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Sapp v. State (9/23/2016) ap-2523

Sapp v. State (9/23/2016) ap-2523


            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-11755  

                                                Appellant,                               Trial Court No. 3AN-13-402 CR  


                                                                                                      O  P  I  N  I  O  N  

STATE OF ALASKA,                                                                                  as revised on rehearing 

                                                Appellee.                                No. 2523 - September 23, 2016  

                        Appeal   from  the  Superior  Court,   Third  Judicial  District,  


                        Anchorage, Michael L. Wolverton, Judge.  

                        Appearances:   Callie Patton Kim, Assistant Public Defender,  


                        and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                        Appellant.            Eric  A.  Ringsmuth,  Assistant  Attorney  General,  


                        Office of Criminal Appeals, Anchorage, and Craig W. Richards,  


                        Attorney General, Juneau, for the Appellee.  

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


                        Superior Court Judge. *  


                        Judge MANNHEIMER.  

                        One morning in January 2013, Barry Bernard Sapp Jr. dropped his wife off                                                       

at a downtown Anchorage office of the Alaska Department of Corrections.                                                                   

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

Constitution and Administrative Rule 24(d).  

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

                                                 While Sapp was sitting in his car in front of the office, he was approached                                                                                                                                                       

by a probation officer. This probation officer (who was not supervising Sapp) told him,                                                                                                                                                                                                                      

"Mr. Sapp, I'd like you to come [into] the office for [a] conversation."                                                                                                                                                                                             

                                                 Sapp told the probation officer, "Okay", and he began to maneuver his car                                                                                                                                                                                        

as if to park it on the street near the office.                                                                                                             But then Sapp activated the locks on his car                                                                                                          

doors.   The probation officer tried fruitlessly to pull open the door handle, and then he                                                                                                                                                                                                                          

summoned several other Corrections staff.  The Corrections staff stood around Sapp's                                                                                                                                                                                    

car and directed him to pull over and park the car.                                                                                                                                       

                                                 Instead, Sapp "peel[ed] out" and drove away at high speed - fishtailing,                                                                                                                                                             

weaving through traffic, and ignoring traffic signals.                                                                                                                                            He collided with another vehicle,                                                             

and then he drove off without stopping.                                                                                                             

                                                 For these actions, Sapp was convicted of three crimes: failing to stop at the                                                                                                                                                                                    


direction of a peace officer, reckless driving, and leaving the scene of an accident.                                                                                                                                                                                                                              In  


this appeal, Sapp challenges only one of these convictions:  his conviction for failing to  


stop at the direction of a peace officer.  


                                                 Sapp concedes that the probation officer directed him to park his car and  


come into the Corrections office for a conversation, and that he drove away instead of  


complying with the probation officer's directive.  But the statute Sapp was convicted of  


violating - AS 28.35.182 - requires proof that a driver "knowingly fail[ed] to stop as  


soon as [was] practical and ... reasonably safe ... under the circumstances when requested  


or signaled to do so by a peace officer."  


                                                 Sapp argues that we should reverse his conviction for failing to stop at the  


direction of a peace officer because the probation officer who directed him to park his  

             1           AS 28.35.182(a), AS 28.35.400, and AS 28.35.050(b), respectively.  

                                                                                                                                                      - 2 -                                                                                                                                                   2523

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car was not a "peace officer" for purposes of this statute. As we are about to explain, we                                                                                                                                                                                                                                                                                                                                                                                                 

agree with Sapp for two reasons.                                                                                                           

                                       The definition of "peace officer" codified in AS 01.10.060(7) governs our                                                                                                                                                                                                                                                                                                                                  

                                      interpretation of AS 28.35.182, and probation officers are not "peace                                                                                                                                                                                                                                                                                                               

                                      officers" under that definition                                                                                    

                                                                            AS 01.10.060 contains various definitions that apply throughout all "the                                                                                                                                                                                                                                                                                                                               

laws of [this] state" - in other words, throughout all of the Alaska Statutes - "unless                                                                                                                                                                                                                                                                                                                                                                          

the context otherwise requires".                                                                                                                                                         

