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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John Albert Scudero Jr. v. State of Alaska (7/23/2021) sp-7544

John Albert Scudero Jr. v. State of Alaska (7/23/2021) sp-7544

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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.gov.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



JOHN  ALBERT  SCUDERO  JR.,                                      )  

                                                                 )     Supreme  Court  No.  S-17549  

                                Appellant,                       )     Court  of  Appeals  No.  A-12729  

                                                                 )  

                                                                                                                                 

           v.                                                    )     Superior Court No.  1KE-14-00672 CR  

                                                                 )  

                     

STATE OF ALASKA,                                                                           

                                                                 )     O P I N I O N  

                                                                 )  

                                Appellee.                                                                

                                                                 )    No. 7544 - July 23, 2021  

                                                                 )  



                                                             

                      C                               

                        ertified Question and Jurisdiction Transfer from the Court  

                                                                                                            

                      of Appeals of the State of Alaska, on appeal from the District  

                                                                                                         

                      Court   of   the   State   of   Alaska,   First   Judicial   District,  

                                                                

                      Ketchikan, Kevin Miller, Judge.  



                                                                                                                     

                      Appearances:  Phillip Paul Weidner, Phillip Paul Weidner &  

                                                                                                                

                      Associates, Anchorage, and A. Cristina Weidner Tafs, Law  

                                                                                                                 

                      Office   of   A.   Cristina   Weidner   Tafs,   Anchorage,   for  

                                                                                                         

                      Appellant. Kathryn Vogel and Laura Emily Wolff, Assistant  

                                                                                                       

                      Attorneys  General,  Anchorage,  and  Kevin  G.  Clarkson,  

                                                                                                           

                      Attorney General, Juneau, for Appellee.  Curtis W. Martin,  

                                                                                                    

                      Law Offices of Curtis W. Martin, Palmer, and Christopher  

                                                                                                                  

                      Lundberg,  Haglund  Kelley,  LLP,  Portland,  Oregon,  for  

                                                                                                   

                      Amicus Curiae Metlakatla Indian Community.  



                                                                                                                

                      Before:         Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                            

                      Carney, Justices.  [Borghesan, Justice, not participating.]  



                                            

                      MAASSEN, Justice.  


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

I.          INTRODUCTION  



                       A member of the Metlakatla Indian Community, a federally recognized  

                                                                                                                                  



Indian tribe, was convicted of several commercial fishing violations in State waters and  

                                                                                                                                               



fined $20,000.  He appealed his conviction and sentence to the court of appeals, which  

                                                                                                                                           



asked us to take jurisdiction of the appeal because of the importance of the primary issue  

                                                                                                                                             



involved: whether thedefendant's aboriginal and treaty-based fishing rights exempt him  

                                                                                                                                               



from State  commercial  fishing  regulations.                                   The  defendant  also  challenges  several  

                                                                                                                    



evidentiary rulings and the fairness of his sentence.  

                                                                         



                       Because we hold that the State has authority to regulate fishing in State  

                                                                                                                                             



waters in the interests of conservation regardless of the defendant's claimed fishing  

                                                                                                                                         



rights, and because we conclude that the trial court did not abuse its discretion in its  

                                                                                                                                                 



procedural rulings, we affirm the conviction.  We also affirm the sentence as not clearly  

                                                                                                                                          



mistaken,  except  for  one  detail  on  which  the  parties  agree:                                          the  district  court  was  

                                                                                                                                              



mistaken to  include a probationary  term in  the sentence.                                              We  remand  the case for  

                                                                                                                                                



modification of the judgments to correct that mistake.  

                                                                               



II.         FACTS AND PROCEEDINGS  

                                      



           A.          Facts  



                                                                                                       

                       1.         Background:  the Metlakatla Indian Community  



                                                                                     

                       The Metlakatla Indian Community is a federally recognized tribe located  



                                                                                      1  

                                                                                                                                           

on the only existing Indian reservation in Alaska.                                        Its Alaskan roots date from 1887,  



                                                                                                                                                

when about 800 citizens of the Tsimshian Nation migrated from British Columbia to the  



            1          See John          v.   Baker,   982   P.2d 738,                750   (Alaska   1999)   (explaining that   



"federal    recognition    'institutionalizes    the    tribe's    quasi-sovereign    status'    "    and  

"permanently establishes a government-to-government relationship between the United                                                       

States and the recognized tribe as a 'domestic dependent nation' ").                                                  



                                                                        -2-                                                                 7544
  


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

                                                                 2  

Annette Islands in southeastern Alaska.                             Four years later Congress created the Annette                  



                            3  

Islands Reserve,                                                                                                              

                               the stated purpose of which was "simply to allow [the Metlakatla  



                                                                                                                              

Indian Community] to remain [in the Annette Islands] under such rules and regulations  



                                                                                                                                             

as the Secretary of the Interior may impose, and give them some recognized footing at  



                   4  

                       

that place." 



                      In 1916 President Wilson proclaimed that the waters within 3,000 feet of  

                                                                                                                                             



the Annette Islands were part of the Reserve, "to be used by the Indians as a source of  

                                                                                                                                 



supply for [an] intended cannery, 'under the general fisheries laws and regulations of the  

                                                                                                                                            

United States as administered by the Secretary of Commerce.' "5  Federal regulations  

                                                                                                                              



provide that the fishery is "exclusively reserved for fishing by the members of the  

                                                                                                                                           



MetlakatlaIndian Community and such other Alaskan Natives as have joined or may join  

                                                                                                                                          



                                                                                   6  

them in residence on the aforementioned islands."   

                                                                      



                      The United States Supreme Court has addressed fishing rights disputes  

                                                                                                                                  



between the State of Alaska and tribal communities several times.  In Metlakatla Indian  

                                                                                                                                      



Community, Annette Islands Reserve v. Egan, the Court held that the Annette Islands  

                                                                                                                                                  



Reserve was under the jurisdiction of the Secretary of the Interior, who had the authority  

                                                                                                                                  



           2          Atkinson  v.  Haldane,  569  P.2d   151,   153  (Alaska   1977).  



           3          Id. ;  see  also  Alaska  Pac.  Fisheries  v.  United  States,  248  U.S.  78,  86  (1918).  



           4          Metlakatla  Indian  Cmty.,  Annette  Islands  Reserve  v.  Egan,  369  U.S.  45,  53  



(1962).   



           5          Id.  at  48-49  (quoting  39  Stat.   1777);  25  C.F.R.  §  241.2  (2021).  



           6          25  C.F.R.  §  241.2(b).   The  State  may  not  require  members  of  the  Metlakatla  



Indian  Community  "to  obtain  a  license  or  permit  .  .  .  to  fish  in  the  water  of  the  Annettte  

Islands  Reserve."   25  C.F.R.  §  241.2(c).  



