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Swartz v. Municipality of Anchorage (2/15/2019) ap-2635

Swartz v. Municipality of Anchorage (2/15/2019) ap-2635


            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-12810  

                                              Appellant,                             Trial Court No. 3AN-14-6816 CR  


                                                                                                     O P I N I O N  


                                              Appellee.                                No. 2635 - February   15, 2019  

                       Appeal   from   the   District   Court,   Third   Judicial   District,  



                       Anchorage, Jennifer Henderson, 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.  

                       In January 2015, Caroline K. Swartz pleaded guilty to driving while license                                         


suspended or revoked in violation of the Anchorage Municipal Code.                                                                                   

                                                                                                                               Pursuant to a  


Criminal Rule 11 agreement, Swartz was sentenced to 90 days' imprisonment with 90  

      1    See Anchorage Municipal Code (AMC) 09.28.019.  

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

 days suspended, a $500 fine with $250 suspended, 3 years' probation, and 80 hours of                                                                    

mandatory community work service -                                       i.e., community work service hours that were                              

mandated by the municipal ordinance as a condition of her probation.                                                         2  


                        As part of her plea agreement, Swartz agreed that she would complete her  


 community work service hours within six months, and she further agreed that any  


uncompleted portion of the 80 hours of community work service "will convert to jail"  


if it was not completed by the court's deadline.  No conversion rate was specified in the  


plea agreement.  


                         Swartz ultimately completed only 8 hours of the mandated 80 hours of  


 community work service, leaving 72 hours uncompleted.  The Municipality petitioned  


the court to revoke Swartz's probation and argued that the 72 hours of community work  


 service  should  be  automatically  converted  into  9  days  in  jail  pursuant  to  the  plea  



                        The court held a hearing on the petition in February 2017. At that hearing,  


 Swartz argued that the court had no authority to convert her community work service to  


jail time because the Alaska legislature had recently amended state law to prevent such  


 conversions.  Swartz also argued that conversion to jail time was impermissible even  



before the change of law under our 2000 decision, State v. Fogg.                                                            The Municipality  


 argued  that  the  change  in  law  did  not  apply  to  Swartz's  case  and  that  Fogg  was  


inapplicable.   According to the Municipality, the court had the authority to convert  

      2     See  former  AMC  09.28.019.B,  C  (2014)  (requiring  court  to  impose  80  hours  of  

community  work  service  as  a  mandatory condition  of  probation  for  a  defendant's  first  


conviction for driving while license suspended/revoked); see also  former AS 28.15.291  

 (2014) (imposing the same requirement under state law). In 2016, both the Municipality and  


the State eliminated the mandatory community work service hours for this offense.  See AO  


2016-83(s)  6; SLA 2016, ch. 36,  105.  

      3     State v. Fogg, 995 P.2d 675 (Alaska App. 2000).  

                                                                          - 2 -                                                                    2635

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

community work service hours into jail timeunder                                                                            themunicipalcode. TheMunicipality                             

also emphasized that Swartz had agreed to the conversion as part of her original plea                                                                                                                          


                                  The district court judge agreed with the Municipality and imposed 9 days                                                                                                  

of jail time for the 72 hours of uncompleted community work service.                                                                                                                     Swartz now   

appeals, arguing that the 9 days of jail time was unlawfully imposed.                                                                                                            For the reasons      

explained here, we conclude that the court erred in imposing the 9 days of jail time.                                                                                                                               

                 Why we conclude that the court erred when it imposed 9 days of jail time                                                                                                     

                                  In 2016,             theAlaskalegislatureamended                                                  AS12.55.055                         toexpresslyprohibit           


courts from converting uncompleted community work service hours into jail time.                                                                                                                                            


Subsection (g) of AS 12.55.055 now declares:  


                                  (g) The court may not  


                                                  (1) offer a defendant convicted of an offensetheoption  


                                  of  serving  jail  time  in  lieu  of  performing  uncompleted  


                                  community work previously ordered by the court; or  


                                                  (2) convert uncompleted community work hours into  


                                  a sentence of imprisonment.  


