Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
JASON D. RAY, )
) Supreme Court No. S-17645
Petitioner, )
) Court of Appeals No. A-12135
v. ) Superior Court No. 3KO-13-00627 CR
)
STATE OF ALASKA, ) OPINION
)
Respondent. ) No. 7605 – July 22, 2022
)
Certified Question from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Steve W. Cole,
Judge.
Appearances: Emily Jura, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for
Petitioner. Timothy W. Terrell, Assistant Attorney General,
Anchorage, and Clyde “Ed” Sniffen, Jr., Acting Attorney
General, Juneau, for Respondent.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney,
and Borghesan, Justices
BORGHESAN, Justice
CARNEY, Justice, dissenting.
I. INTRODUCTION
In Henry v. State the court of appeals held that a defendant who entered a
plea agreement providing for a specific period of probation has the right, when being
sentenced for a subsequent probation violation, to reject further probation and to serve
a sentence of active imprisonment only.1 Now the court of appeals has certified to us the
question of whether the legislature intended to abrogate that right when it enacted
AS 12.55.090(f).2 We conclude that it did. Although AS 12.55.090(f) does not
expressly mention a defendant’s right to reject probation, its plain text precludes a judge
from reducing or terminating a previously-agreed-upon period of probation unless both
the prosecution and the defendant agree, and the legislative history does not persuade us
that the legislature intended something other than the plain meaning of the language it
used.
II. FACTS AND PROCEEDINGS
A. Superior Court Proceedings
Jason Ray was arrested in October 2013 for stealing a pair of boots from
a grocery store in Kodiak. Because Ray had two prior theft convictions, the State
charged him with theft in the second degree. Ray pleaded guilty as part of a plea
agreement pursuant to Alaska Criminal Rule 11.3 The plea agreement called for Ray to
receive a sentence of 24 months’ imprisonment with 20 months suspended, followed by
three years of supervised probation. Ray served his four months in prison and was then
released on supervised probation.
1
240 P.3d 846, 851 (Alaska App. 2010).
2
The legislature first enacted AS 12.55.090(f) in 2012. Ch. 70, § 10, SLA
2012. The legislature later amended the statute in 2016, significantly modifying its
operation. Ch. 36, § 80, SLA 2016. Our decision interprets the version of
AS 12.55.090(f) in effect from 2012-2016, which was applied to the petitioner in this
case. We express no opinion on the interpretation of the statute as currently written.
3
See Alaska R. Crim. P. 11(e)(1)-(2) (establishing procedure for presenting
plea agreement for court approval and stating that after approval court “shall impose
sentence in accordance with the terms of that agreement”).
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Several months later, the State filed a petition to revoke probation, alleging
that Ray had violated conditions of probation. At the probation adjudication hearing,
Ray admitted that he had violated two conditions, and the superior court found that he
had violated two others. At the disposition hearing, Ray announced that he wanted to
reject further probation. Neither the sentencing judge nor the prosecutor had been aware
of Ray’s intentions before this time, but both acknowledged his desire to reject probation.
However, in addition to sentencing him to serve 16 months (which was all but 90 days
of his remaining suspended jail time), the superior court placed Ray on unsupervised
probation for five years. The only condition of this unsupervised probation was that Ray
obey the law. The superior court’s apparent purpose in keeping Ray on unsupervised
probation was to allow the court to impose a more severe sentence if Ray committed
another felony before his five years of probation expired.4
B. Court Of Appeals Proceedings
Ray appealed the sentence on two grounds. First, Ray contended that the
superior court erred by ruling against him on the two contested violations of probation.5
The court of appeals disagreed, concluding that the evidence was sufficient to support
the superior court’s findings that Ray violated the two probation conditions.6
Second, Ray argued that the superior court erred by not honoring his right
to reject further probation. Ray relied on the court of appeals’ decision in State v. Henry,
which held that a defendant whose Rule 11 plea agreement provides for a specific period
4
Given the arguments by the parties and the question certified to us by the
court of appeals, we do not address the distinct question of whether it was proper for the
superior court to impose more probation time on Ray than the amount provided in his
Rule 11 agreement.
