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Ralph G. Hess v. State of Alaska (12/20/2019) ap-2663

Ralph G. Hess v. State of Alaska (12/20/2019) ap-2663


         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-12705  

                                   Appellant,                   Trial Court No. 2KB-06-00670 CR  


                                                                              O P I N I O N  


                                   Appellee.                      No. 2663 - December 20, 2019  

                  Appeal   from   the  Superior  Court,  Second  Judicial  District,  

                  Kotzebue, Angela Greene, Judge.  

                  Appearances:  Megan R. Webb, Assistant Public Defender, and  


                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  


                  Timothy  W.  Terrell,  Assistant  Attorney  General,  Office  of  


                  Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney  

                  General, Juneau, for the Appellee.  

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



                  Senior Judge.   

                  Judge HARBISON.  

     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

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

                    In  2006, Ralph G. Hess  was  charged with three counts  of first-degree sexual  

assault   and   two   counts   of   first-degree   burglary   after   he   broke   into   a   residence   and  

sexually   assaulted the   woman   who   lived   there.    These   charges   were   resolved   in   the  

middle  of  Hess's  trial,  when  Hess  entered  into  a  plea  bargain  with  the  State.   Under  the  

terms  of  this  agreement,  Hess  pleaded  guilty to a  single count  of  first-degree  burglary  

under  AS  11.46.300(a)(1)  (unlawful  entry  of  a  residence  with  intent  to  commit  a  crime),  

and  the  remaining  charges  were  dismissed.   

                    A  few  months  later,  Hess  filed  an  application  for  post-conviction  relief  in  

which  he  alleged  that  his  defense  attorney  had  misinformed  him  regarding  the  terms  of  

the  plea  bargain.   After  holding  a  hearing  to  investigate  these  claims,  the  superior  court  

found  that  Hess  had  received  accurate  information  about  the  terms  of  the  plea  bargain,  

and  that  his  contrary  testimony  was  "simply  not  credible."   The  superior  court  therefore  

denied  Hess's  application  for  post-conviction  relief,  and  this  Court  affirmed  the  superior  

court's  decision.1  


                    More than two years after this Court affirmed the superior court's ruling,  


Hess filed an application under AS 12.73.020, seeking DNA testing of certain evidence  


in his  case.   This  statute directs a court to order post-conviction DNA testing  if the  


defendant's case satisfies eleven factual and procedural requirements.  The first of these  


statutory  requirements  is  that  the  defendant  was  convicted  of  a  felony  defined  in  



AS  11.41. 


                    Hess was convicted of burglary, a felony defined in AS  11.46 rather than  


AS 11.41. Because of this, the superior court denied Hess's application for DNA testing.  

     1    See Hess v. State, 2013 WL 6576725 (Alaska App. Dec. 11, 2013) (unpublished).  

     2    AS 12.73.020(1).  

                                                            - 2 -                                                        2663

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

                    Hess   now   appeals  the   superior   court's   decision.     He   argues   that   even  

though,  on  its  face,  the  DNA  testing  statute  applies only to cases  where  the  defendant  

was  convicted of a felony  defined in AS 11.41, the statute  should be construed as also  

including  cases  like  his  -  cases  where  (1)  the  defendant  was  originally  charged  with  a  

felony   defined   in  AS   11.41   (for   example,   sexual   assault), and   (2)  the   defendant  was  

ultimately  convicted  of  burglary  under  the  theory  that  the  defendant's  target  crime  was  

a  felony  defined  in  AS   11.41.  

                    Alaska  does  not  follow  the  "plain  meaning"  rule  of  statutory  construction.3  



Even  if  the  language  of  a  statute  is  apparently  clear  and unambiguous,  Alaska  law  


employs a "sliding scale" analysis that allows a court to consider the legislature's intent  


when interpreting the statute, even when the literal wording of the statute conflicts with  



                                   Nevertheless, "the plainer the language of the statute, the more  

that legislative intent. 


convincing [any] contrary legislative history must be" before a court can depart from the  




plain meaning of the statutory language. 


                    Here, the pertinent language of AS  12.73.020 is plain and unambiguous:  


subsection (1) of this statute declares that the statute applies only if the defendant was  


convicted of a felony defined in AS 11.41. As a result, in order for Hess to prevail in this  


appeal, we must be persuaded that the legislative history of AS 12.73.020 convincingly  


shows  that  the  legislature  actually  intended  to  require  DNA  testing  even  when  a  


defendant was convicted of some other type of crime.  

     3     Ward v. State, Dept. Of Public Safety,  288 P.3d 94, 98 (Alaska 2012) (citing City of  

Kenai v. Friends of Recreation Center, Inc., 129 P.3d 452, 458-59 (Alaska 2006)).  

     4    See, e.g.,  State v. Fyfe, 370 P.3d 1092, 1094-95 (Alaska 2016); Anchorage v. Beezley ,  

435 P.3d 978, 981 (Alaska App. 2018).  

     5    Alaskans  for  Efficient  Gov't,  Inc.  v.  Knowles ,  91  P.3d  273,  275  (Alaska  2004)  

(quoting Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1019 (Alaska 1998)).  

                                                              - 3 -                                                         2663

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

                    The   legislative   history   of   AS    12.73.020   does   not   demonstrate   any  

legislative purpose different from what the plain language of the statute conveys.   Indeed,  

the  legislative  history  of  AS  12.73.020  affirmatively  shows  that  the  legislature  purposely  

chose  to  limit  the   scope   of  this   statute  to  defendants  who were   convicted   of   a   felony  


defined  in  AS   11.41. 


                   Hess was not convicted of a felony defined in AS 11.41.  Rather, he was  


convicted of burglary, a felony defined in AS  11.46.  Accordingly, the superior court  


correctly  ruled  that  Hess  did  not  meet  the  statutory requirements  for  court-ordered  


post-conviction DNA testing under AS 12.73.020.  


                    The judgment  of the superior court is AFFIRMED.  

     6    See,   e.g., Minutes of  the House Finance Committee, House Bill 316, testimony   of  

Deputy  Attorney  General Richard Svobodny  (Feb. 8, 2010); Minutes of  the House Judiciary  

Committee,  House  Bill  316,  testimony   of   Assistant   Attorney   General  Anne  Carpeneti  

(Feb. 10, 2010 and Feb. 15, 2010).  

                                                            - 4 -                                                       2663

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