                                                                      -3-                                                              7544
  


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

                                                                                                                                                     7  

to decide whether State regulations should apply within its borders.                                                                                    And in          Organized  



 Village of Kake v. Egan                             , with no reservation lands at issue, the Court held that the State                                                              



could regulate the fishing activities of federally recognized tribal members in State                                                                                                



waters, because the Court had "never held that States lack power to regulate the exercise                                                                                      



                                                                                                                                                                                        8  

of aboriginal Indian rights, such as claimed here, or of those based on occupancy."                                                                                                          



                                                                                                     

                              2.             Scudero's prior fishing cases  



                                                                                                                                                                                           

                              John Scudero is a member of the Metlakatla Indian Community and, as his  



                                                                                                                                                                                         

brief in this appeal describes him, "a particularly strong and vocal supporter of the  



                                                                                                                                                                           

Metlakatla Community's right to subsistence and commercial fish outside the 3000-foot  



                                                                                                                                                                             

zone." Scudero has engaged in "protest fishing" on other occasions, fishing in knowing  



                                                                                                                                                                                 

violation of State fishing laws "as a protest and an exercise of his right to Free Speech  



                                              

and historic rights."  



                                                                                                                                                                                

                              Scudero describes his first act of protest fishing as involving "the herring  



                                                                                                                                                                                           

fishery at Cat Island," where he fished without the proper permits.  In early 1994 he  



                                                                                                                                                                                          

"staged a protest of the halibut rules and regulations under the bridge and in front of the  



                                                                                                                                                                                            

channel near Juneau," after first alerting the authorities of his intentions.  As a result of  



                                                                                                                                                                                 

these incidents Scudero was charged with two violations of the commercial fishing  



                                                                                                                                                                                           

statutes,  but  the  charges  were  ultimately  dismissed.                                                                   Later  that  year,  according  to  



                                                                                                                                                                                   

Scudero,  he  responded  to  a  call  for  help  from a  fellow  fisherman  who  was  being  



                                                                                                                                                    

questioned by Alaska Fish and Game officers while fishing close to the boundary line  



                                                                                                                                                                                  

of the Annette Islands Reserve.  As Scudero describes it, he sped to assist his fellow  



                                                                                                                                                                               

fisherman, dropping his gill net in the water upon arrival at the scene.  He was charged  



                                                                                                                                                                          

with  and  convicted  of  three  violations  of  the  commercial  fishing  laws,  including  



               7              369  U.S.  at  53-56.  



               8              369  U.S.  60,  76  (1962).   



                                                                                             -4-                                                                                             7544  


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

commercial fishing in closed waters, commercial fishing without a permit, and trailing                                               



                                             9  

a gill net in closed waters.                                                                                                       

                                                 On appeal, the court of appeals recognized that because  



                                                                                                                                         

Scudero "asserted that he acted with intent to protest an unfair or unjust law, not with  



                                                                                                                                      

intent to take fish for commercial disposition, his defense, if accepted by the jury, would  

                                                                                                                           10   The court  

                                                                                                                                        

have negated an essential element of the two commercial fishing offenses." 



found that "Scudero was plainly entitled to assert his defense before the jury" but that he  

                                                                                                                                             



had been given an adequate opportunity to do so, and the court therefore affirmed his  

                                                                                                                                           

convictions.11  



                      In 2000 Scudero was again charged with commercial fishing without a  

                                                                                                                                              



permit.  He entered a no-contest plea and was sentenced in 2002.  Later in 2002 he was  

                                                                                                                                          



again charged with the same offense and entered a guilty plea; he was sentenced in 2003.  

                                                                                                                                                  



                      3.         The current case  

                                                         



                      The charges in this case arise from Scudero's fishing activities in 2014,  

                                                                                                                                       



when the Coast Guard found him fishing in State waters outside the Annette Island  

                                                                                                                                      



Reserve's exclusive fishing zone. He was charged under State law with fishing without  

                                                                                                                                    

a permit,12  fishing in closed waters,13  and unlawful possession of fish.14  

                                                                                                                        



           9          See  Scudero  v.  State,  917  P.2d  683,  684  (Alaska  App.   1996).  



           10         Id.  at  686.   



           11         Id.  at  686,  688.  



           12         AS  16.43.140(a)  ("A  person  may  not  operate  gear  in  the  commercial  taking  



of  fishery  resources  without  a  valid  entry  permit  or  a  valid  interim-use  permit  issued  by  

the  commission.").  



           13         5 Alaska Administrative Code (AAC) 33.310(c) (2021) ("Salmon may be  

                                                                                                                                             

taken by drift gillnets in the following locations only during fishing periods established  

                                                                                                                              

by  emergency order that  start on a  Sunday and close by emergency  order," and the  

                                                                                                                                           

                                                                                                                         (continued...)  



                                                                      -5-                                                              7544
  


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

                                B.                              Current Proceedings   



                                                                1.                             Trial  



                                                                In January 2015 the district court held a one-day jury trial. A Coast Guard                                                                                                                                                                                                                                                  



officer testified that he boarded Scudero's fishing vessel after he saw it fishing in closed                                                                                                                                                                                                                                                                                                



waters outside the Annette Islands Reserve.                                                                                                                                                                    The officer testified that Scudero admitted                                                                                                                      



he did not have a permit, he had approximately 45 coho salmon on board, and "his                                                                                                                                                                                                                                                                                                                     



intended plan was to take the fish and return to Metlakatla with them and sell them at the                                                                                                                                                                                                                                                                                                                  



plant."   



                                                                The   parties   disputed   whether   evidence   of   Scudero's   prior   convictions  



 should be admitted.                                                                             The court observed that the 1996 conviction was "very old" but                                                                                                                                                                                                                                           



concluded that, in combination with the 2002 and 2003 convictions, it was "highly                                                                                                                                                                                                                                                                                                    



probative on the intent issue."                                                                                                                  The court therefore admitted evidence of all three prior                                                                                                                                                                                          



convictions.   



                                                                Scudero testified that on September 23, 2014, he was "fishing to provide   



 for [his] family like [he's] done for almost 40, 45 years."                                                                                                                                                                                                                                He began to describe the                                                                                      



history of Native fishing rights, but the State objected on relevancy grounds.                                                                                                                                                                                                                                                                                            The court   



 sustained the objection, allowing Scudero to testify "with respect to whether or not he                                                                                                                                                                                                                                                                                       



was going to be selling the fish or what he was going to do with the fish"                                                                                                                                                                                                                                                                               but not about                          



the historical background of his claimed rights.                                                                                                                                                                                   



                                13                              (...continued)  



                                                                                                                                                                                                                                                   

 section at issue here "opens on the third Sunday of June.").  



