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Chinuhuk v. State (1/12/2018) ap-2580

Chinuhuk v. State (1/12/2018) ap-2580


             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@  

                            IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                


                                                                Court of Appeals Nos. A-11574, A-11599,


                                                                        A-11600, A-11716, & A-11697


                                                   Appellants,                                    Trial Court Nos. 3AN-09-9305 CR,


                                                                                                3AN-07-1674 CR, 3AN-09-9927 CR,


                                      v.                                                         4BE-06-846 CR, & 2NO-07-832 CR


STATE OF ALASKA,                                                                                                      O P I N I O N



                                                   Appellee.                                           No. 2580 - January 12, 2018


                          Consolidated Appeals from the Superior Court, Third Judicial  


                          District, Anchorage, Gregory A. Miller,  Kevin M. Saxby, and  


                          Michael R. Spaan, Judges.  


                         Appearances:                Renee  McFarland,  Assistant  Public  Defender,  


                          and  Quinlan  Steiner,  Public  Defender,  Anchorage,   for  the  


                         Appellants.              Timothy W. Terrell, 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 Hanley,  


                          District 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-----------------------

                         In 2006, the Alaska Legislature amended AS 12.55.125 (the statute that                                                          


prescribes the sentences for felonies) by adding subsection (o).                                                                             

                                                                                                                          This new subsection  


created a special sentencing rule that applied to most defendants convicted of sexual  


felonies (all except those defendants who are subject to a mandatory term of 99 years'  




                         Under subsection (o), the superior court was required to suspend a specified  


amount  of  the defendant's sentence of imprisonment, and to place the defendant on  


probation for a specified number of years after the defendant finished servingtheir active  


term of imprisonment.  


                         Normally, under Alaska common law, a defendant is entitled to reject a  


sentence that calls for  probation and suspended jail time (in favor of a sentence that  

                                                                          2   But AS 12.55.125(o) declared that the special  


consists wholly of active imprisonment).  

terms of probation specified in the statute "[could] not be suspended or reduced".  


                         The five defendants in this consolidated appeal were convicted of sexual  


felonies, and they were sentenced in accordance with subsection (o).  All five defendants  


received sentences that included suspended jail time, and they were all ordered to serve  


a term of probation after they completed their active terms of imprisonment.  


                         Each of the five defendants later violated the conditions of their probation.  


And at their ensuing probation revocation hearings, the defendants asked the superior  


court to (1) impose all of their remaining suspended jail time, and then (2) terminate their  


probation - even though the defendants had not yet spent the minimum number of years  


on probation specified in subsection (o).  



            Enacted by SLA 2006, ch. 14,  7.                             


            See Brown v. State, 559 P.2d 107, 111 n. 13 (Alaska 1977) (holding that a defendant 


has the right to refuse probation).  


                                                                            - 2 -                                                                       2580


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

                                                                                    In all five cases, the superior court imposed the defendants' remaining jail                                                                                                                                                                                                                                                                                                                                                                            

time, but the court refused to honor the defendants' rejection of further probation.                                                                                                                                                                                                                                                                                                                                                                                                                                          The  

 court ruled that, because subsection (o) declared that the special term of probation could                                                                                                                                                                                                                                                                                                                                                                                                                              

not   be   "suspended   or   reduced",   the   five   defendants   had   no   right   to   reject   further  

probation (and the court had no authority to end the defendants' probation) until the                                                                                                                                                                                                                                                                                                                                                                                                                                                   

 defendants had spent the minimum number of years on probation specified in the statute.                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                                    The five defendants appealed the superior court's refusal to end their terms                                                                                                                                                                                                                                                                                                                                                            

 of probation, and we consolidated these appeals for decision.                                                                                                                                                                                                                                                                                                                                  

                                            Why we reject the defendants' contention that these appeals are moot                                                                                                                                                                                                                                                                                                                                                

                                                                                    The procedural posture of this case changed in the summer of 2016, when                                                                                                                                                                                                                                                                                                                                                                

the legislature repealed AS 12.55.125(o).                                                                                                                                                                                                                         See  SLA 2016, ch. 36,  179.                                                                                                                                                                    Following the   

repeal of subsection (o), the five defendants jointly filed a motion asking this Court to                                                                                                                                                                                                                                                                                                                                                                                                                                                      

 dismiss their appeals as moot.                                                                                                                                                                         In this motion,                                                                                          the defendants argued that,                                                                                                                                                          because  

 subsection (o) had been repealed, they were now entitled to exercise their normal right                                                                                                                                                                                                                                                                                                                                                                                                                                        

under Alaska law to reject any further probation.                                                                                                                                                                                                                                                                  

