offenders who were sentenced and incarcerated  before
the change in law but who were subsequently re-sentenced.  The re-
sentenced  defendants sought to have the new law, which increased
their  good-time  credit, applied to their whole sentences,  even
though  their  sentences  had been partially  served  before  the
amendments  effective  date.36   We  concluded  that  the   plain
language  of the amendment provided that all offenders  sentenced
to  imprisonment after the amendments effective date of April  9,
1986,  were entitled to the benefits of the new law.37  The State
argued  that we should disregard the plain meaning of the statute
because  retrospective application of the new law  would  violate
the  states general saving statutes.38  The State argued,  as  it
does  here,  that the saving statutes, and prior Alaska  criminal
cases, dictated that the significant date for determining whether
a  statute  is being retrospectively applied is the date  of  the
offense.39   The  State relied in large part on AS  01.10.100(a),
which provides:
          The  repeal or amendment of a law  does  not
          release    or   extinguish   any    penalty,
          forfeiture, or liability incurred  or  right
          accruing  or accrued under that law,  unless
          the  repealing or amending act  so  provides
          expressly.   The  law shall  be  treated  as
          remaining  in  force  for  the  purpose   of
          sustaining  any proper action or prosecution
          for the enforcement of the right, penalty,
          forfeiture, or liability.
We rejected the States argument, reasoning as follows:
          The  cases  relied on by the state  for  the
          proposition that the date of the offense  is
          controlling    involve   the   retrospective
          application of statutes whose effect was  to
          deprive the defendant of substantive  rights
          that  have been deemed to accrue at the time
          of    the   offense.    Such   retrospective
          application is clearly prohibited  under  AS
          01.10.100(a),  because  it  extinguishes   a
          right [already] accruing or accrued under  a
          former law.
               In contrast, application of the amended
          good-time   credit  statute   to   prisoners
          incarcerated before April 9, 1986, does  not
          extinguish  any right accrued prior  to  the
          amendment.   Instead,  the  statute  confers
               additional rights, augmenting the benefits
          previously   accrued  and   received.    For
          purposes of determining retrospectivity, the
          significant  date, by the plain language  of
          the  statute itself, is not the date of  the
          offense but rather the date of sentencing.
               Moreover, although increasing good-time
          credit will generally decrease the amount of
          time  a  prisoner must actually serve,  this
          does not amount to extinguishing an existing
          penalty.   As penalties are imposed  at  the
          time  of  sentencing, a  prisoner  sentenced
          after April 9, 1989, cannot be said to have
          accrued  penalties prior to the effective date  of  the
For these and other reasons, we held that the State had failed to
meet its heavy burden to prove that the legislature intended  the
amendment  to  be  interpreted other than as  its  plain  meaning
          In  light  of  the case law we have just discussed,  we
cannot  presume that the legislature, by making the  fifteen-year
look-back  immediately effective but otherwise remaining  silent,
intended  the  date of the offense, as opposed  to  the  date  of
sentencing, to be controlling, as Alaska law has not been settled
on  this  point.  Our review of the legislative history  and  the
pertinent cases now persuades us to join those jurisdictions that
have  held  that  a defendant should receive the  benefit  of  an
ameliorative  sentencing  law  in  effect  at  the  time  he   is
sentenced,  unless the legislature intended a contrary  result.42
The  rule  of lenity favors this conclusion.  As we have  stated:
If  a  statute establishing a penalty is susceptible of more than
one  meaning,  it should be construed so as to provide  the  most
lenient penalty.43
          We  therefore  construe  the legislatures  decision  to
make  the repeal of the lifetime look-back immediately effective,
and  to omit any language limiting the new fifteen-year look-back
to  offenses committed on or after that immediate effective date,
as evidence that the legislature wished the new law to be applied
as  soon  and  as  broadly  as  possible,  without  extinguishing
penalties imposed under the old sentencing law.  Because the  new
definition  of  previously  convicted  imposes  no  burden  on  a
defendants  substantive rights, our ruling does not  violate  the
prohibition  against  ex  post facto laws.44   We  also  find  no
statutory  bar to this result.  Because penalties do  not  accrue
until   sentencing,   no   penalty  is  extinguished   under   AS
01.10.100(a) when a defendant is sentenced under a  law  that  is
more lenient than the law in effect at the time he committed  his
offense.45   We further find that AS 01.05.021 is not controlling
here.   That  statute, by its plain language, was  enacted  as  a
saving  statute for repealed laws enacted before Alaska became  a
state.   We  have  found  no persuasive authority  to  support  a
broader reading.
          The  State  argues  that the rule we adopt  today  will
invite offenders to manipulate the process by delaying sentencing
in  the  hope  of  benefitting from an   ameliorative  change  in
          sentencing law  as Castrey apparently did in this case.  We note
that  the  State stipulated to the sentencing delay  in  Castreys
case.   In  any  event,  as we observed  in  Helton,  whenever  a
legislative   amendment  takes  effect  on  a  fortuitous   date,
fortuitous results are inevitable.46

          The  decisions  of  the district  court  are  AFFIRMED.
Courts determining a defendants mandatory minimum sentence  based
on  the  definition of previously convicted in AS  28.35.030  are
directed to apply the statute in effect on the date the defendant
is sentenced.
     1  Former AS 28.35.030(b)(1)(E) & AS 28.35.030(r)(4)  (prior
to 2004 amendment).