                                14                              5 AAC 39.197 (2019) ("No person may possess, purchase, sell, barter or                                                                                                                                                                                                                    



transport fish within the state or within water subject to the jurisdiction of the state if that                                                                                                                                                                                                                                                                                                         

person knows or has reason to know that fish were taken or possessed in contravention  

                                                                                                                                                                                                                                                                                                                                                        

of 5 AAC 03-5 AAC 39.").                                                                              



                                                                                                                                                                                                       -6-                                                                                                                                                                                          7544
  


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

                                                         Scudero's testimony went on to define "fishing to provide for [his] family"                                                                                                                                                                                                       



as "providing so that [his] family has a way of life that has been done by the Tsimshian                                                                                                                                                                                                                                      



people . . . from [time immemorial]."                                                                                                                              He explained that this "way of life" included                                                                                                                    



"subsistence, bartering, commercial fishing and whatever ways . . . we [subsist] off the                                                                                                                                                                                                                                                                     



land in Indian Country."                                                                                  He also testified that he told the Coast Guard he believed he                                                                                                         



"was not breaking the law" because he was allowed to fish "at usual and custom[ary]                                                                                                                                                                                        



places outside the [Annette Islands] Reserve."                                                                                                                                                     



                                                        On cross-examination Scudero again admitted knowing he was outside the                                                                                                                                                                                                                                



Reserve's boundary and answered "yes" when asked if he was "engaged in commercial                                                                                                                                                                                                                                        



fishing." He also agreed that he had been convicted before of violating the same fishing                                                                                                                                                                                                                                                     



laws.   When asked if he thought his aboriginal rights included fishing without a permit                                                                                                                                                                                                                                                  



in State waters, he cited federal Indian law and explained:                                                                                                                                                                                       "Under the reserved right[s]                                                             



doctrine,whenPresidentWoodrowWilson proclaimed                                                                                                                                                                                   3,000 feetaround AnnetteIsland,                                                                              



at that time, he would have had to explicitly say that our rights were taken away from us,                                                                                                                                                                                                                                                                    



which they never were."                                                                                  



                                                        The jury returned guilty verdicts on all three charges, and the court set a                                                                                                                                                                                                                                 



date for sentencing.                                                                



                                                        2.                          Sentencing  



                                                        The  court  held  a  sentencing  hearing  in  September  2016.                                                                                                                                                                                                          The  court  

                                                                                                                                                                                                                                                                                                                                                  



considered the Chaney factors and applied a statutory aggravator because of Scudero's  

                                                                                                                                                                                                                                                                                                                                

prior convictions under the same statutes.15  The court determined that jail time would  



not be a deterrent and that fines were appropriate because of the crimes' economic  

                                                                                                                                                                                                                                                                                                                                



nature.  For commercial fishing without a permit, Scudero received a $20,000 fine, the  

                                                                                                                                                                                                                                                                                                                                                             



                            15  

                                                                                                                                                                                                                                                                                                                           

                                                        See AS 12.55.005 (enumerating factors courts must consider in sentencing,  

                                                                                                                                                                                                                                     

following State v. Chaney, 477 P.2d 441, 444 (Alaska 1970)).  



                                                                                                                                                                                -7-                                                                                                                                                                   7544  


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

                                      16  

mandatory minimum.                        The court also suspended his commercial fishing privileges and                                         



                                                                                                                       17  

licenses for five years and imposed a one-year probationary period.                                                                               

                                                                                                                            For each of the  



                                                                                                                                                  

other two convictions Scudero received a fine of $5,000 to run concurrently with the  



                                                                                                

$20,000 fine, as well as the same probationary period.  



                                                                                                                                                    

                       Scudero appealed to the court of appeals. The court of appeals asked us to  



                                                                                                                                         

take jurisdiction of the appeal under AS 22.05.015(b) on grounds that "the case involves  



                                                                                                                                                  

a significant question of law under the Constitution of the United States or under the  



                                                                                                                                                   

constitution of the state or involves an issue of substantial public interest that should be  

                                                            18   We agreed to take jurisdiction.  

                                                                                                                         

determined by the supreme court." 



III.        STANDARD OF REVIEW  

                                             



                                                                                              19  

                                                                                                                                          

                       We  review  questions  of  law  de  novo.                                    We  review  the  trial  court's  

                                                                                    



                                                                                                                                                 

evidentiary decisions for abuse of discretion, except for those evidentiary decisions that  



                                                                                                           20  

                                                                                                                                        

require  determinations  of  law,  which  we  review  de  novo.                                                   We  review  criminal  



            16         AS 16.43.970(g)(3).   



            17  

                                                                                                                                                  

                       The probationary periods are found in the written judgments although the  

                                                                                                                                                

court remarked at the sentencing hearing that no probation would be imposed.   We  

                                               

address this inconsistency below.  



            18         Scudero v. State, No. A-12729 (Alaska Court of Appeals Order, Aug. 5,  

                                                                                                                                                    

2019) at 2.  The court of appeals considered the jurisdictional issue raised by Scudero  

                                                                                      

to     be      "a     significant           question          of      law"       relating         to     questions           of     state-wide  

                                                                                                                                   

importance - "the ability of the State to regulate fishing in its waters" and challenges  

                                                                                                          

to regulations based on Article VIII of the Alaska Constitution that "implicate[] issues  

                                                                                                                                             

beyond the criminal law and involve[] a vital part of our state's economy."  Id.  

                                                                                                                                     



            19         Ebli v. State, Dep't of Corr., 451 P.3d 382, 387 (Alaska 2019).  

                                                                                                                          



            20         Hess v. State, 20 P.3d 1121, 1123 (Alaska 2001).  

                                                                                                  



                                                                         -8-                                                                  7544
  


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

sentences under a "clearly mistaken" standard and give deference to the sentencing                                        

court.21  



IV.	       DISCUSSION  



                                                                                                                                         

                      Scudero's main argument on appeal is that the State lacked jurisdiction to  



                                                                                                                                  

enforce its commercial fishing laws against him because his aboriginal fishing rights  



                                                                                                                                     

were  not  subject  to  State  interference.  He  also  challenges  several  evidentiary  and  



                                                                       

procedural rulings from trial, as well as his sentence.  



                                                                                                                                             

           A.	       Aboriginal Or Reserved Fishing Rights Do Not Preclude Enforcement  

                                                                                                       

                      Of Alaska's Commercial Fishing Laws In This Case.  



