Ralph G. HESS, Appellant,
STATE of Alaska, Appellee.
from the Superior Court, Second Judicial District, Kotzebue,
Angela Greene, Judge. Trial Court No. 2KB-06-00670 CR
R. Webb, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
W. Terrell, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior
2006, Ralph G. Hess was charged with three counts of
first-degree sexual assault and two counts of first-degree
burglary after he broke into a residence and sexually
assaulted the woman who lived there. These charges were
resolved in the middle of Hesss trial, when Hess entered
into a plea bargain with the State. Under the terms of this
agreement, Hess pleaded guilty to a single count of
first-degree burglary under AS 11.46.300(a)(1) (unlawful
entry of a residence with intent to commit a crime), and the
remaining charges were dismissed.
months later, Hess filed an application for post-conviction
relief in which he alleged that his defense attorney had
misinformed him regarding the terms of the plea bargain.
After holding a hearing to investigate these claims, the
superior court found that Hess had received accurate
information about the terms of the plea bargain, and that his
contrary testimony was "simply not credible." The
superior court therefore denied Hesss application for
post-conviction relief, and this Court affirmed the superior
than two years after this Court affirmed the superior courts
ruling, Hess filed an application under AS 12.73.020, seeking
DNA testing of certain evidence in his case. This statute
directs a court to order post-conviction DNA testing if the
defendants case satisfies eleven factual and procedural
requirements. The first of these statutory requirements is
that the defendant was convicted of a felony defined in AS
was convicted of burglary, a felony defined in AS 11.46
rather than AS 11.41. Because of this, the superior court
denied Hesss application for DNA testing.
now appeals the superior courts decision. He argues that
even though, on its face, the DNA testing statute applies
only to cases where the defendant was convicted of a felony
defined in AS 11.41, the statute should be construed as also
including cases like his — cases where (1) the
defendant was originally charged with a felony
defined in AS 11.41 (for example, sexual assault), and (2)
the defendant was ultimately convicted of burglary under the
theory that the defendants target crime was a felony defined
in AS 11.41.
does not follow the "plain meaning" rule of
statutory construction. Even if the language of a statute
is apparently clear and unambiguous, Alaska law employs a
"sliding scale" analysis that allows a court to
consider the legislatures intent when interpreting the
statute, even when the literal wording of the statute
conflicts with that legislative intent. Nevertheless,
"the plainer the language of the statute, the more
convincing [any] contrary legislative history must be"
before a court can depart from the plain meaning of the
the pertinent language of AS 12.73.020 is plain and
unambiguous: subsection (1) of this statute declares that the
statute applies only if the defendant was convicted of a
felony defined in AS 11.41. As a result, in order for Hess to
prevail in this appeal, we must be persuaded that the
legislative history of AS 12.73.020 convincingly shows that
the legislature actually intended to require DNA testing even
when a defendant was convicted of some other type of crime.
legislative history of AS 12.73.020 does not demonstrate any
legislative purpose different from what the plain language of
the statute conveys. Indeed, the legislative history of AS