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State of Alaska v Kai Davidson Meyers (12/18/2020) ap-2686

State of Alaska v Kai Davidson Meyers (12/18/2020) ap-2686

                                                                    NOTICE
  

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                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                                        Court of Appeals No. A-13067  

                                              Appellant,                            Trial Court No. 3SW-17-01118 MO  



                                   v.  

                                                                                                      O P I N I O N  

KAI MEYERS,  



                                              Appellee.                               No. 2686 - December 18, 2020  

                                                                                           



                                              

                       Appeal from the District Court, Third Judicial District, Seward,  

                       George Peck, Magistrate Judge.  



                                                                                                                  

                       Appearances:               John  J.  Novak,  Assistant  Attorney  General  

                                                             

                       (opening  brief,  reply  brief,  and  oral  argument),  and  Donald  

                                                                                                                 

                       Soderstrom,  Assistant  Attorney  General,  Office  of  Criminal  

                       Appeals,   Anchorage   (supplemental   brief),   and   Kevin   G.  

                                                                                                                   

                       Clarkson, Attorney General, Juneau for the Appellant. Brent R.  

                       Cole, Woelber & Cole, Anchorage, for the Appellee.  



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

                                                               

                       Judges.  



                       Judge HARBISON, writing for the Court.  

                       Judge WOLLENBERG, concurring.  


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

                                             In this appeal, we are asked to determine whether Alaska law authorizes                                                                                                                                            



courts to suspend imposition of sentence when a defendant is convicted of an infraction                                                                                                                                                                           



under Title 28 of the Alaska Statutes.                                                                                          



                                             For the reasons we explain in this opinion, we conclude that the answer is                                                                                                                                                                      



no, and we therefore reverse the trial court's order suspending imposition of Meyers's                        



sentence for negligent driving.                                             



                      Factual and procedural history                                                     



                                             Kai Meyers was convicted of negligent driving, an infraction, in violation                                                                                                                                              



of AS 28.35.410. The trial court initially entered a judgment suspending the imposition                                                                                                                                                                        



                                                                                                                                                    1  

of Meyers's sentence for a period of 1 year.                                                                                                            



                                                                                                                                                                                                                                                                             

                                             After the judgment was issued, the State filed a motion to correct illegal  



                                                                                                                                                                                                                                                           

sentence under Alaska Criminal Rule 35(a), arguing that Alaska courts are empowered  



                                                                                                                                                                                                                                                                                         

to impose a suspended imposition of sentence (SIS) only for criminal offenses, not for  



                                                                                                                                                                                                                                                                          

violations and infractions.  The trial court denied the motion in a written order, stating:  



                                                                                                                                                                                                                                             

                                             Unless  the  power  of  the  court  to  Suspend  Imposition  of  

                                                                                                                                                                                                                                

                                             Sentence is specifically  prohibited by law, it is [a] viable  

                                                                                                                                                                                                                                  

                                            judicial alternative at any sentencing be it a dog at large,  

                                                                                                                                                                                                                                  

                                             littering,  minor  offense  traffic  and  some  fish  and  game  

                                                                                                                                                                                                                                        

                                             proceedings. . . . So unless and until one of the parties gets  

                                                                                                                                                                             

                                             the judgment declared void, it stands.  



                                                                                                                                                                                                                                                                                         

                                             The State now appeals this order, arguing that the trial court lacked both the  



                                                                                                                                                                                                                                                                                                     

inherent authority and the statutory authority to impose an SIS for a Title 28 infraction.  



            1          The court later reduced the length of Meyers's suspended imposition of sentence to   



6 months.  



                                                                                                                                          - 2 -                                                                                                                                     2686
  


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

                Courtsdo                not haveinherent authority to suspend theimpositionof                                                                            sentence  



                                The trial court's order implied that the court had inherent authority to                                                                                                



impose an SIS for Meyers's negligent driving infraction.                                                                                But the parties agree that this                              



is incorrect.   



                                In  Pete   v.   State,   the   Alaska   Supreme   Court   held   that   "[t]he   power  to  



suspend sentences is not inherent in the judicial branch of government; the power exists                                                                                                        



                                                                                                                                             2  

only when conferred upon the judiciary by the legislature."                                                                                     



                                                                                                                                                                                                    

                                Thus,  the  critical  question  before  us  is  whether  the  legislature  has  



                                                                                                                                                                                                    

authorized courts to suspend the imposition of sentences for Title 28 infractions like  



                        

negligent driving.  