                                                                                                                                  

                      Scudero argues that members of the Metlakatla Indian Community retain  



                                                                                                                               

aboriginal fishing rights that predate Alaska statehood, permitting them to fish without  



                                                                                                                                  

interference in State waters.   He argues that the Metlakatla Indians are in "a much  



                                                                                                                             

stronger position, with broader sovereign, historic, and aboriginal rights" than members  



                                                                                                                                      

of other Alaska tribes because "the sovereign, historic, and aboriginal rights of the  



                                                                                                                                     

Tsimshian  Natives  of  Metlakatla  have  been  recognized  by  unilateral  statute  and  



                                                                                                                                 

presidential  proclamation,  and  the  Tsimshian  Nation  and  its  people  have  never  



                                                                                                                                 

relinquished, surrendered, or modified" these rights by treaty or statute. Scudero argues  



                                                                                                                                       

that these rights permit members of the Tsimshian Nation to fish in State waters for  



                                                                                                                        

subsistence  purposes,  which  traditionally  include  bartering  and  other  commercial  



                                                                                                                           

activities.   The Metlakatla Indian Community, as amicus curiae, supports Scudero's  



                                                                                                                                        

claim to unregulated fishing, arguing that its members have a "reserved right to fish, on  



                                                                                                                               

a non-exclusive basis, in the off-reservation waters surrounding the Reserve."  



                                                                                                                                   

                      Scudero raises several important and unresolved questions about the status  



                                                                                                                                

of  aboriginal  and  reserved  fishing  rights  for  citizens  of  the  Metlakatla  Indian  



           21        State  v.  Korkow,  314  P.3d  560,  562  (Alaska  2013).  



                                                                   -9-                                                                 7544  


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

Community.     But   we   do   not   need   to   reach   those   issues   today;   even   assuming   the  



existence of broad off-reservation fishing rights,Scudero'sappealmay be decided on the                                                                                                            



basis   of   well-established   principles governing                                                            the interrelationship                             of aboriginal or                 



treaty-based rights and the State's police powers.                                              



                               1.              The development of the "conservation necessity" principle                                                                 



                               We begin our analysis with the recognition that treaties, along with the                                                                                           



                                                                                                                                                                                                     22  

United States Constitution and federal statutes, "are the 'supreme Law of the Land.' "                                                                                                                     



                                                                                                                                                                                            

But "[e]ven where reserved by federal treaties, off-reservation hunting and fishing rights  



                                                                                                   23  

                                                                                                                                                                                                     

have been held subject to state regulation."                                                              Acceptable state regulation in this area is  



                                                                                                                                          24  

                                                                                                                                                                      

generally defined by reference to "conservation necessity."                                                                                      In Tulee v. Washington,  



                                                                                                                                                  

Tulee, a member of the Yakima tribe, appealed his state-court conviction for catching  



                                                                                                                                                                                                     25  

                                                                                                                                                                                                           

                                                                                                                                                                                           

salmon with a net outside the reservation without the license required by state law. 



                                                                                                                                                                                  

Tulee challenged the validity of the licensing statute "on the ground that it was repugnant  



                                                                                                                                                                                  

to a treaty made between the United States and the Yakima Indians," which preserved  



                                                                                                                                                                                               

to the tribe "the right of taking fish at all usual and accustomed places, in common with  



                22             McGirt v. Oklahoma                               , 140 S. Ct. 2452, 2462 (2020) (quoting U.S. Const.   



art. VI, cl. 2).          



                23             Organized Village of Kake v. Egan, 369 U.S. 60, 75 (1962).  

                                                                                                                                                                            



                24             See, e.g., Minnesota v.MilleLacs Band ofChippewa Indians, 526 U.S.172,  

                                                                                                                                                                                               

205 (1999) ("This 'conservation necessity' standard accommodates both the State's  

                                                                                                                                                                                         

interest in management of its natural resources and the [Indians'] federally guaranteed  

                                                                                                              

treaty  rights.");  People  v.  Patterson,  833  N.E.2d  223,  224  (N.Y.  2005)  ("In  its  

                                                                                                                                                                                                  

 'conservation  necessity'  line  of  cases,  the  United  States  Supreme  Court  has  long  

                                                                                                                                                                                             

experience in mediating between" Indian treaty rights and states' interest in regulating  

                                                                                                                                                                                 

hunting and fishing within their borders.).  

                                                                            



                25             315 U.S. 681, 682 (1942).  

                                                                           



                                                                                                -10-                                                                                         7544
  


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

                                                    26  

citizens of the Territory."                              He argued that the treaty gave him the right to fish "free                                                 



from state regulation of any kind," while the state argued that its regulation of fishing did                                                                            



not conflict with the treaty as long as "its license laws do not discriminate against                                                                           



                  27  

Indians."              



                           The Supreme Court rejected both arguments, concluding that "the state's  

                                                                                                                                               

construction of the treaty is too narrow and the appellant's is too broad."28                                                                            The Court  

                                                                                                                                                                   



held "that while the treaty leaves the state with the power to impose on Indians equally  

                                                                                                                                                                



with others such restrictions of a purely regulatory nature concerning the time and  

                                                                                                                                                                       



manner of fishing outside the reservation as are necessary for the conservation of fish,  

                                                                                                                                                                      

it forecloses the state from charging the Indians a fee of the kind in question here."29   The  

                                                                                                                                                                       



Court observed that the stated purpose of the licensing statute was both regulatory and  

                                                                                                                                                                       



revenue-producing, and that the regulatory purpose could be accomplished without  

                                                                                                                                                               

charging a fee.30                    Because "the imposition of license fees is not indispensable to the  

                                                                                                                                                                        



effectiveness of a state conservation program," it could not "be reconciled with a fair  

                                                                                                                                                                        



construction of the treaty," and the state statute was therefore "invalid as applied" to  

                                                                                                                                                                          

Tulee.31  



             26            Id.  at  682-83.  



             27            Id.  at  683-84.  



             28            Id.  at  684.  



             29            Id.  (footnote  omitted).  



             30            Id.  at  685.  



             31            Id.  Because Scudero's challenge  in this case is to  any State  regulation at  



all,  he  does  not  separately  address  whether  -  assuming  that  the  State  may  regulate  his  

activities  in  the interests of conservation  necessity  - its imposition of  licensing  or  permit  

fees  as  part  of  that  regulatory  scheme  violates  his  aboriginal  or  treaty  rights,  as  in  Tulee.   

                                                                                                                                                   (continued...)  



