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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kelley Maves v. State of Alaska, Department of Public Safety (1/22/2021) sp-7501
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KELLEY MAVES, )
) Supreme Court No. S-17492
Appellant, )
) Superior Court No. 3AN-15-08842 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF PUBLIC ) No. 7501 - January 22, 2021
SAFETY, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Darryl L. Thompson, Darryl L. Thompson,
P.C., Anchorage, for Appellant. Hazel C. Blum, Assistant
Attorney General, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A man was convicted of two sexual assaults in Colorado in 1997. He
moved to Alaska in 2015, where the Department of Public Safety required himto register
for life as a sex offender under the Alaska Sex Offenders Registration Act (ASORA).
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The man appealed the Department's decision to the superior court, arguing that one of
the two convictions could not be used as the basis for a lifetime registration requirement
because it had been set aside; with one conviction he would be required to register for
only 15 years. His argument on appeal included a challenge to a 1995 departmental
regulation that defined "conviction" as including those that had been set aside. The
superior court affirmed the Department's decision requiring the man to register for life.
We conclude that the 1994 version of ASORA was not plainly intended to
apply to offenders whose convictions have been set aside and that the 1995 regulation
extending the Act's reach to those convictions was not necessary to carry out the Act's
purposes. We therefore reverse the superior court's decision upholding the requirement
that the man register under ASORA for life.
II. FACTS AND PROCEEDINGS
A. Facts
In 1997 Kelley Maves was charged in Colorado with two counts of sexual
assault and pleaded guilty to both offenses. He was sentenced to 60 days in prison on
a count of third-degree sexual assault and received a deferred judgment and sentence on
a count of second-degree sexual assault. 1 In 2002 a Colorado court determined that
Maves was in compliance with the terms and conditions of his probation, and he was
allowed to withdraw his plea of guilty to the second-degree sexual assault charge, which
was then dismissed with prejudice.2 Maves moved to Alaska in 2015, and the
1 See Colo. Rev. Stat. § 16-7-403 (1997) (current version at Colo. Rev. Stat.
§ 18-1.3-102 (2020)) ("Upon full compliance with such conditions by the defendant, the
plea of guilty previously entered shall be withdrawn and the charge . . . shall be
dismissed with prejudice.").
2 See id.
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Department informed him that because he had two convictions for sex offenses, he
3
would need to register for life under ASORA.
B. Proceedings
Maves appealed the lifetime registration requirement to the Commissioner
of Public Safety. ASORA currently defines "conviction" to include convictions that
4
have been set aside, but Maves argued that because his offenses took place in 1997 he
was subject to the 1994 version of ASORA, which did not include that definition. The
Commissioner denied Maves's appeal.
Maves appealed the Commissioner's decision to the superior court. The
court decided that the Department had violated the ex post facto clause by applying the
1999 version of ASORA's definition of "conviction" to Maves's 1997 offense. The
court further concluded that under the 1994 version of the law, only the third-degree
sexual assault conviction qualified as a conviction for purposes of ASORA. Because
Maves had only one conviction, he was required to register for 15 years, not life.
The Department appealed, and in an unpublished order we reversed the
5 We observed that although ASORA
superior court's decision and remanded the case.
did not define "conviction" at the time of Maves's offenses in 1997, the Department had
promulgated a regulation defining "conviction"in 1995.6 "Of particular relevance to this
3 AS 12.63.020(a)(1) provides that "[t]he duty of a sex offender . . . to
comply with [the statutory registration requirements] . . . continues for the lifetime of a
sex offender . . . convicted of . . . two or more sex offenses."
4 AS 12.63.100(3).
5 State,Dep'tofPub.Safetyv.Maves, Nos.S-16460/16470(AlaskaSupreme
Court Order, Dec. 19, 2017).
6 Id.; see 13AlaskaAdministrativeCode(AAC)09.900(a)(2) (1995) (current
(continued...)