                                                                                                                                                                           

                 Why we conclude that the legislature has not authorized courts to suspend  

                                                                                                                

                the imposition of sentence for a Title 28 infraction  



                                                                                                                                                                                                         

                                The Alaska Statutes classify noncriminal offenses as either "infractions" or  



                              3  

"violations."                                                                                                                                                                                      

                                  Infractions and violations are essentially the same type of offense - they  



                                                                                                                                                                                              

carry no possibility of imprisonment and, generally, no right to jury trial or court- 



                                             4  

                                                                                                                                                  

appointed counsel.                               Under AS 28.90.010(d), an "infraction" is:  



        2       Pete v. State, 379 P.2d 625, 626 (Alaska 1963);  see also Edwards v. State, 34 P.3d  



962, 968 (Alaska App. 2001) ("A court has no inherent power to suspend sentence and                             

impose probation; any such power must be granted by legislative enactment.").  



        3       See generally, Title 4, Title 11, Title 16, and Title 28.  

                          



        4       See Baker v. City of Fairbanks, 471 P.2d 386, 402 (Alaska 1970) (holding that a  

                                                                 

defendant has the right to a jury trial when the possible penalty for the offense includes (1)  

                                                                                                                                                

incarceration,  (2)  loss  of  a  valuable  license,  or  (3)  a  fine  heavy  enough  to  indicate  

                                                                                                                                                                

criminality); see also AS 28.90.010(d) (a person cited with an infraction does not have the  

                                                  

right to a jury trial or to court-appointed counsel).  



                                                                                                 -  3 -                                                                                            2686
  


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

                                                            not   considered   a   criminal   offense   and   may   not  result   in  

                                                            imprisonment, nor is a fine imposed for the commission of an                                                                                                                                                                                                     

                                                            infraction considered a penal or criminal punishment; . . . nor                                                                                                                                                                                     

                                                            does a person cited with an infraction have a right to trial by                                                                                                                                                                                                 

                                                           jury or to court-appointed counsel.                                                                                    



 Similarly, AS 11.81.900(b)(67) provides that a "violation" is:                                                                                                                                                                                                          



                                                            a noncriminal offense punishable only by a fine, but not by                                                                                                                                                                                   

                                                            imprisonment or other penalty; conviction of a violation does                                                                                                                                                                                          

                                                            not give rise to any disability or legal disadvantage based on                                                                                                                                                                                                  

                                                            conviction of crime; a person charged with a violation is not                                                                                                                                                                                                

                                                            entitled (A) to a trial by jury; or (B) to have a public defender                                                                                                                                                                   

                                                            or other counsel appointed at public expense to represent the                                                                                                                                                                                                 

                                                            person[.]  



                                                            While the term "violation" is used to describe noncriminal offenses in Title                                                                                                                                                                                                                                      



 11 (Criminal Law) and in other titles, including Title 4 (Alcoholic Beverages) and Title                                                                                                                                                                                                                                                                                     



 16 (Fish and Game), the term "infraction" is used to describe noncriminal offenses in                                                                                                                                                                                                                                                                                                   



Title 28 (Motor Vehicles).                                                                                              



                                                            Meyers was convicted of negligent driving in violation of AS 28.35.410,   



which declares that a person convicted under that statute is guilty of an infraction.                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                                                                                                                                             5  

Pursuant to AS 28.90.010, infractions are "punishable by a fine not to exceed $300."                                                                                                                                                                                                                                                                                                               



                                                            There is no provision in AS 28.90.010 - or in any other part of Title 28  



                                                                                                                                                                                                                                                                                               

- that specifically authorizes a court to impose probation or to suspend imposition of  



                                                                                                                                                                                                                                                                                                                                                                                    

 sentence when a defendant is convicted of an infraction.  We accordingly look to the  



                                                                                                                                                                                                                                                                                                                                                                              

procedure by which a court may suspend imposition of sentence, which is set out in Title  



                                                                                                                                                                                                                                                  

 12, to determine whether such authority can be found there.  



