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Penetac v. Municipality of Anchorage (1/11/2019) ap-2631

Penetac v. Municipality of Anchorage (1/11/2019) ap-2631


          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-12804  

                                         Appellant,                        Trial Court No. 3AN-16-4699 CR  


                                                                                          O P I N I O N  


                                         Appellee.                            No. 2631 - January 11, 2019  

                    Appeal   from    the   District   Court,   Third   Judicial   District,  

                    Anchorage, Douglas Kossler, Judge.  

                    Appearances:            Shaul      L.     Goldberg,        Denali       Law       Group,  

                    Anchorage,  for  the  Appellant.    Sarah  E.  Stanley,  Assistant  

                    Municipal  Prosecutor,   and  William  D.  Falsey,  Municipal  


                    Attorney, Anchorage, for the Appellee.  

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



                     Judge ALLARD.  

                    Following a jury trial, Eric Scott Penetac was found guilty of two counts          


of child neglect under the Anchorage Municipal Code (AMC).                                                                    

                                                                                                     The two counts were  


merged at sentencing, for a single municipal class A misdemeanor conviction.  Penetac  

     1    See AMC 08.10.040.B.3 and AMC 08.10.040.B.7.  

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

was subsequently sentenced to 365 days in jail with 290 days suspended (75 days to                                                                                                                                           


                                      On appeal, Penetac argues that his sentence is illegal because it exceeds the                                                                                                                       

30-day presumptive maximum sentence that he would likely have faced if he had been                                                                                                                                                   

convicted of a class A misdemeanor under state law.                                                                                                   According to Penetac, the more                                               

lenient law that governs sentencing for state misdemeanors (specifically, AS 12.55.135)                                                                                                                                                              

preempts   any   inconsistent   municipal   sentencing   law.     Penetac   also   argues   that   the  

Municipality's own code (specifically, AMC 08.05.020.E) provides that all sentencing                                                                                                                                

under the municipal code is governed by AS 12.55.                                                                                                 Lastly, Penetac argues that failure                                           

to apply the state sentencing scheme to municipal offenders violates the Equal Protection                                                                                                                             

Clause of the Alaska Constitution.                                                              2  


                                     For  the  reasons  explained  here,  we  reject  these  arguments  and  affirm  


Penetac's sentence.  


                    Why we conclude that AS 12.55.135 does not control Penetac's sentencing  


                                     Penetac was convicted of child neglect under the Anchorage Municipal  



Code.  The municipal code classifies child neglect as a class A misdemeanor,  and the  


code  authorizes  sentences  of  up  to  one  year  in  jail  for  all  municipal  class  A  



                                               In contrast, AS 12.55.135, the Alaska statute setting out the permissible  


sentences for state misdemeanors, limits sentences for most state class A misdemeanors  



to 30 days unless certain circumstances (not present here) are demonstrated. 

         2         Alaska Const. art. I,  1.  

          3        AMC 08.10.040.D.  

         4         AMC 08.05.020.H.1.  

          5        See AS 12.55.135(a)(1), (2).  

                                                                                                                  - 2 -                                                                                                             2631

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

                            On appeal, Penetac argues that, in light of this difference between the state                                                                  

sentencing provision and the municipal code, the district court was required to sentence                                                                          

him under the more lenient state sentencing law.                                             

                            Penetac's   argument   is   based   on   a   misunderstanding   of   the   interaction  

between municipal codes and state law under the Alaska Constitution's "home rule"                                                                                        



                         As a home rule city, Anchorage is granted relatively broad powers; the state  


constitution declares that "[a] home rule borough or city may exercise all legislative  



powers not prohibited by law or by charter." 


                            When a home rule municipal ordinance is challenged as invalid under state  


law, we apply the test set out by the Alaska Supreme Court more than forty years ago in  


Jefferson v. State :  


                            A municipal ordinance is not necessarily invalid in Alaska  


                            because it is inconsistent or in conflict with a state statute.  


                            The question rests on whether the exercise of authority has  


                            been prohibited to municipalities. The prohibition must be  


                            either by express terms or by implication such as where the  


                            statute and ordinance are so substantially irreconcilable that  


                            one cannot be given its substantive effect if the other is to be  



                            accorded the weight of law. 