                                                                                   -11-                                                                             7544
  


----------------------- Page 12-----------------------

                            The Court cited these principles again in two later cases also involving                                                            



Indian fishing rights in Washington.                                             In   Puyallup Tribe v. Department of Game of                                                   



 Washington   (Puyallup I   ), the Court considered the state's attempt to regulate tribal                                                                               



members' use of set nets in fresh water streams; "[t]he nets used [were] concededly                                                                         

                                                                                                                                                          32   The treaty  

illegal if the laws and regulations of the State of Washington [were] valid."                                                                                            



at issue, like that in Tulee, reserved to the tribes "[t]he right of taking fish, at all usual and  

                                                                                                                                                                             

accustomed grounds and stations, . . . in common with all citizens of the Territory."33  

                                                                                                                                                                                      



The Court held that because "the manner  in which the fishing may be done and its  

                                                                                                                                                                               



purpose, whether or not commercial, are not mentioned in the Treaty," the state was  

                                                                                                                                                                            



allowed  to  regulate  "the  manner  of  fishing,  the  size  of  the  take,  the  restriction  of  

                                                                                                                                                        



commercial  fishing,  and  the  like  .  .  .  in  the  interest  of  conservation,  provided  the  

                                                                                                                                                                             

                                                                                                                                                                       34  The  

regulation meets appropriatestandards and does not discriminate against Indians."                                                                                            

                                                                                                                                                     



case was returned to the trial court for determination of "[w]hether the prohibition of the  

                                                                                                                                                                              



use of set nets in these fresh waters was a 'reasonable and necessary' . . . conservation  

                                                                                                                                                          

measure."35  



                            Five years later, in Department of Game of Washington v. Puyallup Tribe  

                                                                                                                                                                         



(Puyallup II), the Supreme Court held that the state could not limit steelhead fishing in  

                                                                                                                                                                                 



the Puyallup River to hook and line given the tribes' traditional use of nets for that  

                                                                                                                                                                            



              31            (...continued)
  



We  therefore  do  not  address  this  issue  either.
   



              32            391  U.S.  392,  396  (1968).   



              33            Id.  at  395.  



              34            Id.  at  398  (emphasis  in  original).  



              35            Id.  at  401-03.  



                                                                                      -12-                                                                                7544
  


----------------------- Page 13-----------------------

              36  

species.           The Court observed that "[t]he ban on all net fishing in the Puyallup River for                                                    



steelhead grants, in effect, the entire run to the sports fishermen," which discriminated                                          



against   the   Indians;   the   Court   ordered   the   state   to   make   another   attempt  to  fairly  

                                                                              37    Justice Douglas, writing for the Court,  

apportion the resource among user groups.                                                                                                       



provided further substance to the "conservation necessity" rationale for state regulation  

                                                                                                                                         



of resources otherwise subject to treaty rights:  

                                                                        



                        Rights can be controlled by the need to conserve a species;  

                                                                                                                     

                        and the time may come when the life of a steelhead is so  

                                                                                                                               

                        precarious in a particular stream that all fishing should be  

                                                                                                                               

                        banned until the species regains assurance of survival.  The  

                                                                                                                            

                        police power of the State is adequate to prevent the steelhead  

                                                                                                                   

                        from following  the  fate  of the  passenger  pigeon;  and  the  

                                                                                                                             

                        Treaty does not give the Indians a federal right to pursue the  

                                                                                                                              

                        last living steelhead until it enters their nets.[38]  

                                                                                               



The Ninth Circuit later expanded on Justice Douglas's observation, concluding, in the  

                                                                                                                                                      



context of gray whale hunting, that a legislative goal of "species preservation" was not  

                                                                                                                                                     

essential to a finding of "conservation necessity."39                                             The court found an acceptable  

                                                                                                                                        



conservation purpose in the federal Marine Mammal Protection Act's goal of making  

                                                                                                                                              



"informed, proactive decisions regarding the effect of marine mammal takes" - in that  

                                                                                                                                                     



            36          414  U.S.  44,  46-47  (1973).  



            37          Id.  at  46-47,  48-49.  



            38          Id.  at  49;  cf.  Lac  Courte  Oreilles  Band  of  Lake  Superior  Chippewa  Indians  



v.   Wisconsin,  653  F.   Supp.   1420,   1434-35  (W.D.  Wis.   1987)  (observing  that  the  two  

Puyallup  "decisions  are  somewhat  unclear  and  .  .  .  have  been  the  target  of  criticism,"  in  

part  due  to  "their  failure  to  explain  the  reason  why  the  state  may  intrude  for  the  particular  

purpose  of  conservation").  



            39          Anderson v. Evans, 371 F.3d 475, 499 (9th Cir. 2004).  

                                                                                                               



                                                                          -13-                                                                    7544
  


----------------------- Page 14-----------------------

case, "[w]hether the Tribe's whaling will damage the delicate balance of the gray whales                                                        

in the marine ecosystem."                      40  



                        The Supreme Court has consistently applied the "conservation necessity"  

                                                                                                                                          



principle. It held in Antoine v. Washington that the "appropriate standards" requirement  

                                                                                                                                       



for a valid conservation-based regulation - referred to in Puyallup II - "means that the  

                                                                                                                                                       



State must demonstrate that its regulation is a reasonable and necessary conservation  

                                                                                                                                     



measure,  .  .  .  and  that  its  application  to  the  Indians  is  necessary  in  the  interest  of  

                                                                                                                                                        

conservation."41                In the recent case of  Washington State Department of Licensing v.  

                                                                                                                                                         



Cougar Den, a plurality of the Court concluded that a state could not tax "a treaty- 

                                                                                                                                                

protected right . . . to travel on the public highway with goods for sale."42                                                       It cited Tulee  

                                                                                                                                                  



and Puyallup I as helping to define the limits on its holding:  that treaty rights are not  

                                                                                                                                                      



absolute but may be constrained by state regulation in certain areas, such as conservation  

                                                                                                                                      

in the context of hunting and fishing rights.43  

                                                                                   



            40          Id.  



            41          420  U.S.   194,  207  (1975)  (citing  Puyallup  II)  (emphasis  in  original).  



            42           139  S.  Ct.   1000,   1015  (2019).  



            43          Id. ;    see    also    id.    at          1025    (Roberts,    C.J.,    dissenting)    (recognizing  



"conservation  necessity"  principle  in  context  of  hunting  and  fishing  rights  while  arguing  

that  plurality  opinion  too  narrowly  defined  state's  authority  to  regulate  for  "health  and  

safety"  reasons);  Herrera  v.   Wyoming,   139   S.   Ct.   1686,   1695   (2019) (observing  that  

"States  can  impose  reasonable  and  nondiscriminatory  regulations  on  an  Indian tribe's  

treaty-based   hunting,   fishing,   and   gathering rights   on   state   land   when   necessary   for  

conservation");  Minnesota  v.  Mille  Lacs  Band  of  Chippewa  Indians,  526  U.S.  172,  205  

(1999)   ("We   have   repeatedly   reaffirmed   state   authority   to   impose   reasonable   and  

necessary  nondiscriminatory  regulations  on Indian  hunting,  fishing,  and  gathering  rights  

in  the   interest   of   conservation.");   Washington v. Wash.  State   Commercial  Passenger  

Fishing Vessel Ass'n, 443 U.S.  658, 682  (1979)  (citing  Puyallup I  for  proposition that  

                                                                                                                                   (continued...)  



