EDWARD CHINUHUK, WILLIAM ALEXIE, HERMAN MALUTIN, CHRISTOPHER WASILI, and ROSS APANGALOOK, Appellants,
STATE OF ALASKA, Appellee.
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.
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. [*]
2006, the Alaska Legislature amended AS 12.55.125 (the
statute that prescribes the sentences for felonies) by adding
subsection (o).  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).
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.
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).  But AS 12.55.125(o) declared that the
special terms of probation specified in the statute
"[could] not be suspended or reduced".
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.
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).
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
five defendants appealed the superior court's refusal to
end their terms of probation, and we consolidated these
appeals for decision.
we reject the defendants' contention that these appeals
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
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.
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
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).
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.  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