5
Ray v. State, 452 P.3d 688, 690 (Alaska App. 2019).
6
Id.
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of probation has the right, when being sentenced for a subsequent probation violation,
to elect to serve only active imprisonment rather than any further probation.7
In response, the State argued that the legislature had abrogated the Henry
decision by enacting AS 12.55.090(f), which limits a judge’s authority to reduce a period
of probation provided for in a Rule 11 agreement:
Unless the defendant and prosecuting authority agree at the
probation revocation proceeding or other proceeding, the
court may not reduce the specific period of probation, or the
specific term of suspended incarceration except by the
amount of incarceration imposed for a probation violation, if
(1) the sentence was imposed in accordance with a
plea agreement under Rule 11, Alaska Rules of
Criminal Procedure; and
(2) the agreement required a specific period of
probation or a specific term of suspended
incarceration.[8]
The State argued that this statute, by precluding a judge from “reduc[ing] the specific
period of probation” set forth in a Rule 11 agreement unless the prosecutor agrees,
eliminated the right of defendants like Ray to reject a previously-agreed-upon period of
probation.9
7
Id.; Henry v. State, 240 P.3d 846, 851 (Alaska App. 2010).
8
Ch. 70, § 10, SLA 2012. The legislature also amended AS 12.55.090(b)
to reflect the addition of subsection (f): “Except as otherwise provided in (f) of this
section, the court may revoke or modify any condition of probation, or may change the
period of probation.” In 2016 the legislature modified subsection (f) by clarifying that
an “other proceeding” must be “related to a probation violation,” and adding two other
circumstances under which courts may reduce the period of probation or term of
suspended incarceration. Ch. 36, § 80, SLA 2016.
9
Ray, 452 P.3d at 693.
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The court of appeals was unable to resolve this dispute. The three judges
on the court of appeals wrote separately, each proposing a different interpretation of
AS 12.55.090(f).10
1. Judge Mannheimer’s separate opinion
Judge Mannheimer concluded that AS 12.55.090(f) does not abolish a
defendant’s right to reject probation provided for in a plea agreement.11 He reasoned that
had the legislature intended to abolish this right, the statute would have expressly said
so.12 Judge Mannheimer instead concluded the statute prohibits a court only from
unilaterally reducing the defendant’s period of probation unless both the prosecuting
authority and defendant agree.13 In his view, the legislative history demonstrated an
intent “to restrict judicial sentencing discretion in probation revocation hearings, so that
judges could not unilaterally reduce a defendant’s bargained-for period of probation
when the judge grew tired of dealing with the defendant.”14 Judge Mannheimer
concluded that the legislature did not intend to repeal the right to reject probation, but
instead intended only to limit the discretion of judges who do not want to “deal[]” with
troublesome probationers.15
Judge Mannheimer also concluded that, under AS 12.55.090(f), defendants
who reject further probation are not automatically sentenced to the remainder of their
10
Id. at 695.
11
Id. at 698-99 (Mannheimer, J., writing separately).
12
Id. at 697.
13
Id. at 696-97.
14
Id. (emphasis in original).
15
Id. at 697.
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suspended term of imprisonment.16 In his view, because a defendant does not waive any
rights that were not specifically and explicitly waived in the plea bargain, a defendant
who rejects probation must be re-sentenced according to the criteria described in State
v. Chaney.17
2. Judge Suddock’s separate opinion
Judge Suddock agreed with Judge Mannheimer that AS 12.55.090(f) did
not abolish a defendant’s right to reject probation previously agreed to in a Rule 11 plea
agreement.18 But Judge Suddock concluded that AS 12.55.090(f) did affect the
consequences of this right: If a defendant rejects further probation, the judge is required
to impose the balance of suspended time and has no discretion to calculate a term of
imprisonment according to the Chaney criteria.19
Like Judge Mannheimer, Judge Suddock relied heavily on legislative
history. But what Judge Suddock found prominent was an intent by the legislature to
overrule the Henry decision.20 He observed that testimony from the witnesses supporting
the legislation emphasized that “a deal is a deal”: Once the defendant and prosecuting
authority execute a plea agreement, the agreement’s terms cannot be altered by the judge
16
Id. at 698-99.