               5              AS 28.90.010(c).  



                                                                                                                                                                                       - 4 -                                                                                                                                                                                    2686
  


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

                      The   statutory   framework   for   suspending   the   imposition,   execution,   or  



                                                                                                6  

balance of a sentence is found in AS 12.55.080 - .090.                                                                         

                                                                                                    Alaska Statute 12.55.085  



                                                                                                                                        

specifically addresses a court's authority to suspend the imposition of sentence.  This  



                                                                                                                                     

statute requires a court granting an SIS to place a defendant on probation, and it allows  



                                                                                                                                       

a court to  set aside the defendant's conviction if the defendant is discharged  from  



                                                                                                                                     

probation without the imposition of sentence. The statute also allows the court to revoke  



                                                                                                                               

the defendant's probation and impose a sentence if the defendant violates the conditions  



                                                                                                                                                 

of  probation,  commits  a  crime,  or  fails  to  participate  in  court-ordered  treatment.  



                                                                                                                                 

Accordingly, when a court grants an SIS for an offense, the court must have statutory  



                                                                                                        

authority to place the defendant on probation for that offense.  



                                                                                                                                            

                      When it was enacted, AS 12.55.090 - the statute authorizing probation -  



                                                                                                                                             

provided that a court could grant probation when "the crime [was] punishable by fine or  



                                      7  

                                                                                                                                           

imprisonment or both."                   Similarly, AS 12.55.085 initially allowed a court to suspend the  



                                                                                                                                       

imposition of sentence only up to the maximum period of time that the defendant could  



                                                     8  

                                                                                                                                          

be  sentenced  to imprisonment.                          As a result, a court was only able to suspend the  



                                                                                                                                       

imposition of sentence for a jailable offense - i.e., a crime.  Stated differently, when  



                                                                                                                                             

these statutes were first enacted, neither of them provided the court with authority to  



                                                    

grant an SIS for a noncriminal offense.  



      6    AS 12.55.080 provides that a court entering a judgment of conviction for a crime may   



suspend the imposition, execution, or balance of the sentence and place the defendant on                                                    

probation.  AS 12.55.085 authorizes a court to suspend imposition of sentence and provides   

limits to this authority.  AS 12.55.090 authorizes the court to place a defendant on probation   

and provides limits to this authority.   



      7    Former AS 12.55.090(a) (1962) (emphasis added).  



      8    Former AS 12.55.085 (1965).  



                                                                    -  5 -                                                              2686
  


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

                        In 1994, the legislature amended the provision of AS12.55.085that limited                                                 



                                                                                              9  

the period of a suspended imposition of sentence.                                                                                                       

                                                                                                   The sponsor who proposed the  



                                                                                                                                                          

amendment explained that judges often would refrain from granting an SIS when an  



                                                                                                                                                           10  

                                                                                                                                                                

                                                                                                                                                  

offender was convicted of a crime carrying a maximum jail term of only 10 to 90 days. 



This was because AS 12.55.085 capped the period of a suspended imposition of sentence  

                                                                                                                                               



at the length of time of the maximum term of imprisonment, and judges often deemed  

                                                                                     

a period of only 10 to 90 days to be too short to allow for rehabilitation.11  

                                                                                                                                            

                                                                                                                                     To encourage  



                                                                                                                                             

courts  to  grant  an  SIS  for  certain  lower-level  crimes,  the  legislature  amended  



                                                                                                                                                       

AS 12.55.085 to permit courts to suspend the imposition of sentence for up to one year  



                                                                                                                                                12  

                                                                                                                                                    

or the maximum term of imprisonment for the offense, "whichever is greater." 



                                                                                                                                                    

                         Since  this  1994  amendment  to  AS  12.55.085,  an  SIS  has  been  more  



                                                                                                                                                         

available for lower-level criminal offenders.  However, nothing in the language or the  



                                   

legislative history of this amendment suggests that it was intended to authorize an SIS  



                                                                                                                                                         

for  an  offense  that  does  not  carry  the  possibility  of  imprisonment  -  e.g.,  for  an  



infraction.  



                                                                                                                                                          

                        As we noted earlier, probation is a necessary component of an SIS.   In  



                                                                                                                                                       

2008, the legislature amended AS 12.55.090 -the statute authorizing probation -with  



      9     See SLA 1994, ch. 96,  2;                      see also  Sectional Analysis for C.S.H.B. 313, 18th Leg.,  



2d Sess. (Jan. 28, 1994) (noting that the proposed new section amends AS 12.55.085(a) to  

permit judicial officers to suspend imposition of sentence in criminal cases for the maximum   

                                                                                                                        

period of time that incarceration could be ordered or for a period of one year, whichever is  

greater).  