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case, the regulation stated that a conviction would count toward an individual's
registration requirement 'whether or not the judgment was thereafter set aside under
AS12.55.085 [Alaska's suspended imposition ofsentence statute] or a similar procedure
7 We concluded that the prohibition on ex post facto legislation
in another jurisdiction.' "
would "not bar application of ASORA to judgments entered after adoption of the 1995
regulation, even if they are set aside under AS 12.55.085, because the defendants in this
category had notice that they would not be exempt from registration."8 We directed the
superior court to determine on remand "whether Maves's deferred sentence is 'similar'
to the set aside of a conviction pursuant to AS 12.55.085, and if so, whether [Maves] is
required by ASORA to register for life."9
On remand the superior court granted Maves's motion to expand the issues
to include whether the Department's 1995 regulation was valid and enforceable. After
full briefing the superior court decided that (1) the Colorado and Alaska deferred
sentencing procedures were "similar" and the conviction set aside under Colorado law
was therefore a conviction for purposes of the 1995 regulation; and (2) the regulation
was a valid enactment within the scope of the authorizing legislation and the
Department's rule-making authority. Having decided both issues in favor of the
6 (...continued)
version at 13 AAC 09.900(b)(1) (2020)).
7
State,Dep'tof Pub. Safetyv. Maves, Nos.S-16460/16470(AlaskaSupreme
Court Order, Dec. 19, 2017) (citing 13 AAC 09.900(a)(2) (1995)).
8 Id. (citing Doe v. State, Dep't of Pub. Safety, 92 P.3d 398, 412 (Alaska
2004) (Matthews, J., concurring)).
9 Id.
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Department, the court affirmed the Department's order requiring Maves to register for
life under ASORA.
Maves again appeals.
III. STANDARD OF REVIEW
"When the superior court acts as an intermediate court of appeals, we
10
independently review the decision of the administrative agency or actor." "A
regulation's consistency with its enabling statute is a question of law to which we apply
11
'the appropriate standard of review based on the level of agency expertise involved.' "
Whether the regulatory definition of "conviction" at issue here is consistent with the
enabling statute does not implicate the Department's expertise; we therefore review the
12
"Under this standard weexerciseour
issueunder thesubstitution ofjudgment standard.
independent judgment, substituting our 'own judgment for that of the agency even if the
13
agency's [interpretation] ha[s] a reasonable basis in law.' "
IV. DISCUSSION
The question we decide in this appeal is whether a conviction that was set
aside remains a "conviction" for purposes of the 1994 version of ASORA; if it does, then
a sex offender whose conviction was set aside would still be required to register. Maves
10 Kohlhaas v. State, Office of Lieutenant Governor , 147 P.3d 714, 716-17
(Alaska 2006).
11 City of Valdez v. State, 372 P.3d 240, 246 (Alaska 2016) (quoting Davis
Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293, 299 (Alaska 2014)).
12 See Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce,
414 P.3d 630, 634 (Alaska 2018) (using substitution of judgment standard to determine
whether regulations limiting naturopaths prescribing authority were consistent with
enabling legislation).
13 Id. (alterations in original) (quoting Tesoro Alaska Petroleum Co. v. Kenai
Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).
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did not appeal only this issue; he also appealed the superior court's determination that
the Colorado procedures under which his sentence was set aside were similar enough to
Alaska's set-aside procedure that his deferred sentence met the regulatory definition of
"conviction," which includes convictions that are "set aside under AS 12.55.085 or a
similar procedure in another jurisdiction ."14 However, we need not reach this second
issue because of our decision that the regulation was invalid.
As enacted in 1994, ASORA provided that "[a] sex offender who is
physically present in the state shall register as provided in this section."15 The statute
defined "sex offender" as "a person convicted of a sex offense in this state or another
jurisdiction regardless of whether the conviction occurred before, after, or on the
effective date of this section."16 The word "conviction" was not defined (though it is
17 We emphasize that our decision in this case is limited to the effect of the 1994
now).
law - that is, it affects only those persons like Maves whose convictions were set aside
before the 1999 amendment to ASORA discussed below.
When enacting ASORA in 1994, the legislature authorized the Department
to promulgate regulations "necessary to carry out the purposes of [ASORA]."18 The
Department issued regulations in 1995 that included 13 AAC 09.900(a)(2), defining
"conviction" to include a guilty plea, no contest plea, or other finding of guilt "whether
or not the judgment was thereafter set aside under AS 12.55.085 or a similar procedure
14 13 AAC 09.900(a)(2) (1995) (emphasis added).
