from the District Court, No. 3AN-16-4699 CR Third Judicial
District, Anchorage, Douglas Kossler, Judge.
L. Goldberg, Denali Law Group, Anchorage, for the Appellant.
E. Stanley, Assistant Municipal Prosecutor, and William D.
Falsey, Municipal Attorney, Anchorage, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
a jury trial, Eric Scott Penetac was found guilty of two
counts of child neglect under the Anchorage Municipal Code
(AMC). The two counts were merged at sentencing,
for a single municipal class A misdemeanor conviction.
Penetac was subsequently sentenced to 365 days in jail with
290 days suspended (75 days to serve).
appeal, Penetac argues that his sentence is illegal because
it exceeds the 30-day presumptive maximum sentence that he
would likely have faced if he had been convicted of a class A
misdemeanor under state law. According to Penetac, the more
lenient law that governs sentencing for state misdemeanors
(specifically, AS 12.55.135) preempts any inconsistent
municipal sentencing law. Penetac also argues that the
Municipality's own code (specifically, AMC 08.05.020.E)
provides that all sentencing under the municipal code is
governed by AS 12.55. Lastly, Penetac argues that failure to
apply the state sentencing scheme to municipal offenders
violates the Equal Protection Clause of the Alaska
reasons explained here, we reject these arguments and affirm
we conclude that AS 12.55.135 does not control Penetac's
was convicted of child neglect under the Anchorage Municipal
Code. The municipal code classifies child neglect as a class
A misdemeanor,  and the code authorizes sentences of up to
one year in jail for all municipal class A
misdemeanors. In contrast, AS 12.5 5.13 5, the Alaska
statute setting out the permissible sentences for state
misdemeanors, limits sentences for most state class A
misdemeanors to 30 days unless certain circumstances (not
present here) are demonstrated.
appeal, Penetac argues that, in light of this difference
between the state sentencing provision and the municipal
code, the district court was required to sentence him under
the more lenient state sentencing law.
argument is based on a misunderstanding of the interaction
between municipal codes and state law under the Alaska
Constitution's "home rule"
provision. As a home rule city, Anchorage is granted
relatively broad powers; the state constitution declares that
"[a] home rule borough or city may exercise all
legislative powers not prohibited by law or by
home rule municipal ordinance is challenged as invalid under
state law, we apply the test set out by the Alaska Supreme
Court more than forty years ago in Jefferson v.
A municipal ordinance is not necessarily invalid in Alaska
because it is inconsistent or in conflict with a state
statute. The question rests on whether the exercise of
authority has been prohibited to municipalities. The
prohibition must be either by express terms or by implication
such as where the statute and ordinance are so substantially
irreconcilable that one cannot be given its substantive
effect if the other is to be accorded the weight of
the fact that the penalties for offenses designated
"class A misdemeanors" under the municipal code may
be inconsistent with the penalties for some offenses
designated as "class A misdemeanors" under state
law does not, by itself, render the municipal penalties
that there is, in fact, a statute-AS 29.25.070(g) - that
prohibits municipalities (including home rule municipalities)
from imposing a greater punishment for a municipal offense if
there is a "comparable state offense under AS 11 or AS
28 with elements that are similar to the municipal
ordinance." But Penetac does not argue that there is
a state crime comparable to the Anchorage municipal offense
of child neglect. In the absence of any ...