                                                                          -14-                                                                     7544
  


----------------------- Page 15-----------------------

                         It is thus well settled that the State can regulate commercial fishing in its   



waters for conservation purposes, even by persons whose fishing rights are aboriginal   



and reserved by treaty.                      With this background, we turn to Scudero's case.                                    



                         2.	          Scudero's   convictions   fall   within   the   conservation   necessity  

                                      principle.   



                         The crimes of which Scudero was convicted are violations of the Limited                                                    



                                                                                                                   44  

Entry Act and of regulations enacted under the Act's authority.                                                                               

                                                                                                                       The Alaska Legislature  



                                                                                                                                               45  

                                                                                                                                                     

passed the Limited Entry Act in 1973 to regulate entry into State fisheries.                                                                         Alaska  



                                                                                                         

Statute 16.43.010(a) describes the legislative purpose:  



                                                                                                                  

                         It is the purpose of this chapter to promote the conservation  

                                                                                                                            

                         and  the  sustained  yield  management  of  Alaska's  fishery  

                                                                                                                    

                         resource and the economic health and stability of commercial  

                                                                                                                                     

                         fishing  in  Alaska  by  regulating  and  controlling  entry  of  

                                                                                                                             

                         participants  into  the  commercial  fisheries  in  the  public  

                                                                                                         [46]  

                                                                             

                         interest and without unjust discrimination. 



             43          (...continued)  



                                                                                                                                                     

"[a]lthough nontreaty fishermen might be subjected to  any  reasonable state fishing  

                                                                                                                                                             

regulation  serving  any  legitimate  purpose,  treaty  fishermen  are  immune  from  all  

                                                                                                                                                        

regulation save that required for conservation"); United States v. Dann, 873 F.2d 1189,  

                                                                                                                                                       

 1200 (9th Cir. 1989) ("Even Indian treaty rights, when shared with others on the public  

                                                                                                                                                             

lands or waters, are subject to reasonable regulation that is shown to be essential to the  

                                                                                                                                               

conservation of the common resources and does not discriminate against the Indians.").  



             44          AS 16.43.140(a) ("operat[ing] gear in the commercial taking of fishery  

                                                                                                                                                      

resources without a valid entry permit"); 5 AAC 33.310(c)(1)(B) (2020) (taking salmon  

                                                                                                                                                      

by drift gillnet during closed period); 5 AAC 39.197 (possessing or transporting fish  

                                                                                                                                                            

"taken or possessed in contravention of" other regulations).  

                                                                                         



             45          See Grunert v. State, 109 P.3d 924, 932-35 (Alaska 2005) (describing  

                                                                                                                                             

history of Limited Entry Act).  

                                                



             46          AS 16.43.010 ("Purpose and findings of fact").  

                                                                                                       



                                                                             -15-	                                                                       7544
  


----------------------- Page 16-----------------------

We have repeatedly recognized the Act's intertwined purposes of conserving fisheries                                                                                                                                                          



                                                                                                                                                              47  

resources and maintaining a healthy fishing industry.                                                                                                                                                                                               

                                                                                                                                                                      These purposes easily fall within  



                                                                                                                                                                                                                                         

the ambit of the "conservation necessity" principle.  Whatever the status of Scudero's  



                                                                                                                                                                                                            

aboriginal and reserved  rights, they do not shield him from the non-discriminatory  



                                                                                                                                                                                                                                          

operation of State fishing laws that are necessary for the conservation of the resource.  



                                                                                                                                                                                                                                                     

                     B.	                 The District Court Did Not Err When It Prevented Scudero From  

                                                                                                                                                                              

                                         Testifying About His Aboriginal Fishing Rights.  



                                                                                                                                                                                                                                                            

                                         When  precluding  Scudero  from  testifying  about  the  history  of  the  



                                                                                                                                                                                                                                                        

Metlakatla Indian Community and his claimed aboriginal fishing rights, the district court  



                                                                                                                                                                                                                                                   

determined that the testimony was irrelevant to the charged offenses.  Scudero argues  



                                                                                                                                                                                                                                

that this ruling violated his due process, free speech, and jury trial rights.  



                                                                                                                                                                                                                                     

                                         "We review questions of law presented by the [trial] court's evidentiary  



                                                                                                                                                                                                                               48  

                                                                                                                                                                                                                                                   

rulings de novo" and other evidentiary questions for an abuse of discretion.                                                                                                                                                          The State's  



                     47                  SeeJohnsv.Commercial                                                       FisheriesEntryComm'n                                                      , 758P.2d 1256,1263-64                           



 (Alaska 1988) (explaining CFEC's decision to limit number of boats in certain fishery                                                                                                                                                            

because of low level of fish as "in accord with the purposes of the Limited Entry Act");                                                                                                                                                             

Simpson v. State, Commercial Fisheries Entry Comm'n                                                                                                                           , 101 P.3d 605, 611 (Alaska                                      

2004) (observing that "                                                   Johns   . . . requires CFEC to meet the Act's two legislative                                                                                                

purposes of 'enabling fishermen to receive adequate remuneration and conserving the                                                                                                                                                                           

fishery' " (quoting                                       Johns, 758 P.2d at 1263));                                                           Matson v. State, Commercial Fisheries                                                       

Entry Comm'n                                  , 785 P.2d 1200, 1203 (Alaska 1990) (affirming CFEC's point system                                                                                                                                  

related to income dependence on fishery as consistent with and necessary "to the purpose                                                                                                                                                        

of   the   Limited   Entry   Act   to   conserve   the   fishery   resource   by   limiting   entry   while  

preventing unjust discrimination among applicants for permits");                                                                                                                                        Wickersham v. State,                          

 Commercial Fisheries Entry Comm'n                                                                                 , 680 P.2d 1135, 1142 (Alaska 1984) (stating that                                                                                        

application deadline furthered Limited Entry Act's purpose by restricting number of                                                                                                                                                                              

people involved in each fishery, thereby providing economic benefit to fishermen and   

furthering conservation of resource).                                                                             



                     48                  Hess v. State, 20 P.3d 1121, 1123 (Alaska 2001).  

                                                                                                                                                                                                 