17
Id. at 697-98. In State v. Chaney we announced constitutionally derived
criteria a court must consider when imposing a sentence of imprisonment. 477 P.2d 441,
443-44 (Alaska 1970). These criteria are codified at AS 12.55.005.
18
Id. at 699 (Suddock, J., writing separately).
19
Id.
20
Id. at 699-701.
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after sentencing.21 He therefore concluded that, if the defendant rejects probation, the
sentencing court must impose all the remaining suspended time of imprisonment without
regard to the Chaney sentencing criteria.22
3. Judge Allard’s separate opinion
Judge Allard concluded that AS 12.55.090(f) eliminated a defendant’s right
to reject further probation if the length of the defendant’s probation was a specified
component of the defendant’s plea bargain.23 Judge Allard began with the language of
the statute.24 She observed that the statute’s terms give a judge no authority to reduce a
period of probation specified in a Rule 11 agreement unless the parties agree to that
reduction.25 She reasoned that this language necessarily implicates a defendant’s right
to reject probation because, as a practical matter, “a defendant cannot formally reject
probation and be resentenced to a flat-time sentence unless the court is authorized to
conduct that resentencing.”26
Judge Allard turned next to the legislative history. She concluded that
“[a]lthough not as clear as it could be, the legislative history does make clear that
AS 12.55.090(f) was introduced in response to [the] decision in State v. Henry.”27 She
highlighted testimony that “the State opposed any reduction in the defendant’s
21
Id.
22
Id. at 701.
23
Id. at 703 (Allard, J., writing separately).
24
Id. at 702.
25
Id.
26
Id.
27
Id. (footnote omitted).
-7- 7605
probationary term because it was a bargained-for term of the plea agreement” — which
was the State’s position in Henry.28 Judge Allard also highlighted testimony that “a deal
is a deal” and that it was “not fair for a trial court to terminate probation when it is part
of a bargained-for exchange because ‘both sides have negotiated in good faith over what
is an appropriate sentence.’ ”29
Judge Allard concluded, based on her analysis of the text and legislative
history, “that AS 12.55.090(f) was enacted to prevent a defendant from unilaterally
rejecting probation if the period of probation was part of a bargained-for term of the
defendant’s plea agreement.”30
C. Certification To This Court
With no majority, the court of appeals certified the question of how to
interpret AS 12.55.090(f) to this court.31
III. DISCUSSION
A. Prior To The Enactment Of AS 12.55.090(f), Defendants Had The
Right To Reject Probation Provided For In A Rule 11 Plea Agreement.
Probation is a form of punishment typically imposed as an alternative to a
28
Id. at 703 (citing Minutes, H. Judiciary Comm. Hearing on S.B. 210, 27th
Leg., 2d Sess. 1:36-40 (Apr. 11, 2012) (testimony of Anne Carpeneti, Assistant Att’y
Gen.); see also State v. Henry, 240 P.3d 846, 849 (Alaska App. 2010).
29
Id. (quoting Minutes, H. Judiciary Comm. Hearing on S.B. 210, 27th Leg.,
2d Sess. 2:21-24 (Apr. 12, 2012) (testimony of Richard Svobodny, Deputy Att’y Gen.).
30
Id.
31
Id. at 695; see also AS 22.05.015(b) (“The supreme court may take
jurisdiction of a case pending before the court of appeals if the court of appeals certifies
to the supreme court that the case . . . involves an issue of substantial public interest that
should be determined by the supreme court.”).