15 Ch. 41, § 4, SLA 1994. The current version of the statute adds "child
kidnapper" to the persons subject to the registration requirements. See AS 12.63.010(a).
16 Ch. 41, § 4, SLA 1994.
17 See AS 12.63.100(3) (defining "conviction").
18 Ch. 41, § 5, SLA 1994; see AS 18.65.087(a).
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in another jurisdiction." The referenced statute, AS 12.55.085, authorizes the trial court
"in its discretion" to suspend the imposition of sentence "if it appears that there are
circumstances in mitigation of the punishment, or that the ends of justice will be served."
Subsection (e) provides: "Upon the discharge by the court without imposition of
sentence, the court may set aside the conviction and issue to the person a certificate to that
19
effect."
Maves argues that 13 AAC 09.900(a)(2) was invalid because ASORA did
not expressly include persons whose convictions had been set aside and the Department
lacked authority to expand the Act's reach to include those persons by regulation. "We
review an agency's regulation for whether it is 'consistent with and reasonably necessary
to implement the statutes authorizing [its] adoption.' "20 In doing so, "we
consider: (1) whether [the agency] exceeded its statutory authority in promulgating the
regulation; (2) whether the regulation is reasonable and not arbitrary; and (3) whether the
21 Maves argues that
regulation conflicts with other statutes or constitutional provisions."
13 AAC 09.900(a)(2) fails these tests because it "was not necessary to carry out the
purposes of [ASORA]; it was arbitrary and capricious and it exceeded the scope of the
enabling legislation."
The court of appeals addressed this issue in State v. Otness, concluding that
the defendants in three consolidated cases - whose convictions had been set aside under
AS 12.55.085 - had not carried their burden of showing that 13 AAC 09.900(a)(2) was
19 The same statutory language was in effect in 1995. Ch. 50, § 1, SLA 1995.
20 Manning v. State, Dep't of Fish &Game, 355 P.3d 530, 534 (Alaska 2015)
(alteration in original) (quoting Wilber v. State, Commercial Fisheries Entry Comm'n ,
187 P.3d 460, 464 (Alaska 2008)).
21 Id. (alteration in original) (quoting Wilber, 187 P.3d at 464-65).
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22 23
inconsistent with the purposes of its enabling legislation. Chief Judge Coats dissented.
He noted that ASORA did not define "convicted," and he observed that "there are
24 He explained the purposes of the
situations where the term 'convicted' is ambiguous."
set-asidestatute -to incentivize and reward good behavior -and found it "questionable
whether the legislature intended to have defendants register who successfully completed
a suspended imposition of sentence and had their conviction removed from their
record."25 Chief Judge Coats believed that "[g]iven the substantial constitutional
questions raised by [ASORA], and the significant impact of the Act on a person who is
required to register, . . . this ambiguous delegation of authority" to the Department was
insufficient to authorize the Department "to define who would be required to register."26
We have addressed ASORA in a number of opinions since Otness was
27 We have repeatedly acknowledged the serious restraints ASORA places on
decided.
offenders' liberty interests, recognizingthat theAct's "requirementsareboth punitiveand
28 In Doe I we held that ASORA could not be constitutionally applied to an
regulatory."
22 986 P.2d 890, 891-92 (Alaska App. 1999).
23
Id. at 894-96 (Coats, C.J., dissenting).
24
Id. at 894.
25
Id. at 894-95.
26
Id. at 895-96.
27
See Doe v. Dep't of Pub. Safety (Doe III), 444 P.3d 116 (Alaska 2019); Doe
v. State (Doe II), 189 P.3d 999, 1007-19 (Alaska 2008); Doe v. State, Dep't of Pub.
Safety (Doe I), 92 P.3d 398, 408-12 (Alaska 2004).
28 Doe III, 444 P.3d at 123; see also Doe II, 189 P.3d at 1007-19 (deciding
that ASORA is punitive for purposes of ex post facto clause and may not be applied
retroactively); Doe I, 92 P.3d at 408-12 (deciding that applying ASORA to offenders
(continued...)
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29
offender whose sentence had been set aside before ASORA's enactment. But
"[b]ecause Doe's conviction and set-aside order both predated the effective dates of both
the 1995 regulation and the 1999 amendment which redefined 'conviction' to include
convictions that were set aside, it [was] not necessary in [that] case to consider whether
30
the regulation was valid."