                                                                                                                              -16-	                                                                                                                      7544
  


----------------------- Page 17-----------------------

                                                                                                                                                                49  

objections to Scudero's testimony were based on relevance.                                                                                                            As explained above, the                                   



State has the authority to enforce fishing laws necessary to conservation regardless of                                                                                                                                            



Scudero's aboriginal and treaty-based rights.                                                                                 And to the extent Scudero intended to                                                               



testify about issues of law, the testimony would have been inadmissible, as instructing                                                                                                             

the jury on the law was the province of the court.                                                                                  50  



                                    But  Scudero  argues  that  his  testimony  would  have  been  relevant  as  

                                                                                                                                                                                                                                 



evidence of his intent to "protest fish."  He points to the court of appeals opinion from  

                                                                                                                                                                                                                           



his  1994  convictions,  in  which  the  court  found  that  his  intent  to  fish  as  a  way  of  

                                                                                                                                                                                                                    

demonstrating political protest was an "integral aspect" of his defense.51                                                                                                                            The court of  

                                                                                                                                                                                                                                  



appeals agreed in that case that Scudero should be permitted to testify that "he acted with  

                                                                                                                                                                                                                             



intent to protest an unfair or unjust law, not with the intent to take fish for commercial  

                                                                                                                                                                                                         



disposition," because this testimony, "if accepted by the jury, would have negated an  

                                                                                                                                                                                                                                  

essential element of the two commercial fishing offenses."52  

                                                                                                                                                                    



                                    Here, as in that earlier case, the intent necessary to convict for commercial  

                                                                                                                                                                                                         



fishing violations was "the intent of disposing of [the fish] for profit, or by sale, barter,  

                                                                                                                                                                                                                       



                  49                Relevant evidence has "any tendency to make the existence of any fact that                                                                                                                 



is of consequence to the determination of the action more probable or less probable than                                                                                                                                     

it would be without the evidence."                                                             Murray E. Gildersleeve Logging Co. v. N. Timber                                                                       

Corp., 670 P.2d 372, 381 (Alaska 1983) (quoting Alaska R. Evid. 401).                                                                                                              



                  50                See Miller v. State, 778 P.2d 593, 597 (Alaska App. 1989) (explaining that  

                                                                                                                                                                                                                               

whether warrant was required to obtain blood sample was question of law "plainly  

                                                                                                                                                                                                                  

beyond the competence of a lay witness"); see also Jury Instr. No. 1 given in State v.  

                                                                                                                                                                                                                                   

Scudero, No. 1KE-14-672 CR (Alaska Super., Jan. 14, 2014) ("After you have heard all  

                                                                                                                                                                                                                                  

of the evidence, I will instruct you on the law that you must apply in reaching your  

                                                                                                                                                                                                 

verdict.").  



                  51                Scudero v. State, 917 P.2d 683, 686 (Alaska App. 1996).  

                                                                                                                                                                           



                  52                Id.  



                                                                                                               -17-                                                                                                        7544
  


----------------------- Page 18-----------------------

                                                                                            53  

trade, or in commercial channels."                                                                Scudero admitted that was his intent.                                                                Regardless  



of whether he was also protest fishing, the intent necessary for his conviction was                                                                                                                                        



undisputed.   The court did not abuse its discretion by excluding Scudero's testimony                                                                                                                       

about the historical underpinnings of his intent to protest fish.                                                                                                    54  



                  C.	               The  District  Court  Did  Not  Abuse  Its  Discretion  By  Admitting  

                                                                                                                                                                                                       

                                    Evidence Of Scudero's Prior Convictions.  

                                                                                                                       



                                    Scudero also challenges the district court's decision to admit evidence of  

                                                                                                                                                        



his 1996, 2002, and 2003 convictions for commercial fishing in State waters without a  

                                                                                                                                                                                                                                   



permit.                 "[T]rial judges have discretion  to determine when  prior  bad  act evidence,  

                                                                                                                                                                                                            



including evidence of prior convictions, is admissible at trial.  This is a balancing test  

                                                                                                                                                                                                                             



which trial judges perform under [Alaska] Evidence Rule 404(b)(1) and Evidence Rule  

                                                                                                                                                                                                                          

403."55                                                                           

                     Under Evidence Rule 404(b)(1), "evidence of other crimes, wrongs, or acts is  



                                                                                                                                                                                                                                 

not admissible if the sole purpose for offering the evidence is to prove the character of  



                                                                                                                                                                                                              

a person in order to show that the person acted in conformity therewith.  It is, however,  



                                                                                                                                                                                                      

admissible for other purposes, including, but not limited to, proof ofmotive, opportunity,  



                                                                                                                                                                                                                          

intent, preparation, plan, knowledge, identity, or absence of mistake or accident."  And  



                                                                                                                                                                                                                                 

Evidence Rule 403 allows relevant evidence to be excluded "if its probative value is  



                  53	              AS 16.05.940(5) (defining "commercial fishing").                                                             



                  54                On the same rationale we reject Scudero's argument that the trial court                                                                                                             



erred by denying him an evidentiary hearing "so he could present evidence from himself                                                                                                                             

and other members of the Tsimshian Nation and the [Metlakatla Indian Community]  

                                                                                                                                                                                                    

regarding [their] traditional, indigenous, aboriginal fishing practices."                                                                                                                     



                  55               Morrow v. State, 80 P.3d 262, 267 (Alaska App. 2003).  

                                                                                                                                                                       



                                                                                                              -18-	                                                                                                      7544
  


----------------------- Page 19-----------------------

outweighed   by  the   danger   of   unfair   prejudice."     We   will   reverse   the   trial   court's  

balancing exercise only for an abuse of discretion.                                               56  



                          Scudero  argues  that  the  prior  convictions  should  have  been  excluded  

                                                                                                                                                      



because they were more than ten years old, proved nothing other than that "he did it  

                                                                                                                                                                      



before and he's done it again," and were therefore more prejudicial than probative.  The  

                                                                                                                                                                 



districtcourt acknowledged theconvictions' agebut didnot believethat this significantly  

                                                                                                                                                 



reduced their probativevaluewith regard toScudero'sintent to illegally commercial fish.  

                                                                                                                                                                          



And it concluded  that the convictions were not unfairly  prejudicial because it  was  

                                                                                                                                                                



unlikely the jurors would convict Scudero "simply because there [were]. . . other priors,"  

                                                                                                                                                          



and the court would instruct them not to do so.  