-8- 7605
sentence of imprisonment or a fine.32 In Alaska, a court’s power to suspend a sentence
of imprisonment and offer probation instead is entirely statutory.33 Our statutes give the
sentencing court significant discretion to determine the appropriate period and conditions
of probation.34
Because probation is an alternative to the statutorily defined punishment for
the crime, we long ago recognized in Brown v. State that the defendant may refuse
probation if the defendant “deems the terms too onerous.”35 Since Brown, the court of
32
See Chinuhuk v. State, 472 P.3d 511, 515 (Alaska 2020) (“Alaska law
usually permits a court to impose probation only in lieu of some other punishment.”);
AS 12.55.080 (“Upon entering a judgment of conviction of a crime, or at any time within
60 days from the date of entry of that judgment of conviction, a court, when satisfied that
the ends of justice and the best interest of the public as well as the defendant will be
served thereby, may suspend the imposition or execution or balance of the sentence or
a portion thereof, and place the defendant on probation for a period and upon the terms
and conditions as the court considers best.”); AS 12.55.090(a) (“Probation may be
granted whether the offense under AS 11 or AS 16 or the crime is punishable by fine or
imprisonment or both.”); accord Probation, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining “probation” as a “court-imposed criminal sentence that, subject to stated
conditions, releases a convicted person into the community instead of sending the
criminal to jail or prison, [usually] on condition of routinely checking in with a probation
officer over a specific period of time”).
33
See Pete v. State, 379 P.2d 625, 626 (Alaska 1963) (“The power to suspend
sentences is not inherent in the judicial branch of government; the power exists only
when conferred upon the judiciary by the legislature.”).
34
See AS 12.55.080 (“Upon entering a judgment of conviction of a crime . . .
a court . . . may suspend the imposition or execution or balance of the sentence or a
portion thereof, and place the defendant on probation for a period and upon the terms
and conditions as the court considers best.” (emphasis added)).
35
559 P.2d 107, 111 n.13 (Alaska 1977) (“The statutes concerning probation
contain no provision as to its acceptance or rejection. However, it is settled that a
defendant has the right to refuse probation, for its conditions may appear to defendant
(continued...)
-9- 7605
appeals has expanded on this point, noting that probation is “an act of grace and
clemency” that “was never intended to be a device for making a punishment more severe
than that prescribed by the legislature.”36 “[P]robation is a contract, and because this
contract allows a judge to control a defendant’s life in ways that the defendant may deem
more burdensome than normal criminal penalties, a defendant is free to refuse probation
and to insist on a normal sentence.”37 Put simply, it is a defendant’s “choice whether to
accept a partially suspended sentence and the accompanying period of probation, or to
insist on a sentence consisting wholly of time to serve.”38
In State v. Henry the court of appeals again affirmed the right to reject
probation, even if the defendant had previously entered into a Rule 11 plea agreement
providing for a specific period of probation.39 Henry was a consolidated appeal
involving two defendants, each of whom had executed a Rule 11 plea agreement
providing for a specific period of probation.40 In each case the defendant served the
35
(...continued)
more onerous than the sentence which might be imposed.” (quoting with approval In re
Osslo, 334 P.2d 1, 8 (Cal. 1958))).
36
State v. Staael, 807 P.2d 513, 517 (Alaska App. 1991) (first quoting People
v. Franks, 211 P.2d 350, 351 (Cal. App. 1949), then quoting People v. Billingsley, 139
P.2d 362, 364 (Cal. App. 1943)); see also Sweezey v. State, 167 P.3d 79, 80-81 (Alaska
App. 2007) (refusing to overturn Brown); Hurd v. State, 107 P.3d 314, 333 (Alaska App.
2005) (affirming right to reject probation).
37
State v. Auliye, 57 P.3d 711, 717 (Alaska App. 2002).