We now face the issue left undecided in Doe I - the validity of the 1995
regulation. Much of the discussion in that case helps shape our analysis here. In Doe I
we explained "[t]he meaning and effect of setting aside a conviction" under
AS 12.55.085.31 Wenoted that theprocedureis "typically reserved forlow-risk, first-time
offenders" who are most likely to satisfy "the terms and conditions of [their] probation
without incident."32 Once set aside, the former conviction has limited effects.33 For
example, a set-aside conviction generally is not a "prior conviction" for purposes of
28 (...continued)
whose convictions were set aside before the law went into effect violated due process).
29
92 P.3d at 408-12.
30
Id. at411-12 n.83. JusticeMatthews, concurring, notedthat "[t]heeffective
date of [the 1995] regulation . . . will be the critical date governing the application of the
precedent established by the opinion of this court assuming the regulation was
authorized and validly promulgated." Id. at 412 n.1 (Matthews, J., concurring)
(emphasis added).
31 Id. at 405-07 (majority opinion).
32 Id. at 405; see also State v. Mekiana, 726 P.2d 189, 193 (Alaska 1986)
(recognizing set-aside convictions as a way of encouraging defendants "to meet the
conditions of their probation" and show that they have "reformed," rewarding them
"with a clean record").
33 See State, Div. of Corps., Bus. & Prof'l Licensing, Alaska Bd. of Nursing
v. Platt, 169 P.3d 595, 599 (Alaska 2007) (noting that set-aside conviction "loses much
of its legal importance in future legal proceedings").
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increased sentencing for a later crime; the fact that it was set aside may be "an affirmative
defense in some repeat offender situations"; and the conviction may not be used for
34 On the other hand,
impeachment purposes under Alaska Rule of Evidence 609(d)(2).
the set-aside conviction will remain in the public record (with the collateral consequences
that may impact issues like employment and housing) and may be relevant to a court's
consideration of aggravating factors in a later sentencing proceeding.35 "But these
consequences are relatively limited, and are foreseeable to a set-aside candidate."36
We also explained in Doe I that the burdens ASORA imposes on
offenders - the duties to register, "to disclose extensive personal information," and "to
keep their information current for at least fifteen years or the rest of their lives, depending
on the offense," as well as the State's inclusion of this personal information in the public
registry - "differ dramatically" from the minimal burdens remaining after a conviction
hasbeen set aside.37 Noting that ASORA's requirements arepremised on "theassumption
that persons convicted of sex offenses pose a significant danger of committing new sex
offenses," we determined that this assumption was "fundamentally inconsistent with the
individualized findings of fact a court makes before setting aside a particular offender's
conviction," i.e., "that the particular offender does not pose significant danger of
34 Doe I, 92 P.3d at 406; see also Wickham v. State , 844 P.2d 1140, 1144
(Alaska App. 1993) (holding "that a conviction may not be relied on for impeachment
purposes after it has been set aside under this statute"); Larson v. State , 688 P.2d 592,
597 (Alaska App. 1984) ("We . . . hold that a conviction that has been set aside pursuant
to AS 12.55.085(e) is not a prior conviction for purposes of presumptive sentencing.").
35 Doe I, 92 P.3d at 406-07.
36 Id . at 407.
37 Id. at 409.
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38
reoffending." We held "that applying ASORA to Doe burdens his fundamental liberty
interests and right to procedural fairness arising out of the set-aside granted him in 1994,
39
such that the state must establish a compelling governmental interest."
Turning to the State's interest in applying ASORA to the defendant in Doe
I, we observed that "[w]hen the legislature enacted ASORA, it found that 'sex offenders
40 But the State's legitimate
pose a high risk of reoffending after release from custody.' "
interest did not extend to persons whose convictions had been set aside before ASORA
was enacted; those persons had the settled expectation that the State could no longer use
"the conviction or the underlying misconduct as grounds for compelling the defendant to
act as though he remains convicted, has never been rehabilitated, and continues to pose
a public danger."41
Given the central purpose of ASORA - to monitor offenders who "pose a
high risk of reoffending"42 - we cannot say that the regulation at issue here is "consistent
43 As
with and reasonably necessary to implement the statutes authorizing [its] adoption."