      10    See Sponsor Statement for Committee Substitute for House Bill 313, Representative  



Pete Kott (Jan. 28, 1994).  



      11    Id.  



      12    See SLA 1994, ch. 96,  1 (amending AS 12.55.085(a)).  



                                                                           -  6 -                                                                     2686
  


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

the specific intention of allowing courts to impose probation for certain noncriminal                                                      



                 13  

offenses.                                                                                                                                           

                     This amendment authorized a court to impose probation "whether the offense  



                                                                                                                                                          14  

                                                                                                                                                               

under AS 11 or AS 16 or the crime is punishable by fine or imprisonment or both." 



                                                                                                                                           

                         The legislative history of the 2008 amendment shows that the legislature's  



                                                                                                                                                       

purpose in amending AS 12.55.090 was to permit prosecutors to resolve fish and game  



                                                                                                                                                       

offenses - i.e., offenses under Title 16 - as violations rather than misdemeanors while  



                                                                      15  

                                                                                                                                                   

still placing the offender on probation.                                  During her testimony before the House Finance  



                                                                                                                                                      

Committee, Assistant Attorney General Anne Carpeneti testified that the change would  



                                                                                                                                                           

apply only to noncriminal offenses set out in Title 16, which she confirmed were all fish  



                                                                                                                                 16  

                                                                                                                                                        

and game cases, and to the few noncriminal offenses set out in Title 11.                                                              Since the 2008  



                                                                                                                                          

amendment, AS 12.55.090 has allowed courts to impose probation for noncriminal  



                                                                                                                                                

offenses charged under Title 11 and Title 16, but it does not similarly authorize probation  



                                         

for Title 28 offenses.  



                                                                                                                                                    

                         Nothing  in  AS  12.55.085  or  AS  12.55.090  -  or  the  related  statute  



                                                                                                                                             

AS  12.55.080  governing  suspension  of  sentences  -  suggests  that  the  legislature  



                                                                                                                                                      

intended to allow a court to impose probation when sentencing a defendant for a traffic  



                                                                                                                                                             

infraction.            Indeed,  placing  a  noncriminal  traffic  offender  on  probation,  subject  to  



                                                                                                                                                          

conditions set by the court, would blur the distinction between traffic infractions and  



                                                                                                                                                    

crimes and would contravene the legislature's clear statutory pronouncement that an  



       13   Minutes of House Finance Comm., Senate Bill 265, testimony of Assistant Attorney                                     



General Anne Carpeneti, at 4:58:50 p.m. (Apr. 8, 2008); SLA 2008, ch. 75,  22.  



       14    SLA 2008, ch. 75,  22 (emphasis added).  



       15   Minutes of House Finance Comm., Senate Bill 265, testimony of Assistant Attorney  

                                                                                                                                 

General Anne Carpeneti, at 4:57-4:58 p.m. (Apr. 8, 2008).  



       16   Id. at 5:03-5:04 p.m.  



                                                                            -  7 -                                                                       2686
  


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

infraction "is not considered a criminal offense and may not result in imprisonment, nor                                                                                



is a fine imposed for the commission of an infraction considered a penal or criminal                                                                         

punishment."17  



                                                                                                                                                           

                           Meyers argues that the statutory authority for a court to impose probation  



                                                                                                                                                                            

and to suspend imposition of sentence for an infraction is found in AS 12.55.015, a  



                                                                                                                                                                    

general statute that sets out a list of "authorized sentences" that courts may impose when  



                                                                                                                                                          

a defendant is convicted of "an offense."  Subsection (a)(2) provides for "the defendant  



                                                                                                                                                         

to be placed on probation under conditions specified by the court . . . " and subsection  



                                                                                                                                                          18  

                                                                                                                                                                

(a)(8) allows courts to "suspend imposition of sentence under AS 12.55.085."                                                                                  Meyers  



                                                                                                                                                                        

contends that because an infraction is "an offense," these statutes provide authority for  



                                                                                                                                                                            

a court to impose probation and to suspend imposition of sentence when sentencing a  



                                                          

defendant for an infraction.  