The legislature also added subsection (h) to AS 12.55.055, which requires the court to  


instead convert any uncompleted community work hours into a monetary fine according  



to a specified formula. 

        4        SLA 2016, ch. 36,  76.  

        5        Subsection (h) provides:  

                                  (h) If a court orders community work as part of the defendant's  


                                  sentence under this section, the court shall provide notice to the  

                                  defendant  at  sentencing  and  include  as  a  provision  of  the  


                                 judgment  that  if  the  defendant  fails  to  provide  proof  of  


                                  community work within 20 days after the date set by the court,  

                                 the court shall convert those community work hours to a fine  



                                                                                                       -  3 -                                                                                               2635

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

                        Both of these provisions went into effect on July 12, 2016, and they are                                                        

applicable to all "community work service imposed on or after [July 12, 2016] for                                                                      


offenses committed on or after [that] effective date."                                                                                             

                                                                                                         Thus,  if Swartz were being  

sentenced for conduct occurring on or after July 12, 2016, there would be no question  


that the court would not be permitted to convert her uncompleted community work  


service to jail time.  


                        The complication we face in Swartz's case is that the community work  


service hours at issue here were imposed in 2015, prior to the change in state law.  


Moreover,  the parties  specifically  agreed,  as part of their  plea agreement,  that any  


uncompletedcommunitywork servicehours would beconverted tojailtime. Seemingly,  


then, the question before us is whether this provision of the plea agreement is enforceable  


despite the change in the law.  


                        But we conclude that we need not resolve that question in the context of this  


case.  Rather, we conclude that the conversion provision of the plea agreement is not  


enforceable for a different reason: The provision fails to define a material term of the  


agreement - namely, what conversion rate should apply.  


                        One  reasonable  interpretation  of  the  agreement  is  that  one  hour  of  


community work service would equal one hour in jail.  Thus, 72 hours of community  


work service left incomplete would mean 72 hours (3 days) in jail. However, at Swartz's  


probation revocation sentencing, the district court judge viewed the community work  


service hours as comprising ten 8-hour work days, with each of these ten days translating  

      5     (...continued)  

                        equal to the number of uncompleted work hours multiplied by  


                        the state's minimum hourly wage and issue a judgment against  


                        the defendant for that amount.   

AS 12.55.055(h); see also SLA 2016, ch. 36,  76.  

      6     SLA 2016, ch. 36,  185(f)(3).  

                                                                          - 4 -                                                                     2635

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

into a full 24-hour day in jail. Thus, the district court concluded that Swartz's remaining                                                                                      


72 hours of community work service translated into 9 days of jail time.                                                                                                                          

                                                                                                                                                                               This is the  


sentence the court imposed.  


                               Given the failure of the parties to identify the conversion rate that would  


apply here, we strike as unenforceable the provision of the plea agreement requiring  


uncompleted community work service hours to convert to jail time.  The Municipality  

is free to seek withdrawal from the plea agreement if it believes that the failure of this  


provision materially alters or defeats the plea agreement.  Alternatively, the parties may  


simply renew the probation revocation proceedings, and the district court may revoke an  


appropriate portion of Swartz's suspended jail time, in accordance with the  Chaney  


criteria, for Swartz's failure to complete the community work service required by her  



conditions of probation. 



                               The judgment of the district court is VACATED, and this case is remanded  


for further proceedings in accordance with the guidance provided here.  

        7       It is not clear where this conversion rate comes from.  It is possible that it was reverse  

engineered from AS 12.55.055(d), which permits sentencing courts to offer a defendant the   

option of performing community work service in lieu of a sentence of imprisonment at a                                                                          

substitution rate of 8 hours of community work for each day of imprisonment.                                                                                                        But such  

reverse engineering is contrary to our reasoning in                                                              Fogg .  See State v. Fogg                             , 995 P.2d 675,  

676-67 (Alaska App. 2000) (concluding that the trial court's ability to convert statutorily-  

mandated communitywork service hours into other penalties is limited to what the legislature                     

expressly authorized).  

        8      See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005 (codifying the  

Chaney criteria).  

                                                                                               -  5 -                                                                                       2635  

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