                                                                                             



                          We conclude that there was no abuse of discretion in the admission of this  

                                                                                                                                                                  



evidence.  Even if the convictions could have been unfairly prejudicial on the issue of  

                                                                                                      



Scudero's intent, any abuse of discretion in the court's Evidence Rule 403 balancing was  

                                                                                                                                                                 



necessarily harmless because of Scudero's own admissions about the intent necessary  

                                                                                                                                                      



for conviction:  that he was commercial fishing and that he knew he was fishing outside  

                                                                                                                                                           



the exclusive zone without a permit.  And finally, in explaining "other acts" evidence to  

                                                                                                                                                                     



the jury at the close of trial, the court instructed that "[t]he prosecution cannot meet its  

                                                                                                                                           



burden simply by showing that the defendant has committed similar acts in the past."  

                                                                                                                                                                          

"Ordinarily we presume that a jury follows the court's limiting instructions,"57   and,  

                                                                                                                                                                



without a compelling reason to think otherwise, we assume the jury did so here.  

                                                                                                                                                             



             56           Adkinson v. State                 , 611 P.2d 528, 532 (Alaska 1980).                                    



             57           Dailey v. State             , 65 P.3d 891, 897 (Alaska App. 2003);                                       see also Bradley v.                



State, 197 P.3d 209, 216 (Alaska App. 2008) (applying presumption that jury followed                                                                    

cautionary instruction when judge mistakenly informed jury that defendant had been  

                                                                                                                                                               

charged with felony DUI).                



                                                                                -19-                                                                           7544
  


----------------------- Page 20-----------------------

               D.	            Scudero's Sentence Was Not Clearly Mistaken, With The Exception                                                                            

                              Of The Erroneous Imposition Of Probation.                                       



                              As part of his sentence Scudero was required to pay concurrent fines for the                                                                                 



three offenses totaling $20,000.                                          He first challenges the sentence by arguing that the                                                            



court could not impose a fine without first inquiring about his ability to pay.                                                                                           But as the       



                                                                                                                                                                    58  

State   correctly   points   out,   this   specific   inquiry   is   no   longer   required.                                                                                            

                                                                                                                                                                             The  fine  



                                                                                                                                                                                        

enforcement statute, AS 12.55.051, grants a right to a hearing upon request "at any time  



                                                                                                                                                                                

that the defendant is required to pay all or a portion of the fine"; this adequately protects  



                                                                                                                                                                                             

the defendant's due process right not to be imprisoned solely because of an inability to  



          59  

pay.            



                                                                                                                                                                                            

                              Scudero's second argument is that a $20,000 fine is so excessive and so  



                                                                                                                                                                                   

disproportionate  to  his  offenses  that  it  violates  both  the  Alaska  and  United  States  



                                                                                                                                             

Constitutions, and that it "will chill and deter protest fishing."  He also argues that the  



                                                                                                                                                                                  

court should have suspended the fine, and that it should not have suspended his fishing  



                                                                                                                                                                                              

privileges  because  the  offenses  were  economic  and  the  punishment  "could  have  a  



                                                               

significant impact" on him.  



                                                                                                                                                                             

                              "Sentencing decisions are reviewed under the clearly mistaken standard,  



                                                                                                                                                                                             

giving  deference  to  the  sentencing  court.                                                         '[T]he  clearly  mistaken  test  implies  a  



                                                                                                                                                                      

permissible range of reasonable sentences which a reviewing court, after an independent  



               58             Dodge   v.  Municipality   of  Anchorage ,   877 P.2d   270,   272   (Alaska   App.  



 1994).  



               59             AS  12.55.051(c)  provides,  in  part:   "A  defendant  who  has  been  sentenced  



to  pay  a  fine  or  restitution  may  request  a  hearing  regarding  the  defendants'  ability  to  pay  

the  fine  or  restitution  at  any  time  that  the  defendant  is  required  to  pay  all  or  a  portion  of  

the  fine  or  restitution."  



                                                                                            -20-	                                                                                     7544
  


----------------------- Page 21-----------------------

                                                                              60  

review of the record, will not modify.' "                                          "Under this standard 'the sentence will be                                    



modified   only   in   those   instances   where   the   reviewing   court   is   convinced   that   the  

sentencing court was clearly mistaken in imposing a particular sentence.' "                                                                    61  



                          Scudero's fine is neither excessive nor disproportionate to the offenses.  

                                                                                                                                                                       



The court imposed the statutory minimum fine, and "judgments about the appropriate  

                                                                                                                                                

                                                                                                                                         62   The court of  

punishment for an offense belong in the first instance to the legislature."                                                                                       

                                                                                                                   



appeals explained in McNabb v. State why the legislature may have chosen to impose  

                                                                                                                                                        



relatively large fines for violations of commercial fishing statutes:   they "reflect the  

                                                                                                                                                                



heavily regulated nature of the industry, the large profits which can occur from illegal  



fishing, and the value of the resource to the citizens of the state. The fines imposed may  

                                                                                                                                                              



be designed to punish violators and need not reflect the profit the defendant received  

                                                                                                                                                     

from a violation."63  

              



                          However, the parties agree on one error in the written judgments:  each of  

                                                                                                                                                                  



them includes a one-year probationary term, even though the judge stated on the record  

                                                                                                                                                          



at Scudero's sentencing hearing that probation would not be required.  "As a general  

                                                                                                                                                       



rule, when the terms of a defendant's sentence as stated in the court's written [judgment]  

                                                                                                                                                 



differ from the terms of the sentence announced orally by the sentencing judge at the  

                                                                                                                                                                



             60          State v. Korkow                , 314 P.3d 560, 562 (Alaska 2013) (alteration in original)                                   



(citation omitted) (quoting                         State v. Hodari              , 996 P.2d 1230, 1232 (Alaska 2000)).                        



             61          State v. Tofelogo, 444 P.3d 151, 155 (Alaska 2019) (quoting McClain v.  

                                                                                                                                                                   

State, 519 P.2d 811, 813-14 (Alaska 1974)).  

                                                                        



             62           United States v. Bajakajian, 524 U.S. 321, 336 (1998).  

                                                                                                                     



             63           860 P.2d 1294, 1298-99 (Alaska App. 1993).  

                                                                                                                  



                                                                               -21-                                                                         7544
  


----------------------- Page 22-----------------------

                                                                                                     64  

defendant's sentencing hearing, the oral sentence controls."                                              



                                                                                                                                       

                       We remand to the district court for removal of the probationary periods  



                                                                                                                                       

from the judgments.  In all other respects, the sentence is not clearly mistaken.  



V.         CONCLUSION  



                       We AFFIRM Scudero's convictions and REMAND to the district court for  

                                                                                                                                               



modification of the judgments to remove the probationary periods.  

                                                                                                                   



           64         Marunich  v.  State,   151  P.3d  510,  514  (Alaska  App.  2006).  



                                                                      -22-                                                                     7544  

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