                                                                                    The State opposed the defendants' motion.                                                                                                                                                                                                                                             In its opposition, the State                                                                                                                      

relied on AS 01.10.100(a) - a statute which codifies                                                                                                                                                                                                                                                                                                               the general principle that the                                                                                                                                       

 legislature's enactment or repeal of                                                                                                                                                                                              a   statute is not retroactive unless the enacting or                                                                                                                                                                                                                                                      

repealing session law declares so:                                                                                                                                                                               


                                                                                                                              (a)   The repealor                                                                                      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.                                                                                                                                   

                                                                                                                                                                                                                                                                  -  3 -                                                                                                                                                                                                                                                           2580

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

                                              More specifically, the State argued that AS 12.55.125(o) imposed a special                                                                                                                                                         

type of penalty on defendants convicted of sex offenses - a period of probation that ran                                                                                                                                                                                                       

 for the specified number of years, and that could not be suspended or reduced.                                                                                                                                                                                               Relying  

 on   AS   01.10.100(a),   the   State   argued   that   the   repeal of                                                                                                                                    AS   12.55.125(o)   did   not  

 "extinguish" this special penalty for defendants who had already been sentenced under                                                                                                                                                                                                

the   statute   (because   the   repealing   legislation   did   not   declare   that   the   repeal   was  

retroactive). Thus, the State concluded, the five defendants in this case were still subject                                                                                                                                                                                      

to a probation that could not be reduced, even if the defendants wanted to exercise their                                                                                                                                                                                                 

normal right to reject probation.                                                                               

                                              We conclude that the State is correct in asserting that the special probation                                                                                                                                               

requirement of subsection (o) continues to govern the defendants' sentences even though                                                                                                                                                                                            

 subsection (o) was repealed in 2016.                                                                                           In reaching this conclusion, we are guided by the                                                                                                              

United   States   Supreme   Court's   decision   in   Warden   of   Lewisburg   Penitentiary   v.  

Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974).                                                                                                                                                                    

                                               The defendant in                                        Marrero  was convicted of narcotics offenses under federal                                                                                                                   

 law.   Marrero was a second offender and, at that time, federal sentencing law declared                                                                                                                                                                                     

that                     defendants                                          in                 Marrero's                                             situation                                      were                           not                    eligible                             for  

                          3       But Congress later enacted a comprehensive revision of the drug sentencing  


 laws - and, under the revised law, defendants in Marrero's situation were eligible for  


parole. 4                       Based on the new sentencing law, Marrero sought a judicial ruling that he was  


 eligible to apply for parole.  


                                               The Supreme Court ruled that the older version of the law continued to  


 govern Marrero's case.                                                                  In reaching this conclusion,  the Supreme Court relied on a  



                       Marrero , 417 U.S. at 654-55, 94 S.Ct. at 2533-34.



                       Id., 417 U.S. at 655, 94 S.Ct. at 2534.


                                                                                                                                              - 4 -                                                                                                                                        2580

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

provision of the new sentencing law which declared that the new law did not affect                                                                                        

"prosecutions for any violation of law occurring [before the effective date of the new                                                                                        

law]".   The Supreme Court held that the older (and now repealed) sentencing provisions                                                                          

were a substantive component of any "prosecution" under the old law -                                                                                           and,   thus,  

Congress's repeal of the old law did not affect sentences imposed under that old law.                                                                                               5  

                            Of course, the present case is not governed by federal law.   Rather, it is  


governed by the provisions of AS 01.10.100(a) - but the underlying principle  is the  


same.  AS 01.10.100(a) declares that the repeal of a law "does not release or extinguish  


any penalty [or] liability incurred ...  under [the former] law,  unless the repealing or  


amending act so provides expressly."  The statute further declares that the former law  


"shall be treated as remaining in force for the purpose of sustaining any ... prosecution  


for the enforcement of the ... penalty ... or liability."  


