Chinuhuk v. State

         Consolidated Appeals from the Superior Court Trial Court Nos. 3AN-09-9305 CR, 3AN-07-1674 CR, 3AN-09-9927 CR, 4BE-06-846 CR, & 2NO-07-832 CR, Third Judicial District, Anchorage, Gregory A. Miller, Kevin M. Saxby, and Michael R. Spaan, Judges.

          Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellants.

          Timothy W. Terrell, 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 Hanley, District Court Judge. ^[*]

          OPINION

          MANNHEIMER, JUDGE.

         In 2006, the Alaska Legislature amended AS 12.55.125 (the statute that prescribes the sentences for felonies) by adding subsection (o). ^[1] This new subsection created a special sentencing rule that applied to most defendants convicted of sexual felonies (all except those defendants who are subject to a mandatory term of 99 years' imprisonment).

         Under subsection (o), the superior court was required to suspend a specified amount of the defendant's sentence of imprisonment, and to place the defendant on probation for a specified number of years after the defendant finished serving their active term of imprisonment.

         Normally, under Alaska common law, a defendant is entitled to reject a sentence that calls for probation and suspended jail time (in favor of a sentence that consists wholly of active imprisonment). ^[2] But AS 12.55.125(o) declared that the special terms of probation specified in the statute "[could] not be suspended or reduced".

         The five defendants in this consolidated appeal were convicted of sexual felonies, and they were sentenced in accordance with subsection (o). All five defendants received sentences that included suspended jail time, and they were all ordered to serve a term of probation after they completed their active terms of imprisonment.

         Each of the five defendants later violated the conditions of their probation. And at their ensuing probation revocation hearings, the defendants asked the superior court to (1) impose all of their remaining suspended jail time, and then (2) terminate their probation - even though the defendants had not yet spent the minimum number of years on probation specified in subsection (o).

         In all five cases, the superior court imposed the defendants' remaining jail time, but the court refused to honor the defendants' rejection of further probation. The court ruled that, because subsection (o) declared that the special term of probation could not be "suspended or reduced", the five defendants had no right to reject further probation (and the court had no authority to end the defendants' probation) until the defendants had spent the minimum number of years on probation specified in the statute.

         The five defendants appealed the superior court's refusal to end their terms of probation, and we consolidated these appeals for decision.

         Why we reject the defendants' contention that these appeals are moot

         The procedural posture of this case changed in the summer of 2016, when the legislature repealed AS 12.55.125(o). See SLA 2016, ch. 36, § 179. Following the repeal of subsection (o), the five defendants jointly filed a motion asking this Court to dismiss their appeals as moot. In this motion, the defendants argued that, because subsection (o) had been repealed, they were now entitled to exercise their normal right under Alaska law to reject any further probation.

         The State opposed the defendants' motion. In its opposition, the State relied on AS 01.10.100(a) - a statute which codifies the general principle that the legislature's enactment or repeal of a statute is not retroactive unless the enacting or repealing session law declares so:

(a) Therepealor amendment of a law does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under that law, unless the repealing or amending act so provides expressly. The law shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability.

         More specifically, the State argued that AS 12.55.125(o) imposed a special type of penalty on defendants convicted of sex offenses - a period of probation that ran for the specified number of years, and that could not be suspended or reduced. Relying on AS 01.10.100(a), the State argued that the repeal of AS 12.55.125(o) did not "extinguish" this special penalty for defendants who had already been sentenced under the statute (because the repealing legislation did not declare that the repeal was retroactive). Thus, the State concluded, the five defendants in this case were still subject to a probation that could not be reduced, even if the defendants wanted to exercise their normal right to reject probation.

         We conclude that the State is correct in asserting that the special probation requirement of subsection (o) continues to govern the defendants' sentences even though subsection (o) was repealed in 2016. In reaching this conclusion, we are guided by the United States Supreme Court's decision in Warden of Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974).

         The defendant in Marrero was convicted of narcotics offenses under federal law. Marrero was a second offender and, at that time, federal sentencing law declared that defendants in Marrero's situation were not eligible for parole. ^[3] But Congress later enacted a comprehensive revision of the drug sentencing laws - and, under the revised law, defendants in Marrero's situation were eligible for ...