Thus, the fact that the penalties for offenses designated "class A misdemeanors" under  


the municipal code may be inconsistent with the penalties for some offenses designated  


as "class A misdemeanors" under state law does not, by itself, render the municipal  



penalties unlawful. 

       6      Alaska Const. art. X,  11.  

       7      Id.  

       8      Jefferson v. State , 527 P.2d 37, 43 (Alaska 1974).  

       9      See id.  

                                                                                     - 3 -                                                                               2631

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

                         We note that there is, in fact, a statute - AS 29.25.070(g) - that prohibits                                              

municipalities (including home rule municipalities) fromimposing a greater punishment                                                         

for a municipal offense if there is a "comparable state offense under AS 11 or AS 28 with                                                                  



elements that are similar to the municipal ordinance."                                                  But Penetac does not argue that  


there is a state crime comparable to the Anchorage municipal offense of child neglect.  


In the absence of any such showing, we reject Penetac's argument that AS 12.55.135  


controls his sentence as a matter of state law.  


             Why we reject Penetac's interpretation of AMC 08.05.020.E  


                         Penetac  also  argues  that  even  if  AS  12.55.135  does  not  control  his  


sentencing as a matter of state law, the Municipality of Anchorage's own code explicitly  


incorporates  AS  12.55  into  its  sentencing  scheme.                                                    Thus,  according  to  Penetac,  


AS 12.55.135 controls Penetac's sentence as a matter of municipal law.  In support of  


this claim, Penetac points to AMC 08.05.020.E, which provides:  


                                      E. Except as provided in subsection D. of this section,  


                         for a class A or class B misdemeanor, the court in the interest  


                         of justice may suspend part or all of a sentence imposed or  


                         suspend imposition of sentence and place the defendant on  


                         probation.  In sentencing under this Code, the provisions of  


                         AS 12.55 shall apply.   This subsection is not applicable to  


                         minor offenses. (Emphasis added.)  


                         Penetac  contends  that  the  second  sentence  of  this  provision  -  "In  


sentencing under this Code, the provisions of AS 12.55 shall apply" - means that  


AS 12.55 controls all sentencing for municipal offenses that are not minor offenses.  If  


we were to read this sentence literally and out of context, we would be forced to agree  


with this interpretation.  

       10    SLA 2016, ch. 36,  113.  

                                                                             - 4 -                                                                       2631

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

                       But we are "obliged to avoid construing statutes in a way that leads to                                                      

patently   absurd   results   or   to   defeat   of   the   obvious   legislative   purpose   behind   the  



                  Penetac's interpretation of AMC 08.05.020.E violates this principle because  


it would render the rest of AMC 08.05.020, which sets out the municipal sentencing  



scheme in some detail, largely superfluous. 


                       There is also nothing in the relevant legislativehistoryto support Penetac's  



interpretation.  Prior to 1982, former AMC 08.05.020.E                                               stated:  


                                   E.  Except  as  provided  in  subsection  D  of  this  


                       ordinance, the court in the interest of justice may suspend  


                       part or all of a sentence imposed or suspend imposition of  


                       sentence, and place the defendant on probation.   In those  


                       cases in which probation is authorized under this code, the  


                       provisions  of  AS  12.55.080,  AS  12.55.085,  12.55.090,  

                       12.55.100 and 12.55.110 shall apply, except that no person  


                       may be placed on probation under this code for a period of  



                       more than one year.  (Emphasis added.) 


                       In  1982,  this last sentence was changed  to  the  current version  - "In  



sentencing under this Code, the provisions of AS 12.55 shall apply."                                                           There was no  


significant legislative discussion of this change. However, the accompanying Assembly  

      11    Williams v. State, 853 P.2d 537, 538 (Alaska App. 1993).  

      12    See State v. Fyfe          , 370 P.3d 1092, 1099 (Alaska 2016) (explaining that, in interpreting  

a statute, courts will "presume that no words or provisions are superfluous and that the   

legislature intended every word, sentence, or provision of a statute to have some purpose,         

force, and effect") (internal citations omitted).  