38
Hurd, 107 P.3d at 333.
39
240 P.3d 846, 851 (Alaska App. 2010).
40
Id. at 847.
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active term of imprisonment and was released on probation.41 After violating probation
and being remanded to custody on a petition to revoke probation, the defendants each
asked the sentencing judge to impose active imprisonment for the remainder of their
suspended sentence in lieu of any further probation.42 In each case the sentencing judge
granted the request and applied the Chaney sentencing criteria to sentence the defendant
to a term of active imprisonment that was less than the remaining suspended time
provided for in the defendant’s plea agreement, with no probation to follow.43
The State appealed these decisions, contending that the sentencing courts
had no authority to reduce the period of probation provided for in the defendants’ plea
agreements without the State’s consent.44 It argued that because the period of probation
is a material element of a plea bargain, “the defendant necessarily relinquishes the right
to later terminate their probation.”45
The court of appeals rejected the State’s argument. It reasoned that parties
to a contract “retain their legal rights relating to the transaction covered by the contract
unless either (1) the contract specifically states that a party is relinquishing a legal right
41
Id.
42
Id.
43
Id.
44
Id. at 848.
45
Id. at 849. Judge Allard accurately noted that the court of appeals’ decision
in Henry mistakenly characterized the State’s position as allowing a defendant to reject
probation but requiring either imposition of the remaining suspended time or rescission
of the original plea agreement. Ray v. State, 452 P.3d 688, 703 n.8 (Alaska App. 2019)
(Allard, J., writing separately). “[T]he State’s primary position in Henry was that a
defendant who agreed to probation as a bargained-for term of their plea agreement
should not be allowed to unilaterally reject probation.” Id. The State’s position in Henry
is consistent with its interpretation of AS 12.55.090(f) in this case.
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as part of the bargain or (2) the terms of the contract are clearly premised on the
relinquishment of this right.”46 The court of appeals therefore concluded that a
defendant’s decision to accept a Rule 11 plea bargain does “not constitute a
relinquishment or waiver of the normal rights accompanying a sentence of probation and
suspended imprisonment.”47 Among the rights not waived are a defendant’s “right to
reject further probation at some future time and the right to demand (in that event) that
the superior court assess their sentence of imprisonment based on the Chaney criteria,
rather than automatically imposing all of their remaining suspended jail time.”48 For that
reason, the court of appeals affirmed the lower court orders granting the defendants’
requests to reject further probation and be sentenced to a term of active imprisonment
only.49
B. According To The Plain Text Of AS 12.55.090(f), A Judge May Not
Effectuate A Defendant’s Right To Reject Probation Provided For In
A Rule 11 Plea Deal.
When probation has been imposed, the sentencing court generally “may
revoke or modify any condition of probation or may change the period of probation.”50
The court of appeals ruled in Henry that the sentencing court retains this authority even
46
Henry, 240 P.3d at 849 (citing Wright v. Universal Mar. Serv. Corp., 525
U.S. 70, 80 (1998); Metro. Edison Co. v. Nat’l Labor Relations Bd., 460 U.S. 693, 708
(1983)).
47
Id. at 851.
48
Id.
49
Id.
50
Former AS 12.55.090(b) (2012).
-12- 7605
if the terms and conditions of probation are spelled out in a Rule 11 plea agreement.51
But after Henry, the legislature amended Alaska’s probation statutes to limit judicial
authority in that context:
Unless the defendant and the prosecuting authority agree at
the probation revocation proceeding or other proceeding, the
court may not reduce the specific period of probation, or the
specific term of suspended incarceration except by the
amount of incarceration imposed for a probation violation, if
(1) the sentence was imposed in accordance with a
plea agreement under Rule 11, Alaska Rules of
Criminal Procedure; and
(2) the agreement required a specific period of
probation or a specific term of suspended
incarceration.[52]
We must decide whether this new statute precludes a defendant from exercising the right
to reject probation provided for in a Rule 11 agreement. The interpretation of a statute
is a question of law that we review de novo.53
“The goal of statutory construction is to give effect to the legislature’s
intent, with due regard for the meaning the statutory language conveys to others.”54 “We
interpret a statute ‘according to reason, practicality, and common sense, considering the
51
Henry, 240 P.3d at 851.