                            We interpret this statute to mean that the special probation clause of the  


now-repealed AS 12.55.125(o) continues to govern the defendants' cases.                                                                                               For this  


reason,  the legislature's repeal of AS 12.55.125(o) has not mooted the defendants'  




               Why  we  conclude  that  defendants  sentenced  under  the  now-repealed  


              AS 12.55.125(o) are not entitled to reject the special term of probation  


              required by that statute  


                            The   legislature   enacted                                AS   12.55.125(o)   in   2006,   as   part   of   a  


                                                                                                                     6    The legislature's purpose in  

comprehensive reform of sex offense sentencing laws.  



              Id., 417 U.S. at 657-58, 94 S.Ct. 2535.                                        



              See generally the "Letter of Intent" accompanying Senate Bill 218 (24th Legislature), 


found at 2006 Senate Journal 2207-2215 (February 16, 2006).  Although AS 12.55.125(o)  



                                                                                       - 5 -                                                                                 2580

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

amending the sentencing provisions for sex offenders was to provide "longer sentences                                                      

for, and closer supervision of, convicted sex offenders."                                             7  

                        The  motive  for  requiring  closer  post-incarceration  supervision  of  sex  


offenders was the legislature's belief that most sex offenders probably could not be  


rehabilitated. 8   For example, one early proposal- Senator Gretchen Guess's Senate Bill  


223 - would have imposed a mandatory lifetime probation on any person convicted of  


                                                                                                            9     As  ultimately  enacted,  

first-,  second-,  or  third-degree  sexual  abuse  of  a  minor.  


AS 12.55.125(o) called for a graduated series of probation periods:  a minimum of 15  


years' supervision for defendants convicted of unclassified sexual felonies, a minimum  


of 10 years' supervision for defendants convicted of class A or class B sexual felonies,  


and a minimum of 5 years' supervision for defendants convicted  of  class C sexual  




                        These  mandated  periods  of  probation  supervision  were  meant  to  be  


accompanied by sex offender treatment and periodic polygraph examinations.  The idea  




was ultimately enacted as part of Senate Bill 218, the origin of special terms of probation for  


sex offenders can be traced back to three bills introduced on January 9, 2006:  Senate Bill  


218 sponsored by Senator Con Bunde, Senate Bill 223 sponsored by Senator Gretchen Guess,  


and House Bill 353 sponsored by Representatives Mark Neuman and Bob Lynn. See SB 218,  


SB 223, and HB 353 (24th Legislature), available at:  




            Letter of intent accompanying Senate Bill 218, 2006 Senate Journal 2207 (February 


16, 2006).  



            Id.  at 2211:  "The failure of treatment in rehabilitating most sex offenders provides 


little hope that longer sentences will deter future crimes."   During committee hearings,  


various individual legislators expressed similar views.  See, for example, the remarks of Rep.  


Mark Neuman found in the minutes of the House Judiciary Committee for February 8, 2006  


@ 1:59:59.  



            See Senate Bill 223,  10 (24th Legislature).  


                                                                          - 6 -                                                                     2580


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

was that, even if sex offenders could not be rehabilitated, they could at least be closely                                                                                                                                                                                                                                             

monitored   and deterred from committing new offenses following their release from                                                                                                                                                                                                                                                              

prison. 10  


                                                        The  legislature  was  aware  that,  under  Alaska  law,  defendants  could  


normally reject probation, so the legislators tried to draft the new probation requirements  


 so that defendants would not have a right to reject this post-release supervision.  


                                                       We  note,  in  particular,  the  testimony  of  Deputy  Commissioner  of  


Corrections Portia Parker to the Senate Finance Committee on February 2, 2006, and the  


 statement of Senator Con Bunde to the House Judiciary Committee on February 15,  




                                                       In  Ms.  Parker's testimony,  she informed the Committee that some sex  


offenders chose to reject probation or parole because they did not want to be subjected  


to polygraph monitoring - and she told the Committee that the provisions of Senate Bill  


                            See   the   Letter   of   Intent   accompanying Senate                                                                                                                                           Bill   218,   2006   Senate   Journal   at  

2211-12:   "For most offenders[,] the hope for deterrence in Senate Bill 218 is provided by                                                                                                                                                                                                                                                                

the increased probation periods and the use of the polygraph while on probation or parole.                                                                                                                                                                                                                                                                             

The polygraph will help to provide an early warning system during supervision that will put                                                                                                                                                                                                                                                             

the probation or parole officer on notice that corrective action is necessary due to signs of                                                                                                                                                                                                                                                                

deception or offending behavior."                                                           

              See also the testimony of Deputy Commissioner of Corrections Portia Parker to the                                                                                                                                                                                                                                                         