     2 AS 28.35.030(b)(1)(D) & AS 28.35.030(t)(4).

     3  Former AS 28.35.030(b)(1)(B) & AS 28.35.030(r)(4)  (prior
to 2004 amendment).

     4 AS 28.35.030(b)(1)(A) & AS 28.35.030(t)(4).

5  Ch.  126,   8,  SLA 2004; see also AS 01.10.070(c)  (providing
that statutes that have an immediate effect date become effective
at  12:01 a.m. on the day after the governor signs the bill  into

     6  Under  the  common law, the repeal of a criminal  statute
resulted in the abatement of all prosecutions under that law that
were  not  final,  unless  the  legislature  included  a  special
provision  to  save  prosecutions  under  the  repealed  statute.
Holiday  v.  United States, 683 A.2d 61, 66-67 (D.C. App.  1996).
This  was  the case even when laws were amended or reenacted,  as
those  revisions  effectively repealed  the  underlying  statute.
Most  states  enacted  general saving  statutes  to  prevent  the
inadvertent  abatement of criminal prosecutions.  These  statutes
shifted  the common-law presumption that repealed statutes  would
be  abated unless the legislature specified otherwise to  one  of
non-abatement  in the absence of contrary legislative  direction.
Id.   (quoting   Comment,  Todays  Law  and   Yesterdays   Crime:
Retroactive Application of Ameliorative Criminal Legislation, 121
U. Pa. L. Rev. 120, 127 (November 1972)).

     7 522 P.2d 1140 (Alaska 1974).

     8 Id. at 1141.

     9 Id. at 1141 & n.1.

     10   Id. at 1141.

     11   Id. at 1142.

     12   Id. (footnotes omitted).

13   Id.

     14    Id.  at 1142 n.6. (citing P.H. v. State, 504 P.2d  837
(Alaska  1972), superseded by statute on other grounds as  stated
in Matter of F.S., 586 P.2d 607 (Alaska 1978)).

     15   504 P.2d at 841.

     16   522 P.2d at 1142 & n.5, n.6.

     17   620 P.2d 690 (Alaska 1980).

     18   Id. at 692-93.

     19   Id. at 693.

     20   Id.

     21   Id.

     22   Id. (footnotes omitted).

     23   613 P.2d 272, 277 (Alaska 1980) (remanding to allow re-
sentencing on this ground); see also Zurfluh, 620 P.2d at 693 n.5
(noting  that  the  reasoning  in  Zurfluh  applies  equally   to

     24   Sundberg II, 652 P.2d 113 (Alaska App. 1982).

     25   Id. at 114-15.

26     Sundberg  I,  636  P.2d  619,  620  (Alaska  App.   1981);
Sundberg II, 652 P.2d at 115 (majority opinion), 117 (Coats,  J.,

     27   Sundberg II, 652 P.2d at 115.

     28   Id.

     29   Id. (citing In re Estrada, 408 P.2d 948 (Cal. 1965) and
State v. Tapp, 490 P.2d 334 (Utah 1971)).

     30   490 P.2d 334.

     31   Id. at 335-36 (footnotes omitted in original).

     32   Sundberg II, 652 P.2d at 116.

33    Id.;  see  also Whittlesey v. State, 626  P.2d  1066,  1068
(Alaska  1980)  (stating that sentencing provisions  in  the  new
criminal code were useful and relevant in the determination of an
appropriate  sentence  even  though not  binding  in  Whittleseys
case); Bolhouse v. State, 687 P.2d 1166, 1174 (Alaska App.  1984)
(in  applying the Austin rule, finding it appropriate to consider
recent  amendments  to  the statutes increasing  the  presumptive

     34   Sundberg II, 652 P.2d at 116.

     35   778 P.2d 1156 (Alaska App. 1989).

     36   Id. at 1157.

     37   Id. at 1158.

     38   Id. at 1159.

     39   Id. at 1158.

40    Id.  at  1159;  see also Tapp, 490 P.2d at 336  (concluding
that a defendant incurs no penalty until sentencing, and that  no
penalty is affected in violation of Utahs saving statute  if  the
defendant  is  subject to the more lenient law in effect  at  the
time of his sentencing).