                                                                                                                                                                      

                           We disagree.   An established principle of statutory construction is that  



                                                                                                                                                                          

"where one statute deals with a subject in general terms and another deals with a part of  



                                                                                                                                                                           

the same subject in more detail, the two should be harmonized if possible, but if there is  



       17    AS  28.90.010(d).    Additionally,  we  note  that  the  legislature  did  not  provide   a  



framework for monitoring probation or otherwise implementing a suspended imposition of  

sentence for traffic infractions.  For example, while a court that convicts a person of a Title   

28 offense is required to forward a record of the conviction to the Department of Motor                                                                           

Vehicles (DMV) within five working days, there is no equivalent provision requiring a court  

to forward a record of  setting aside a conviction to the DMV.  Similarly, although the DMV  

                                                                                             

must assess points when a person is convicted of a traffic offense and will suspend a person's  

license if a person acquires twelve points within one year or eighteen points within two years,     

                                                                                                                                                              

there is no provision of law that instructs the DMV on whether or how to remove points if  

a conviction is later set aside by the court.                                      AS 28.15.221(a) and (b).  If the legislature had   

                                                                                                     

intended that courts would suspend the imposition of sentence for traffic infractions, it likely  

                                                                                                                                                                       

would have provided statutory guidance to the courts and the DMV for monitoring and  

implementing an SIS.  



       18    AS 12.55.015(a)(2) and AS 12.55.015(a)(8).  



                                                                                  -  8 -                                                                             2686
  


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

                                                                                                                                                                                        19  

any conflict, the more specific statute will prevail."                                                                                                                                         Although AS 12.55.015(a)(2)                         



provides that a court may, when imposing sentence, order the defendant to be placed on                                                                                                                                                                                                            



probation, the authority to place a defendant on probation is addressed in more detail in                                                                                                                                                                                                           



AS 12.55.090, which is the statute specific to the granting of probation.                                                                                                                                                                                 



                                              As wehaveexplained, AS12.55.090authorizesacourt to imposeprobation                                                                                                                                                          



for a crime or for a noncriminal offense under Title 11 or Title 16.                                                                                                                                                               It does not authorize                   



a court to impose probation for a noncriminal offense under Title 28.                                                                                                                                                                                        Because the   



provisions of AS 12.55.090 are more specific than the general grant of authority set out                                                                                                                                                                                                        



in AS 12.55.015(a)(2), we conclude that a court's authority to impose probation under                                                                                                                                                                                                  



AS 12.55.015(a)(2) is not broader than the limited authority provided by AS 12.55.090.                                                                                                                                                                                                                        



                                               Similarly, while AS 12.55.015(a)(8) provides authority for a court to grant                                                                                                                                                               



an SIS, it also sets out clear limits to that authority.                                                                                                                                     The statute allows the court to                                                                       

"suspend imposition of sentence                                                                                  under AS 12.55.085."20  In other words, the authority  



                                                                                                                                                                                                                                                                                             

to suspend imposition of sentence pursuant to AS 12.55.015(a)(8) is limited to that  



                                                                                                                                                                                                                                                                           

granted in AS 12.55.085. And, as we explained above, AS 12.55.085 does not authorize  



                                                                                                                                                                                                                                                                    

a court to suspend imposition of sentence for defendants convicted of traffic infractions.  



                                                                                                                                                                                                                                                                            

Wethereforereject Meyers'sargumentthatAS12.55.015(a) providesstatutoryauthority  



                                                                                                                   

for a court to grant an SIS for an infraction.  



            19         Lamkin v. State , 244 P.3d 540, 541 (Alaska App. 2010) (quoting Waiste v. State, 808  



P.2d 286, 289 (Alaska App. 1991)) (holding that the provision in AS 12.55.085(f) making  

a suspended imposition of sentence unavailable for certain offenses takes precedence over  

the provision in AS 12.55.125(e)(1) allowing a suspended imposition of sentence); Stone v.  

                                                                                                                                                                                                                                              

State,  690   P.2d  22,  24  (Alaska  App.1984)  (holding  that  the  provision  in  former  

                                      

AS 17.10.200(a), specifically authorizing a maximum fine of $5,000 for the sale of cocaine,  

                                                                                                                                                                                                                                                                                

takes precedence over the provision in former AS 12.55.100(a)(1), generally authorizing  

                                                                                                                                                                                                                                                                     

fines as a condition of probation without specifying any limit on their amount).  



