from the Superior Court, CR Third Judicial District,
Anchorage, Trial Court No. 3AN-12-11692 Michael Spaan, Judge.
F. DeWitte, Assistant Public Advocate, and Richard Allen,
Public Advocate, for the Appellant.
Charles D. Agerter, Assistant Attorney General, Office of
Special Prosecution (brief), and Michal Stryszak, Assistant
Attorney General, Office of Criminal Appeals, Anchorage
(supplemental brief), and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
McFarland, Assistant Public Defender, and Quinlan Steiner,
Public Defender, for the Alaska Public Defender Agency as
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
to a plea agreement, Kevin Patrick Maguire pleaded guilty to
misdemeanor criminal contempt for nonpayment of child
support. The plea agreement specified that Maguire
would receive a wholly suspended sentence with the amount of
suspended time and the length of probation to be determined
by the court. The sentencing court accepted the plea
agreement and imposed a suspended sentence of 240 days and 5
years' probation. Maguire appeals, arguing that the
5-year term of probation is excessive.
reasons explained here, we find no merit to this claim. We
therefore affirm Maguire's sentence.
we conclude that we have jurisdiction to hear this
first question we must decide in this appeal is whether we
have jurisdiction to hear it. Under AS 12.55.120(a) and
Alaska Appellate Rule 215(a)(1), a defendant has no right to
appeal a misdemeanor sentence of imprisonment as excessive
unless the sentence exceeds 120 days to serve. The defendant
is entitled, however, to file a petition for discretionary
review to the Alaska Supreme Court so long as the term of
imprisonment is unsuspended.
current case, Maguire received a fully suspended sentence and
he acknowledges that he cannot appeal this suspended sentence
as excessive under AS 12.55.120(a) and Appellate Rule
215(a)(1). But he argues that he is entitled to appeal his
term of probation as excessive under our prior decision in
Allen v. Anchorage
ten years ago, in Allen, this Court declared (by a
two-to-one majority) that the statutory bar against excessive
sentence appeals involving misdemeanor sentences of less than
120 days to serve did not apply to
"non-term-of-imprisonment sentence appeals
(e.g., appeals challenging probation conditions,
fines, forfeitures, and license
Mannheimer dissented from this holding. In his dissent,
Judge Mannheimer noted that this Court had been inconsistent
in its approach to this question, and that the Court's
only prior published decision on this issue, Haggren v.
State, 829 P.2d 842, 845 (Alaska App. 1992), was
directly contrary to the holding in
recent years, we have issued unpublished decisions that are
arguably inconsistent with Allen' s resolution
of this jurisdictional question. Given our own recent failure
to adhere consistently to the rule in Allen, we
invited the parties to this appeal, and the Alaska Public
Defender Agency as amicus curiae, to submit briefing on
whether Allen should be overturned in favor of the
view adopted by the dissent in that case-the view that this
Court has no jurisdiction to ...