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Yako v. State (1/24/2014) ap-2410

Yako v. State (1/24/2014) ap-2410


         The text of this opinion can be corrected before the opinion is published in the  

        Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

        errors to the attention of the Clerk of the Appellate Courts:   

                                303 K Street, Anchorage, Alaska  99501

                                          Fax:  (907) 264-0878

                          E-mail:  corrections @



                                                               Court of Appeals No. A-10858  

                                  Appellant,                  Trial Court No. 4BE-09-622 CR  


                                                                       O  P  I  N  I  O  N 


                                  Appellee.                    No. 2410  -  January 24, 2014  

                 Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                 Bethel, Leonard R. Devaney III, Judge.  

                 Appearances:  Kelly R. Taylor, Assistant Public Defender,  

                 and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                 Appellant.  Eric A. Ringsmuth, Assistant Attorney General,  


                 Office of Special Prosecutions and Appeals, Anchorage, and  


                 Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  


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



                 E. Smith, Superior Court Judge  .  

                 Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).  

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

                   Edward S. Yako was convicted of bootlegging -  i.e., selling alcoholic  

beverages without a license - in Bethel.  The issue presented in this appeal is whether  

Yako should be convicted of a felony or a misdemeanor.  

                   The  unlicensed  sale  of  alcoholic  beverages  is  normally  a  class  A  

misdemeanor.  See AS 04.16.200(a). However, the offense is a class C felony if the State  


proves that it occurred in a "local option" community - that is, in a community which  


has  voted  to  ban  or  restrict  the  sale,  importation,  and/or  possession  of  alcoholic  


beverages pursuant to one of the provisions of AS 04.11.491.  See AS 04.16.200(b).   

                    (See also Morgan v. State , 661 P.2d 1102, 1102-03 (Alaska App. 1983),  


where this Court held that the provisions of AS 04.16.200(b) are not merely factors that  


can  enhance  a  defendant's  sentence;  rather,  AS  04.16.200(b)  defines  the  separate  

substantive offense of felony bootlegging.)  

                   Yako committed his offense in April 2009. At that time, Bethel was a "dry"  


community; that is, Bethel had exercised its local option under AS 04.11.491(a)(1) to ban  


the sale of alcoholic beverages.  Accordingly, Yako was indicted for a felony.  

                   But in October 2009, while Yako's case was still pending in the superior  


court, the voters of Bethel repealed the local ban on the sale of alcohol. 1  

                                                                                                             The voters'  


decision became effective on November 1, 2009 (the first day of the month following the  



certification of the local election).               Yako was tried (and found guilty) in early February  



                   At his trial, and later at his sentencing in September 2010, Yako did not  

dispute that his offense was a felony - i.e., that the severity of his offense should be  

          1    See  (Follow "City Council" to "Council Legislation",  

then to "Resolutions"; select "2009 Resolutions", then follow "Res 09-40 Certifying the  

Results of The October 6, 2009 Regular City Election").  

          2    See AS 04.11.495(a).  

                                                           - 2 -                                                          2410  

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

judged according to the state of the law in Bethel at the time of his offense.  And Yako     

received a felony-level sentence:  60 months' imprisonment with 20 months suspended.   

                       But in March 2012, after Yako was sentenced for a probation violation, he       

filed   a motion   in   the superior court seeking                            immediate release from   prison.    In  this  

motion, Yako argued that his offense should have been treated as a misdemeanor because                  

of the intervening change in Bethel law.  

                       The superior court did not vacate Yako's felony judgement.  However, the  


court  released  Yako  from  further  correctional  supervision  -  by  modifying  Yako's  


 sentence to time served, and by terminating his probation. 3  



                       In this appeal, Yako argues that the superior court should have vacated his  

felony judgement, and should have convicted him of a misdemeanor instead, because  

Bethel repealed its local ban on the sale of alcohol before Yako was tried or sentenced  

for bootlegging.  

                       Yako  argues  that  his  case  should  be  treated  as  an  instance  where  a  


defendant is charged with violating a criminal statute, and then the statute is repealed  


before the defendant is convicted.  But the statutes that Yako was convicted of violating  


- AS 04.11.010 and AS 04.16.200(b) - have not been repealed; they are still in effect.  


The first of these statutes forbids bootlegging, and the second statute makes the offense  

a felony if the bootlegging occurs in a local option community.  