we recognized in Doe I, offenders who have had their convictions set aside have
demonstrated on an individualized basis that they are not within the class of offenders the
38 Id.
39 Id. at 411.
40 Id. (quoting ch. 41, § 1, SLA 1994).
41 Id.
42 Id. (quoting ch. 41, § 1, SLA 1994).
43 Manning v. State, Dep't of Fish &Game, 355 P.3d 530, 534 (Alaska 2015)
(alteration in original) (quoting Wilber v. State, Commercial Fisheries Entry Comm'n,
187 P.3d 460, 464 (Alaska 2008)).
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44
Act was meant to reach. Adding those offenders by regulation was therefore not
"reasonably necessary to implement" ASORA.
This is not to say that the legislature itself could not define "conviction" to
include those that had been set aside, as it later did. In 1999 Governor Tony Knowles
transmitted to the legislature a number of proposed changes to ASORA, including a new
definitional section intended to "clarify[] that 'conviction' includes convictions set aside
45 The governor noted that the new
under a [suspended imposition of sentence]."
definition would require approximately 185 additional individuals to register as sex
offenders.46 The bill itself reiterated a purpose "to clarify the law in order to validate and
affirm the long-standing policy contained in state regulation defining 'conviction' for
purposes of registration of sex offenders . . . under [ASORA] to include a variety of
judgments, including those set aside by suspended imposition of sentence under
AS 12.55.085."47
We are not bound by the contemporaneous pronouncements of thegovernor
48 that the 1999 legislation was intended to clarify the law rather than
and the bill sponsor
change it. Asking " 'whether a legislature which has amended a statute intends to change
or merely clarify the statute is usually fruitless' because the legislature's opinion as to the
meaning of a statute passed by an earlier legislature is no more persuasive than that of a
44 Doe I , 92 P.3d at 409.
45 1999 House Journal 188-89; 1999 Senate Journal 205.
46 1999 House Journal 189; 1999 Senate Journal 206.
47 Ch. 54, § 1, SLA 1999.
48
Minutes, House Fin. Comm. Hearing on S.B. 3, 21st Leg., 1st Sess.
1:45-3:00 (May 10, 1999) (testimony of Juli Lucky, Staff, Senator Rick Halford).
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49
knowledgeable commentator." Given the nature and purpose of set-aside
convictions - that they reflect a judicial finding of rehabilitation and generally have
limited effects going forward - we believe that the legislature would have expressly
included set-aside convictions in the 1994 version of ASORA had that been its intent at
the time. The legislature's express amendment to ASORA's coverage in 1999, affecting
185 individuals of questioned eligibility, supports this conclusion; it confirms that
identifying those who are subject to the law's severe strictures is an important policy
choice that must originate with the legislature - if not by express inclusion then by a
clear delegation of authority to the Department. The 1994 version of ASORA provided
neither.
We conclude that 13 AAC 09.900(a)(2), defining "conviction" to include
instances in which a court "set aside" the conviction, was not "consistent with and
50 The regulation was
reasonably necessary to implement" ASORA as enacted in 1994.
51 Once Maves's
therefore invalid as outside the scope of its enabling legislation.
Colorado conviction was set aside, it was not a conviction for purposes of registration
under the 1994 version of ASORA. With only one conviction, he was required to register
under ASORA for 15 years rather than life.
49 Hageland Aviation Servs., Inc. v. Harms , 210 P.3d 444, 448 n.12 (Alaska
2009) (quoting Hillman v. Nationwide Mut. Fire Ins. Co. , 758 P.2d 1248, 1252 (Alaska
1988)).
50 See Manning v. State, Dep't of Fish & Game, 355 P.3d 530, 534 (Alaska
2015) (quoting Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460, 464
(Alaska 2008)). We note that the current version of the regulation simply defines
"conviction" as having "the meaning given in AS 12.63.100" "unless the context
requires otherwise." 13 AAC 09.900(b) (2020).
51 Weaccordingly overrule Statev. Otness, 986 P.2d 890 (AlaskaApp. 1999).
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V. CONCLUSION
We REVERSE the superior court's decision and REMAND for further
proceedings consistent with this opinion.
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