            20         AS 12.55.015(a)(8) (emphasis added).  



                                                                                                                                             -  9 -                                                                                                                                         2686
  


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

                                                                   The final question is whether the statutory authority for courts to suspend                                                                                                                                                                                                                                                   



 imposition of sentence for a traffic infraction may be found in AS 12.80.040.                                                                                                                                                                                                                                                                                                                                This  



  statute provides:   



                                                                   Except as provided in AS 11.81.900(b) and AS 28.90.010(d),                                                                                                                                                                        

                                                                   all   laws   of   the   state   relating   to   misdemeanors   apply  to  

                                                                   violations   and   infractions,   including   the   powers  of   peace  

                                                                   officers,   the   jurisdiction   of   courts,   and   the   periods   for  

                                                                   commencing actions and for bringing a case to trial.                                                                                                                                                                                                              



                                                                  Neither   party   cited   or   discussed   this   statute   in   their   original   briefs.   



 Accordingly, we asked the parties for supplemental briefing on the proper interpretation                                                                                                                                                                                                                                                                              



 of this statute.                                                        



                                                                   The State argues that the legislative history of this statute demonstrates that                                                                                                                                                                                                                                                                     



 the proper                                            interpretation   of this statute is not as broad                                                                                                                                                                                     as its plain language might                                                                                   



  suggest.   The State further contends that a broad interpretation - one that includes the                                                                                                                                                                                                                                                                                                                               



 application   of   misdemeanor   penalties   to   infractions   -   would   "nullify   the   primary  



 distinction between . . . infractions and misdemeanors."                                                                                                                                         



                                                                   In contrast, Meyers contends that the plain language of the statute requires                                                                                                                                                                                                                                                   



 a broad reading.  According to Meyers, all laws of the state relating to misdemeanors,   



 both substantive and procedural, apply to infractions with the exception of certain laws                                                                                                                                                                                                                                                                                                                         



  specifically referenced by AS 11.81.900(b) and AS 28.90.010(d) -                                                                                                                                                                                                                                                                          i.e., imprisonment,   



jury trial, and court-appointed counsel.                                                                                                               



                                                                   We are persuaded that the State has the better argument.                                                                                                                                                                         



                                                                   In  State v. Clayton                                                                    , the supreme court considered whether acourt may issue                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                                                                                                                  21  

 an arrest warrant for failing to appear or for failing to satisfy fines for traffic infractions.                                                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                                                                                                                                         

 The supreme court held that the legislature did not intend to eliminate "the traditional use  



                 21               State v. Clayton, 584 P.2d 1111 (Alaska 1978).  



                                                                                                                                                                                                       -  10 -                                                                                                                                                                                                       2686
  


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

of the criminal process for enforcement of traffic infractions," and that "the criminal                                                       



                                                                                              22  

process of enforcement" is applicable to infractions.                                                                                               

                                                                                                   In its opinion, the supreme court  



                                                                                                                                         

cited with approval a New Hampshire case  holding that the purpose of classifying  



                                                                                                                                                         

offenses - as felonies, misdemeanors, and violations - was for "determination of  



                                                                                                                                      23  

                                                                                                               

punishments" and was not intended to impact the process of enforcement. 



                                                                                                                                          24  

                                                                                                                        

                        Two years after Clayton, the legislature enacted AS 12.80.040. 



                                                                                                                                                   

                        In  1998,  in  State  v.  Dutch  Harbor  Seafoods,  Ltd.,  the  supreme  court  



                                                                                                                                                          25  

                                                                                                                                           

recognized that AS 12.80.040 was intended to codify its decision in State v. Clayton.                                                                          



                                                                                                                                         

The supreme court read Clayton to mean "that, regardless of the legislative designation  



                                                                                                                                              

of such offenses as noncriminal, violations and infractions are minor criminal offenses  



                                                                                                                                                 26  

                                                                                                                          

in substance and are to be enforced and adjudicated using criminal procedures."                                                                      The  



                                                                                                                                                      

court  said  nothing  about  the  application  of  criminal  penalties   to  violations  and  



infractions.  



                                                                                                                                                    

                        Indeed, the logical extension of Meyers's argument is that we should apply  



                                                                                                                                                           

not just the SIS statute but all the misdemeanor penalty provisions to infractions - a  



      22    Id. at 1114.  



      23    Id. at 1113 (quoting State v. Miller, 348 A.2d 345, 346 (N.H. 1975)).  



      24    SLA 1980, ch. 102,  42.  



      25    State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738, 744 n.12 (Alaska 1998); see also  



Commentaryand Sectional Analysis for the 1980 Amendments to Alaska's Revised Criminal  

                                                

Code, 1980 House Journal Supp. No. 79 (May 28), at 27 (stating that AS 12.80.040 "allows  

                                                                                 

peace officers to arrest a person for a violation or an infraction if the person refuses to  

                                                                                                                        

identify  himself  or  to  accept  a  citation"  and  that  it  should  be  read  together  with  the  

                                                           

corresponding amendment to AS 12.25.180, governing the use of citations in connection with  

                                                                                                                                   

violations).  