                                                                            One of the definitions codified in AS 01.10.060 is the definition of "peace                                                                                                                                                                                                                                                                                                              

officer".   According to AS 01.10.060(7), "peace officer" means:                                                                                                                                                                                                                                                                     


                                                                                                                  (A)  an officer of the state troopers;                                                                                                                                                                  

                                                                                                                  (B)  a member of the police force of a municipality;                                                                                                                                                                                                                                                 

                                                                                                                  (C)  a village public safety officer;                                                                                                                 

                                                                                                                  (D)  a regional public safety officer;                                                                                                                         

                                                                                                                  (E)  a United States marshal or deputy marshal; and                                                                                                                                                                                                                          

                                                                                                                  (F)  an officer whose duty it is to enforce and preserve                                                                                                                                                                                                     

                                                                            the public peace[.]                                                                                        

                                                                            Probation officers would not be included in this definition unless they were                                                                                                                                                                                                                                                                                                                         

to fall within the category described in subsection (F):                                                                                                                                                                                                                                                                          officers "whose duty it is to                                                                                                                                

enforce and preserve the public peace".                                                                                                                                                                                             

                                                                            But in an informal Attorney General Opinion rendered in 1977 to the                                                                                                                                                                                                                                                                                                                                         

executive director of the Police Standards Council (the arm of state government that sets                                                                                                                                                                                                                                                                                                                                                                                              

 standards   for,   and   certifies,   police   officers,   probation  officers,   parole   officers,   and  

corrections officers),                                                                                                   2                                                                                                                                                                                                                                                                                                   

                                                                                                                              the Alaska Department of Law examined each of the clauses of  

                   2                  See AS 18.65.220.  

                                                                                                                                                                                                                                         -  3 -                                                                                                                                                                                                                                     2523

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

AS 01.10.060(7) - which was numbered AS 01.10.060(6) at the time -and concluded                                                                                                                               

that the definition of "peace officer" codified in this statute                                                                                            "evidences a legislative intent                                 

to include onlypubliclyemployed lawenforcement                                                                                           officers who have full police duties."                                                              

See  informal Attorney                                      General OpinionNo.660-77-036(September 18, 1977),                                                                                                   1977 WL   

22059 at *2.              

                                    Informal Opinion No. 660-77-036 acknowledged that there was potential                                                                                                         

ambiguity in the wording of subsection (F), which speaks of all officers "whose duty it                                                                                                                                               

is to enforce and preserve the public peace". But relying upon the statutory construction                                                                                                                

principle of                      ejusdem generis                                 - that is, the principle of interpreting any individual                                                                    

member of a list by reference to the other members of the list, so as to preserve the                                                                                                                                            


common unifying principle                                                                                                                 

                                                                               - the Department of Law concluded that the wording of  


subsection (F) was limited to "publicly employed law enforcement officers who havefull  


police responsibility and who spend substantially all of their working hours performing  


these [police] functions."  Ibid.  


                                    In  the  nearly  40  years  since  the  Department  of  Law  rendered  this  


interpretation of AS 01.10.060(7), the legislature has made slight stylistic changes to the  


wording of subsection (F), but it has not amended the substance of that clause of the  


statute.   We therefore conclude that the legislature has adopted or acquiesced in the  


interpretation of AS 01.10.060(7)(F) contained in Informal Opinion 660-77-036.  And  


under that interpretation, probation officers are not "peace officers".  


                                    In its brief to this Court, the State suggests that we should not apply the  


definition of "peace officer" found in AS 01.10.060(7), but rather the definition found  


in subsection (b)(45) of AS 11.81.900.  (AS 11.81.900 is a statute that contains dozens  


of definitions applicable to Title 11 of the Alaska Statutes.)  

         3        See Adamson v. Anchorage                                               , 333 P.3d 5, 20 (Alaska 2014); West v. Anchorage, 174  

P.3d 224, 228 (Alaska 2007).  