     41   Helton, 778 P.2d at 1160.

     42    See,  e.g.,  Estrada, 408 P.2d at 953  (A  legislative
mitigation  of  the penalty for a particular crime  represents  a
legislative  judgment that the lesser penalty  or  the  different
treatment  is  sufficient  to meet the  legitimate  ends  of  the
criminal  law  ... . [I]t is safe to assume, as the  modern  rule
does, that it was the legislative design that the lighter penalty
should  be  imposed  in  all cases that  subsequently  reach  the
courts.);  Litsey v. District Court, 565 P.2d 1343,  1344  (Colo.
1977)  (defendant was entitled to the benefit of  change  in  law
reducing  look-back  for prior convictions in  habitual  criminal
statute  from  lifetime  to  ten  years  because  the  defendants
conviction  was  still  on appeal; where  amendatory  legislation
mitigates penalties for crimes, one convicted of those crimes  is
entitled to the benefits of that legislation if relief is  sought
before  finality has attached to the conviction);  State  v.  Von
Geldern,  638 P.2d 319, 322-23 (Haw. 1981) (ameliorative  purpose
of  law giving courts discretion to depart from mandatory minimum
sentences   and  legislatures  established  pattern  of   conduct
demonstrated intent to apply law to defendants whose appeals were
still  pending); Elkins v. State, 659 N.E.2d 563, 565 (Ind.  App.
1995)  (when a defendant is found guilty of an offense, he is  to
be  sentenced in accordance with the statute in force at the time
the  offense was committed unless an amendment to the statute  is
effective prior to sentencing and the amendment provides  for  an
ameliorative  penalty; defendant was therefore  entitled  to  the
benefit of a more lenient habitual offender statute in effect  at
the  time  of  sentencing); State v. Wiese, 201 N.W.2d  734,  737
(Iowa   1972)   (ameliorative  sentencing  statute   applied   to
defendants  cases  because valid final  judgments  had  not  been
entered  as of the effective date of the new statute); People  v.
Schultz,  460  N.W.2d  505, 509-10 (Mich. 1990)  (inferring  from
ameliorative  purpose of new sentencing law a legislative  intent
to  apply the new law to cases pending in the trial court and  on
direct  appeal);  State v. Coolidge, 282 N.W.2d 511,  514  (Minn.
1979)  (a statute mitigating punishment is applied to [all]  acts
committed before its effective date, as long as no final judgment
has  been  reached); State v. Wilson, 926 P.2d  712,  716  (Mont.
1996)   (defendant   is  entitled  to  be  sentenced   under   an
ameliorative statute in effect on the date of sentencing  if  the
repealing  statute contains no saving clause); State v. Randolph,
183  N.W.2d  225,  228 (Neb. 1971) (where a criminal  statute  is
amended by mitigating the punishment, after the commission  of  a
prohibited act but before final judgment, the punishment is  that
provided  by  the  amendatory  act  unless  the  Legislature  has
specifically provided otherwise); In re Smigelski, 154 A.2d 1,  8
(N.J.  1959)  (when a statute is ameliorative it may  be  applied
retroactively); People v. Oliver, 134 N.E.2d 197, 201 (N.Y. 1956)
(where  an ameliorative statute takes the form of a reduction  of
punishment  for a particular crime, the law is settled  that  the
lesser  penalty may be meted out in all cases decided  after  the
effective  date of the enactment, even though the underlying  act
may  have been committed before that date); State v. Pardon,  157
S.E.2d  698,  702  (N.C. 1967) (When ... the law  under  which  a
defendant  was  convicted  is amended pending  appeal  so  as  to
mitigate  the  punishment,  it is  logical  to  assume  that  the
legislature intended the new punishment, which it now feels  fits
the  crime, to apply whenever possible.); State v. Cummings,  386
N.W.2d 468, 472 (N.D. 1986) (defendant was entitled to benefit of
statute  that went into effect after his offense but  before  his
sentencing;  unless  otherwise indicated by the  Legislature,  an
ameliorating amendment to a criminal statute is reflective of the
Legislatures  determination that the  lesser  punishment  is  the
appropriate  penalty for the offense); State  v.  Macarelli,  375
A.2d  944, 947 (R.I. 1977) (defendants whose cases were not final
prior to enactment of ameliorative statute should be accorded the
more  lenient  treatment; to hold otherwise would contravene  the
obvious  legislative  purpose  behind  the  mitigation   of   the
penalty); Tapp, 490 P.2d at 335-36 (where enactment reducing  the
penalty  for  an  offense  has  become  effective  prior  to  the
conviction,  defendant  is entitled to  the  benefit  thereof  by
having penalty imposed in accordance with the law at the time  of
the  sentence); see generally Comment, Todays Law and  Yesterdays
crime:   Retroactive   Application   of   Ameliorative   Criminal
Legislation, 121 U. Pa. L. Rev. 120 (November 1972).

     43    State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985),
opinion  adopted  by State v. Andrews, 723 P.2d  85,  86  (Alaska
1986);  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.).

     44   See Helton, 778 P.2d at 1159.

     45   Id.

     46   Id. at 1160.

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