52
Ch. 70, § 10, SLA 2012.
53
Se. Alaska Conservation Council, Inc. v. Dep’t of Nat. Res., 470 P.3d 129,
136 (Alaska 2020).
54
City of Valdez v. State, 372 P.3d 240, 254 (Alaska 2016) (quoting City of
Fairbanks v. Amoco Chem. Co., 952 P.2d 1173, 1178 (Alaska 1998)).
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meaning of the statute’s language, its legislative history, and its purpose.’ ”55 We use a
sliding scale approach to statutory interpretation: “[T]he clearer the statutory language,
the more convincing any contrary legislative history must be to overcome the statute’s
plain meaning.”56 “[W]here a statute’s meaning appears plain and unambiguous . . . the
party asserting a different meaning bears a correspondingly heavy burden of
demonstrating contrary legislative intent.”57 “[I]f legislative history is [only] ‘somewhat
contrary’ to the plain meaning of a statute, plain meaning still controls.”58
The language of AS 12.55.090(f) plainly precludes a court from reducing
periods of probation imposed pursuant to a Rule 11 agreement without the consent of
both parties. As Judge Allard observed, a defendant cannot as a practical matter exercise
the right to reject probation already agreed to if the court may not reduce the period of
probation.59 Because the text of AS 12.55.090(f) makes it impossible for a defendant to
55
Vandenberg v. State, Dep’t of Health & Soc. Servs., 371 P.3d 602, 606
(Alaska 2016) (quoting Louie v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska
2014)).
56
Se. Alaska Conservation Council, 470 P.3d at 141 (citing City of Valdez,
372 P.3d at 248).
57
Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 193 (Alaska
2007) (omission in original) (quoting State v. Alaska State Emps. Ass’n/AFSCME Local
52, 923 P.2d 18, 23 (Alaska 1996)).
58
Hendricks-Pearce v. State, Dep’t of Corr., 323 P.3d 30, 35-36 (Alaska
2014) (quoting Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 387 (Alaska
2013)).
59
Ray v. State, 452 P.3d 688, 702 (Alaska App. 2019) (Allard, J., writing
separately); see also Harris v. State, 980 P.2d 482, 484-85 (Alaska App. 1999) (holding
that a probationer has a duty to continue abiding by his probation conditions — even
after a petition to revoke probation has been filed — until the probation has been revoked
(continued...)
-14- 7605
exercise a right to reject probation, the text strongly suggests the legislature intended to
abolish this right in these circumstances.
Ray argues that if the legislature meant to abolish the right to reject
probation in these circumstances, then it would have said so in the statute’s text.
Because AS 12.55.090(f) does not mention the right to reject probation, Ray contends
that it was meant to curtail only the trial court’s authority to unilaterally change the terms
of a defendant’s previously-agreed-upon sentence.
Ray’s approach to statutory interpretation is akin to the presumption against
implied repeal, which we have rejected. The presumption against implied repeal is a rule
of statutory construction providing that “[w]here a newly enacted statute is silent on a
previous existing one, the indication is that the legislature did not intend to repeal the
existing one.”60 We have declined to recognize a presumption against implied repeal of
statutes because it “is artificial and potentially at odds with the primacy of legislative
intent.”61 The legislature is not required to expressly state that it is repealing or
modifying a statute in order to do so; instead, we apply normal tools of statutory
construction to discern the legislature’s intent.62
For the same reasons we reject the presumption against implied repeal, we
59
(...continued)
by the court).