 Senate Finance Committee (Minutes of the Senate Finance Committee for February 2, 2006                                                                                                                                                                                                                                                          

@9:38:18).                                        Ms. Parker told the Committee that mandatory probation "would guarantee that                                                                                                                                                                                                                         

the offender will be on supervision for at least some period of time; they will be in treatment,                                                                                                                                                                                                                             

and they will be polygraphed."                                                                                          

              In a similar vein, Rep. Mark Neuman told the House Judiciary Committee that mandatory                                                                                                                                                                                                                          

probation for sex offenders, accompanied by regular                                                                                                                                                                  polygraph testing, would reduce the                                                                                                

number of sexual assaults.                                                                                See Minutes of the House Judiciary Committee for February 2,                                                                                                                                                                                       

2006 @ 1:59:59.                                                       

                                                                                                                                                                         -  7 -                                                                                                                                                                    2580

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

218 were intended to make sure that all sex offenders would undergo some period of                                                                                                                 


post-release supervision and monitoring.                                                           

                               In Sen. Bunde's statement to the House Judiciary Committee, he explained  


that the new law called for mandatory probation supervision because, under the current  


law, some sex offenders chose to serve their full sentence of imprisonment in order to  


avoid any supervision after they were released.  Sen. Bunde told the Committee that the  


new periods of mandatory probation could not be suspended or reduced, and that this  


mandatory probation would include periodic polygraph examinations. 12  


                               In the present appeal, the defendants acknowledge this legislative history,  


and they concede  that  the purpose of AS 12.55.125(o) was to require all felony sex  


offenders to undergo a mandatory period of  supervision following their release from  


prison.   However, the defendants argue that there is  no indication that the legislature  


intended to alter the normal rule that probation must be accompanied by a suspended  


term of imprisonment - a term of imprisonment that can be imposed if the defendant  


violates the conditions of probation. 13  



                Testimony of Portia Parker, Minutes of the Senate Finance Committee for February                                                                                     

2, 2006 @ 9:38:18.                            


                Minutes of the House Judiciary Committee for February 15, 2006 @ 2:34:08.  



                See  Franzen v. State                        , 573 P.2d55,57                     (Alaska 1978), where the Alaska                                       Supreme Court  

declared that it was unaware of any authority under Alaska law                                                                                 for   a court to sentence a                            

defendant to probation without imposing a corresponding suspended term of imprisonment.                                                                                                                    

(The supreme court addressed this point                                                    sua sponte                :    the issue had not been raised by the                                    

parties.) See also                     Figueroa v. State                     , 689 P.2d 512, 514 (Alaska App. 1984), where this Court                                                       


held that a suspended term of imprisonment is not a legally complete part  of  a criminal  


sentence unless it is accompanied by a period of probation.  


        (Our decision in Figueroa cites Manderson v. State , 655 P.2d 1320, 1324 (Alaska App.  


 1983),  for  the  proposition  that  a  period  of  probation  is  "meaningless"  without  an  


                                                                                               -  8 -                                                                                         2580

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

                          It is true that, under Alaska law, probation is normally a counterpart to a                                                                  

suspended or partially suspended sentence.                                             It is a contract between the court and the                                  

defendant:    the defendant                          consents to be supervised and to live under the conditions                                      

imposed by the court in exchange for the court's agreement to suspend all or part of the                                                                           

                                                                       14    And because this probation is a contract (and  

defendant's   term of imprisonment.                                                                                                                             

because  this  contract  allows  a  judge  to  control a  defendant's  life  in  ways  that  the  


defendant may deem more burdensome than normal criminal penalties), a defendant is  


free to refuse probation and to insist on a normal sentence. 15  


                          But  in  State  v.  Auliye,  57  P.3d  711  (Alaska  App.  2002),  this  Court  


recognized the legislature's authority to create a different kind of "probation" - a period  


of non-custodial supervision that is mandatory rather than contractual, and which has no  


relationship to whether a portion of the defendant's sentence is suspended.  Id.  at 717.  


                          The legislative history of AS 12.55.125(o) demonstrates that this is what  


the legislature had in mind when it created mandatory periods of  probation for sex  


offenders.  The legislature intended for all felony sex offenders to be actively supervised  


following their release from custody, and the legislature wanted to make sure that these  


offenders could not avoid this supervision by rejecting probation.  