                       Yako does not challenge the fact that he engaged in bootlegging, but he  


claims that it is unfair to punish him for a felony (rather than a misdemeanor) now that  


the  citizens  of  Bethel  have  changed  their  mind  about  the  local  sale  of  alcoholic  


            3    See "Order on Motion to Modify Sentence" dated April 1, 2012, in State of Alaska  

v. Edward S. Yako , File No. 4BE-09-0622 CR.   

                                                                     - 3 -                                                                    2410  

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

                     There is some force to Yako's equitable argument - but the superior court  


has  already  acknowledged  that  Yako's  circumstances  call  for  leniency:                                          the  court  


released Yako from the remainder of his sentence.  The real question is whether Yako  

is entitled to have his felony conviction erased - or, rather, have it converted to a  


misdemeanor conviction.   

                     Yako's  case  is  analogous  to  the  situation  where  a  defendant  violates  a  


statute that makes it illegal to hunt or fish using a certain type of gear that is prohibited  


by regulation - and then, after the defendant commits this offense, the Department of  


Fish and Game decides to amend the pertinent regulation to allow the defendant's type  


of gear.   In both Yako's case and this hypothetical situation, the state legislature has  


enacted a statute which declares that people must obey the rules promulgated by a lower  


level of government - in Yako's case, the ordinances of the city of Bethel, and in the  


hypothetical case, the regulations promulgated by an administrative agency.  And in both  

instances, (1) the defendant's conduct violated the statute at the time, and (2) the statute  


remains  in  effect,  unrepealed  and  unamended,  but  (3)  the  underlying  ordinance  or  


regulation has changed.  

                     Because Yako's conduct violated a state statute, the ultimate issue here is  


whether the Alaska Legislature  would  wish to see Yako's case pursued or, instead,  


dropped due to the intervening change in Bethel's municipal law.  This is a matter of  

state government policy, not local government policy.   

                     While the City of Bethel might not have a particular interest in continuing  


to enforce its former prohibition on the sale of alcohol, the state government's interest  

is broader - for the state statutes at issue here are part of a legislative framework for  


recognizing and enforcing the local option decisions of all Alaska communities.  The  


Legislature has an independent interest in maintaining the uniformity and predictability  


of the law relating to the possession and sale of alcoholic beverages throughout the state,  


                                                               - 4 -                                                          2410

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

to the extent that uniformity and predictability is consistent with the Legislature's policy  

of allowing local communities to exercise the options listed in AS 04.11.491.  

                    One indication of the Legislature's wishes in this matter is the wording of  


AS 04.11.495, the statute that deals with a community's repeal of a local restriction on  


the possession or sale of alcoholic beverages.  Under subsection (a) of this statute, the  


repeal does not take effect immediately upon the certification of the local election, but  


rather "[on] the first day of the month following [that] certification".  The fact that the  


statute mandates this transition period, with the results of the election not taking effect  

until a future date, is difficult to reconcile with the claim that the Legislature would view  


the change in the local law as automatically excusing all past infractions.  

                    We also note that Yako's case is not analogous to past cases involving  


situations where the Legislature has reduced the penalty for a particular offense, and  

where  the  question  presented  on  appeal  is  whether  defendants  whose  criminal  acts  


pre-date the change in the law should receive the benefit of the new, reduced penalty. 4  



There has been no change in the penalties for either the misdemeanor offense of typical  


(or non-aggravated) bootlegging or the felony offense of bootlegging in a local option  


                    Thus, Yako is not arguing that he should receive the benefit of a newly  


reduced penalty for the offense of bootlegging in a local option community.  Rather,  

Yako is arguing that he should receive the lesser penalty for a different crime that he did  

not commit:  the offense of bootlegging outside a local option community.   

                    When  we  analyze  Yako's  case  in  this  fashion,  we  conclude  that  the  


Legislature would not view the result of Bethel's local election - Bethel's decision to  


          4    See, e.g., Stafford v. State, 129 P.3d 927 (Alaska App. 2006).  

                                                             - 5 -                                                           2410  

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

allow  the  sale  of  alcohol  by  properly  licensed  liquor  stores  -  as  a  justification  for  

reducing the level of offense that Yako committed.   

                Accordingly,  we  conclude  that  no  modification  of  the  superior  court's  

judgement is required.  Yako was, and remains, properly convicted of a felony offense.  

                The judgement of the superior court is AFFIRMED.  

                                               - 6 -                                          2410

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