60
1A NORMAN J. SINGER & J. D. SHAMBIE SINGER, STATUTES AND
STATUTORY CONSTRUCTION § 23:10 (7th ed. 2020). The rule is based on the theory “that
the legislature is presumed to envision the whole body of the law when it enacts new
legislation,” so “drafters should expressly designate offending provision rather than leave
a repeal to arise by implication from a later enactment.” Id.
61
Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998).
62
See id. at 516-17.
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cannot presume that the legislature did not intend the straightforward effect of the
language it added to the probation statutes simply because the legislature did not
expressly mention the right to reject probation. The right to reject probation, although
not expressly mentioned in the text of the probation statutes, is derived from an
interpretation of their purpose and operation.63 With AS 12.55.090(f), the legislature
amended the statute in a way that makes it impossible for a defendant to exercise that
right if the defendant had previously agreed to a period of probation in a Rule 11
agreement. The fact that the legislature did not expressly mention the right to reject
probation does not give us license to diminish the effect of the words it did use.64
63
See Brown v. State, 559 P.3d 107, 111 n.13 (Alaska 1997) (“We . . . are of
the view that under Alaska’s statutes governing probation the defendant can refuse
probation if he deems the terms too onerous.”); Pete v. State, 379 P.2d 625, 626 (Alaska
1963) (noting that court’s power to impose probation in lieu of imprisonment is a power
granted to the legislature); State v. Staael, 807 P.2d 513, 517 (Alaska App. 1991)
(relying on discretionary language in probation statutes to conclude that probation is “an
act of grace and clemency” that “was never intended to be a device for making a
punishment more severe than that prescribed by the legislature”).
64
The court of appeals has previously stated that “statutes are construed so
as to preserve the pre-existing common law unless the legislature has clearly indicated
its purpose to change that law,” citing the rule that statutes in derogation of the common
law are to be narrowly construed. See, e.g., State v. ABC Towing, 954 P.2d 575, 579
(Alaska App. 1998); Roeckl v. F.D.I.C., 885 P.2d 1067, 1074 (Alaska 1994) (“Courts
construing these statutes have generally recognized that registration requirements are in
derogation of the common law and therefore must be construed narrowly.”). It seems
doubtful that this interpretive principle applies to the right to reject probation, which
stems from our interpretation of Alaska’s probation statutes and is not a common law
rule in the traditional sense. See Common Law, BLACK’S LAW DICTIONARY (11th ed.
2019) (defining “common law” as “[t]he body of law derived from judicial decisions,
rather than from statutes or constitutions”). Yet we need not decide that question. Even
if the right to reject probation were a common law right, modification of that right would
require only a clear change in the law, not an express statement of intent to change the
(continued...)
-16- 7605
Ray’s interpretation of AS 12.55.090(f) also violates a cardinal rule of
statutory construction. He, like Judge Mannheimer, maintains that the statute does not
bar defendants from exercising the right to reject probation but limits only “judges who
unilaterally decide to terminate a recalcitrant defendant’s probation because they are tired
of dealing with the defendant.”65 But that limitation does not appear in the statute’s text.
The text does not distinguish between reducing a period of probation on the court’s own
motion and reducing probation on the defendant’s motion. To limit the statute to the
former category, the legislature would have needed to add the term “unilaterally,” “sua
sponte,” or similar language: For example, “[u]nless the defendant and the prosecuting
authority agree . . ., the court may not unilaterally reduce the specific period of probation
. . . .” The legislature did not use this language, and “we are not vested with the authority
to add missing terms” to a statute.66
64
(...continued)
law. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 318 (West 2012) (“[S]tatutes will not be interpreted as changing the
common law unless they effect the change with clarity. . . . [T]he alteration of prior law
must be clear — but it need not be express . . . .”). As we explain here, AS 12.55.090(f)
effects a clear change in the law.
65
Ray v. State, 452 P.2d 688, 696 (Alaska App. 2019) (Mannheimer, J.,
writing separately) (emphasis omitted).