            AMC 08.05.020.E was originally codified as AMC 08.50.020.E and subsequently  

renumbered in 1998.  See AO 98-59(S),  1.  

      14    AMC 08.50.020.E (1976 version).  

      15    AMC 08.05.020.E.  

                                                                       -  5 -                                                                 2631

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

Memorandum indicates that the intended purpose of this change was to eliminate the                                                                  


one-year cap on probation.                                                                                                                       

                                                   There is no suggestion that the Assembly intended to make  



any substantive change to the rest of the sentence.                                        Nor is there anything to suggest that  


the Assembly intended to make all municipal sentencing governed by AS 12.55, thereby  



rendering most of the rest of AMC 08.05.020 superfluous. 


                        As a general rule, "[a]ll sections of a statute should be construed together  



so that all have meaning and no section conflicts with another."                                                        Because Penetac's  


interpretation of AMC 08.05.020.E would render the other subsections of that provision  


meaningless,  we  reject  his  proposed  interpretation.                                                Instead,  we  conclude  that  


AMC08.05.020.Eshould be interpreted as requiring the courts to follow only those Title  


 12 provisions that apply directly to defendants sentenced under subsection E - i.e.,  


those provisions that govern when and how a court may, in the interests of justice,  


"suspend part or all of a sentence imposed or suspend imposition of sentence and place  



the defendant on probation." 

      16    See  Municipality of Anchorage Assembly Memorandum, No. AM 881-82 (Aug. 17,       


      17    See id.

      18    See id.

      19    Monzulla v. Voorhees Concrete Cutting , 254 P.3d 341, 345 (Alaska 2011) (internal

citation omitted).  

      20    AMC 08.05.020.E.  

                                                                         -  6 -                                                                  2631

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

                  Penetac's equal protection argument                                        

                                    Penetac also argues that his municipal sentence violates equal protection                                                                                                 

because it subjects him to a greater penalty than the 30-day presumptive maximum                                                                                                                              

sentence that most class A misdemeanors carry under state law.                                                                                                   

                                    This argument is without merit.                                                         As already mentioned, Penetac does not                                                 

claim that he was convicted of a municipal offense with elements comparable to a state                                                                                                                                      

offense.     Nor   has  he   otherwise shown that,                                                                           simply because he was convicted                                                                  of a   

municipal offense designated as a class A misdemeanor under the municipal code, he is                                                                                                                                                 

thereby   similarly   situated   to   persons   convicted   of   offenses   designated   as   class   A  


misdemeanors under state law.                                                                                                                                                                                                        

                                                                                           Penetac also ignores the fact that not all state class A  


misdemeanors are subject to the 30-day cap.   Indeed, there are several state class A  


misdemeanors that are exempt from this limitation and subject to the same penalty range  



that Penetac himself faced.                                                  Accordingly, we find no merit to Penetac's equal protection  



         21       See   Planned  Parenthood  of  the  Great  Northwest  v.  State,   375  P.3d  1122,  1135  

(Alaska 2016) ("When equal protection claims are raised, the question is whether two groups   

of people who are treated differently are similarly situated and therefore are entitled to equal                                

treatment under the constitution.") (internal citations omitted).  



                  Class A misdemeanors that are not subject to the 30-day cap include: assault in the  


fourth degree, sexual assault in the fourth degree, sexual abuse of a minor in the fourth  


degree, indecent exposure in the second degree in front of a minor, sending an explicit image  


of a minor, and certain harassment in the first degree. See AS 12.55.135(a)(1)(D)-(E).  In  


addition, the 30-day cap also does not apply to crimes with mandatory minimum sentences  


of 30 days or more, crimes where the trier of fact finds the "most serious" aggravator, and  

cases in which a defendant has past criminal convictions similar in nature to the offense for  

which the defendant is being sentenced.  See AS 12.55.135(a)(1)(A)-(C).  

                                                                                                               -  7 -                                                                                                       2631

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


                       The judgment of the district court is AFFIRMED.                                                                                

                                                                                                                      -  8 -                                                                                                                                      2631

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