                          In this regard,  we note that in 2007 (i.e.,  the very  next year after the  


legislature created this mandatory probation for sex offenders), the legislature took action  


to make sure that the conditions of this mandatory probation remained enforceable even  




accompanying term of suspended jail time.  See Figueroa, 689 P.2d at 514.  However, an  


examination of the text of Manderson shows that it was the defendant Manderson, and not  


this Court, who characterized probation without suspended jail time as "meaningless".)  




             State v. Auliye, 57 P.3d 711, 717 (Alaska App. 2002).  



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


                                                                                - 9 -                                                                           2580

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

if the defendant had already served their entire term of imprisonment -                                                                                                                                                                                                                                                                                                                              i.e., even if there                                        

was   no   longer any suspended term of incarceration for the court to impose on the                                                                                                                                                                                                                                                                                                                                                                                           

 defendant.    The legislature accomplished this goal by enacting AS 11.56.759, a statute                                                                                                                                                                                                                                                                                                                                                           

that makes it a separate crime for a sex offender to violate                                                                                                                                                                                                                                                                                               the   conditions of their                                                                                   

probation in this situation.                                                                                                                       

                                                                           We accordingly uphold the rulings of the superior court that the defendants                                                                                                                                                                                                                                                                                

in these cases must serve out their statutorily mandated periods of probation, even though                                                                                                                                                                                                                                                                                                                                                                  

the   defendants   have   no   further   term   of   imprisonment   remaining from                                                                                                                                                                                                                                                                                                                                      their   original  


                                      The other issues raised in this appeal                                                                                                                                       

                                                                           The defendants argue that even if the superior court correctly ruled that they                                                                                                                                                                                                                                                                                                                   

must serve the periods of probation mandated by AS 12.55.125(o), the superior court's                                                                                                                                                                                                                                                                                                                                                                      

 authority   is   limited   as   to   the   types   of   probation   conditions   that   can   be   imposed   in  

 connection with this mandatory                                                                                                                                                     probation - and that the superior court exceeded its                                                                                                                                                                                                                                            

 authority with regard to some of the probation conditions imposed on the defendants.                                                                                                                                                                                                                                                                                                                                                                                                                

We conclude that we need not resolve these contentions, because the defendants can                                                                                                                                                                                                                                                                                                                                                                                           

raise their arguments in the superior court.                                                                                                                                                                                                   

                                                                            Some   of   the   defendants   also   argue   that   the   superior   court   gave   them  

insufficient notice of precisely which conditions of probation they would have to abide                                                                                                                                                                                                                                                                                                                                                                             

by.     We   agree   that   the   defendants   are   entitled   to   fair   notice   of   their   conditions   of  

probation, but again, the defendants should raise this problem with the superior court.                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                           We also note that some                                                                                                                       of   the probation conditions imposed on these                                                                                                                                                                                              

 defendants have been questioned or specifically disapproved by this Court in previous                                                                                                                                                                                                                                                                                                                                                            

 decisions.   The defendants are free to raise these problems in the superior court.                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                  -   10 -                                                                                                                                                                                                                                2580

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

                                                                             Defendant   Christopher   Wasili   raises   a   separate   argument   relating   to  

AS 11.56.759, the statute that imposes criminal penalties on sex offenders who violate                                                                                                                                                                                                                                                                                                                                                                                

their probation when there is                                                                                                                                               no   further term of imprisonment remaining from their                                                                                                                                                                                                                                               

 original sentence.                                                                                Wasili argues that because his offense pre-dates the enactment of this                                                                                                                                                                                                                                                                                                               

 statute,   it would violate the                                                                                                                                 ex post facto                                                                     clause if he violated the conditions                                                                                                                                                                             of   his  

mandatory probation and the State then prosecuted him under this statute.                                                                                                                                                                                                                                                                                                                                                               

                                                                             The State argues that this issue is not ripe, because the State has not alleged                                                                                                                                                                                                                                                                                                         

 any violation of Wasili's conditions of probation, and there is no pending prosecution                                                                                                                                                                                                                                                                                                                                                 

 against Wasili under AS 11.56.759.                                                                                                                                                                        We agree that the issue is not ripe.                                                                                                                                                                        


                                                                             The superior court's rulings that the defendants must serve the periods of                                                                                                                                                                                                                                                                                                                                         

probation mandated by AS 12.55.125(o) are AFFIRMED.                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                      -   11 -                                                                                                                                                                                                                                     2580

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