Edward S. YAKO, Appellant,
STATE of Alaska, Appellee.
Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and E. SMITH, Superior Court Judge. [*].
Edward S. Yako was convicted of bootlegging— i.e., selling alcoholic beverages without a license— in Bethel. The issue presented in this appeal is whether Yako should be convicted of a felony or a misdemeanor.
The unlicensed sale of alcoholic beverages is normally a class A misdemeanor. See AS 04.16.200(a). However, the offense is a class C felony if the State proves that it occurred in a " local option" community— that is, in a community which has voted to ban or restrict the sale, importation, and/or possession of alcoholic beverages pursuant to one of the provisions of AS 04.11.491. See AS 04.16.200(b).
(See also Morgan v. State, 661 P.2d 1102, 1102-03 (Alaska App.1983), where this Court held that the provisions of AS 04.16.200(b) are not merely factors that can enhance a defendant's sentence; rather, AS 04.16.200(b) defines the separate substantive offense of felony bootlegging.)
Yako committed his offense in April 2009. At that time, Bethel was a " dry" community; that is, Bethel had exercised its local option under AS 04.11.491(a)(1) to ban the sale of alcoholic beverages. Accordingly, Yako was indicted for a felony.
But in October 2009, while Yako's case was still pending in the superior court, the voters of Bethel repealed the local ban on the sale of alcohol.  The voters' decision became effective
on November 1, 2009 (the first day of the month following the certification of the local election).  Yako was tried (and found guilty) in early February 2010.
At his trial, and later at his sentencing in September 2010, Yako did not dispute that his offense was a felony— i.e., that the severity of his offense should be judged according to the state of the law in Bethel at the time of his offense. And Yako received a felony-level sentence: 60 months' imprisonment with 20 months suspended.
But in March 2012, after Yako was sentenced for a probation violation, he filed a motion in the superior court seeking immediate release from prison. In this motion, Yako argued that his offense should have been treated as a misdemeanor because of the intervening change in Bethel law.
The superior court did not vacate Yako's felony judgement. However, the court released Yako from further correctional supervision— by modifying Yako's sentence to ...