                                                                                                               - 4 -                                                                                                          2523

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

                    The definition of "peace officer" contained in  AS 11.81.900(b)(45)  is  


arguably broader than the definition found in AS 01.10.060(7), because AS 11.81.- 


900(b)(45) defines "peace officer" as "a public servant vested by law with a duty to  


maintain public order or to make arrests, whether the duty extends to all offenses or is  


limited to a specific class of offenses or offenders". The State contends that this broader  


language includes probation officers, since probation officers are authorized to arrest  


probationers for violating the conditions of their probation.  


                    We need not decide whether the State is correct in asserting that probation  


officers fall within the definition of "peace officer" codified in AS 11.81.900(b)(45),  


because that definition does not apply to the interpretation of "peace officer" in statutes  


outside Title 11.  


                    AS 11.81.900(b) begins with the words, "In this title [i.e., Title 11], unless  


otherwise specified or unless the context requires otherwise ... ". Thus, according to the  


words of the statute, the definitions contained in AS 11.81.900(b) apply only to the  


provisions of Title 11.  Here, the State is asking us to employ one of those definitions  


when interpreting a crime codified in Title 28.  


                    According to the State, it makes sense to apply the definitions found in  


AS11.81.900(b) to all of Alaska's criminal statutes, regardlessofwhether thosecriminal  


statutes are contained in Title 11 or Title 28 or some other title of the statutes.  


                    If Alaska law contained no other definition of "peace officer", the State's  


argument might have more force.  But our legislature has codified a separate definition  


of "peace officer" in Title 1, and the legislature has expressly declared that this definition  


applies throughout the Alaska Statutes "unless the context otherwise requires".  


                    Because  "peace  officer"  is  defined  in  AS  01.10.060,  and  because  the  


legislature has declared that the definitions contained in AS 01.10.060 apply to every  


Alaska statute unless there is an affirmative reason to conclude otherwise, we reject the  


                                                               -  5 -                                                         2523

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

State's suggestion that we should use Title 11's differing definition when we interpret  


a statute found in Title 28.  The definition found in AS 01.10.060 governs our inquiry.  


                    And as we have already explained, we conclude that the legislature has  


adopted or acquiesced in the definition of "peace officer" set forth in informal Attorney  


General Opinion No. 660-77-036 -a definition that does not include probation officers.  


                    Accordingly, Sapp did not violate AS 28.35.182 when he refused to pull  


his car over at the direction of a probation officer.  


          The error in Sapp's sentence for leaving the scene of an accident  


                    Although Sapp's other convictions are unaffected by our reversal of his  


conviction for failing to stop at the direction of a peace officer, we note that there is an  


obvious  error  in  Sapp's  sentence  for  leaving  the  scene  of  a  non-injury  accident,  


AS 28.35.050(b).  


                    When the superior court sentenced Sapp for this offense, the court imposed  


a  consecutive  term  of  1  year  to  serve.                     But  the  maximum  sentence  for  violating  


AS 28.35.050(b) is 90 days' imprisonment.  See AS 28.90.010(b).  See also Walsh v.  


State, 134 P.3d 366, 371 (Alaska App. 2006) (where we discussed this point).  In other  


words, Sapp received an illegally severe sentence for this offense.  


                    We accordingly direct the superior court to re-sentence Sapp to a lawful  


term of imprisonment.  


                                                               -  6 -                                                         2523

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


                    Sapp's conviction for failing to stop at the direction of a peace officer is  


REVERSED.   Additionally, we direct the superior court to re-sentence Sapp for the  


offense of leaving the scene of a non-injury accident.  


                    We have not addressed Sapp's claim that his conviction for failing to stop  


at the direction of a peace officer should merge with his conviction for reckless driving,  


because our reversal of Sapp's failure to stop conviction moots this claim.  


                    Because  we  are  remanding  Sapp's  case  to  the  superior  court  for  re- 


sentencing  on  Sapp's  conviction  for  leaving  the  scene  of  a  non-injury  accident,  


we decline to reach Sapp's argument that the superior court erred in finding him a  


"worst offender" for purposes of his reckless driving and leaving the scene convictions.  


Sapp  can  ask  the  superior  court  to  reconsider  this  matter  during  the  re-sentencing  




                                                              -  7 -                                                         2523

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