      26    Dutch Harbor Seafoods, 965 P.2d at 746; see also State v. Euteneier, 31 P.3d 111, 113  



(Alaska App. 2001).  



                                                                         -  11 -                                                                     2686
  


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broad-based application that would seemingly defeat the purpose of AS 28.90.010(d),                                                                   



which states that infractions are not intended to carry the stigma of a criminal offense.     



In  Clayton,   the   supreme   court   explained   that   the   legislature's   purpose   in   enacting  



AS 28.90.010(d) was "to eliminate the criminal stigma from                                                                minor traffic offenses while                 



                                                                                                                                                                              27  

keeping the enforcement of such offenses within the criminal system's procedures."                                                                                                  



                                                                                                                                                                         

And,  as  we  noted  above,  Clayton  cited  favorably  a  New  Hampshire  case  that  



                                                                                                                                                                   

distinguished punishments - which generally apply only to a specified level of offense  



                                                                                                                                                      

classification - from the enforcement mechanisms that apply  across  classification  



             28  

levels.                                                                                                                                                      

                   It follows that when the legislature included a carve-out within AS 12.80.040  



                                                                                                                                                                         

for AS 28.90.010(d), the legislature intended the carve-out to exclude misdemeanor laws  



                                                                                                                                       

that would have a criminal stigma - i.e., the substantive penalty provisions.  



                                                                                                                                                                            

                           As a result, we conclude that AS 12.80.040 does not provide authority for  



                                                                                                                                                             

a court to suspend imposition of sentence when sentencing an offender for an infraction.  



              Conclusion  



                           We conclude that the legislature has not granted courts the authority to  

                                                                                                                                                                              



suspend imposition of sentence for Title 28 infractions.  We therefore REVERSE the  

                                                                                                                                                                            



decision of the trial court and REMAND this case to the trial court for resentencing.  

                                                                                                                                                  



       27     Clayton, 584 P.2d at 1113.
  



       28     Miller , 348 A.2d at 346, cited in Clayton, 584 P.2d at 1113.
  



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Judge WOLLENBERG, concurring.                   



                         The suspended imposition of sentence is intended to provide a form of                                                                   



leniencyand              anopportunityforrehabilitation,                              especiallyfor "particularly deserving first-                           

offenders" convicted of lower level offenses.                                         1                               

                                                                                         It is therefore tempting to presume that  



                                                                                                                                                               

this option is available for a young defendant like Kai Meyers, who committed the  



                                                                                                                             

infraction of negligent driving.  This is particularly true because negligent driving is a  



                                                                                                                                          

lesser included offense of the crime of reckless driving, which the State acknowledged  



                                                                                                                                2  

                                                                                                                                   

at oral argument is eligible for a suspended imposition of sentence. 



                                                                                                                                                                 

                         But courts do not have the inherent authority to suspend the imposition of  



                                                                                                                                                     

sentence.  Thus, any authority to do so must ultimately be granted by statute.  



                                                                                                                                                 

                         In the past, the legislature has directly authorized the use of a suspended  



                                                                                                         3  

                                                                                                                                                     

imposition of sentence for a violation outside of Title 11.                                                 The legislature could certainly  



                                                                                                                                                     

authorize courts to grant a suspended imposition of sentence for negligent driving,  



                                                                                                                                                            

expressly specifyingthegoverning terms. However, because the legislature has not done  



                                                   

so, I concur in the court's opinion.  



       1     See State v. Huletz, 838 P.2d 1257, 1259 (Alaska App.1992).  



      2      AS 28.35.410(b).  



      3      See,  e.g.,  former  AS  04.16.050(b)(1)  (pre-2016)  (authorizing  a  court  to  "grant  a  



suspended imposition of  sentence under AS 12.55.085 and place the person on probation for  

up to one year" for the violation of  minor consuming or possessing alcohol, if  the person had  

not previously violated the same statute).  



                                                                             - 13 -  

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