66
M.M. ex rel. Kirkland v. State, Dep’t of Admin., Off. of Pub. Advocacy, 462
P.3d 539, 547 n.37 (Alaska 2020) (quoting Mun. of Anchorage v. Suzuki, 41 P.3d 147,
151 n.12 (Alaska 2002)).
The dissent suggests that we have slanted the rules of statutory
interpretation against criminal defendants by requiring the legislature to use specificity
when limiting judges’ discretion but not when limiting defendants’ rights. Not so. We
apply the tools of statutory interpretation neutrally. In this case we presume the
legislature intended the clear effect of the language it used, which plainly does not allow
(continued...)
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Ray argues that if the legislature wanted to make probation mandatory, it
would have enacted an entirely different type of mandatory probation, as it did for sex
offenses and underage drinking.67 These types of probation were meant only for specific
crimes and imposed special conditions related to the distinct nature of those crimes.68
It was therefore logical for the legislature to create a different type of probation. But
nothing in our case law suggests that creating a new type of probation is the only way to
bind a defendant to the probation provided for in a Rule 11 plea agreement. Targeting
a sentencing court’s authority to alter the terms of a Rule 11 plea agreement is a logical
and precise way for the legislature to negate a defendant’s right to refuse previously-
agreed-upon probation.
The dissent acknowledges that Ray’s attempt to distinguish between judges
terminating probation sua sponte and judges terminating probation at the defendant’s
66
(...continued)
a judge “to reduce the specific period of probation” and does not contain language that
distinguishes reducing the period of probation sua sponte from reducing it at the
defendant’s request.
67
See former AS 12.55.125(o) (2006) (providing, before being repealed in
2016, for mandatory probation period for specific sex offenses); former AS 04.16.050(e)
(2002) (providing, before being amended in 2007, that if judge orders probation the
probationary period must be “for one year or until the person is 21 years of age,
whichever is later”).
68
See, e.g., Chinuhuk v. State, 472 P.3d 511, 519 (Alaska 2020) (recognizing
that trial court has no discretion to reduce sex offender’s mandatory period of probation
after leaving prison below statutory minimums); State v. Auliye, 57 P.3d 711, 713
(Alaska App. 2002) (recognizing that legislature created alternative probation, which
cannot be rejected, for minors convicted of possessing or consuming alcohol); see also
Staael, 807 P.2d at 516-17 (recognizing that individuals released on mandatory parole
do not have statutory right to refuse parole, whereas individuals released on probation
have statutory right to refuse probation).
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request is unpersuasive. Instead the dissent concludes, as did Judge Suddock, that
AS 12.55.090(f) permits a judge to grant a defendant’s request not to spend further time
on probation so long as the judge imposes the balance of the defendant’s term of active
imprisonment. In other words, the judge may honor a defendant’s right to reject
probation but may not impose the term of active imprisonment that the judge believes
appropriate in light of the constitutionally derived Chaney factors. Yet the text does not
purport to limit a sentencing judge’s discretion in this way. The statute says the judge
“may not reduce the specific period of probation”; it does not say that the judge must
impose the full term of active imprisonment.
When the text of AS 12.55.090(f) is considered without adding any words
or applying inappropriate presumptions, it makes it impossible for a defendant to reject
probation previously agreed to in a Rule 11 plea bargain. Ray “bears [the] . . . heavy
burden of demonstrating contrary legislative intent” to prove that the legislature did not
intend this result.69
C. The Legislative History Is Susceptible To Different Interpretations
And Therefore Does Not Refute The Plain Meaning Of The Statute.
The legislative history, as Ray acknowledges, is somewhat ambiguous.
Neither legislators nor witnesses referred specifically to the “right” to reject probation,
and much of the testimony focused on judges’ actions, rather than defendants’. Yet it is
significant that the testimony by the legislation’s proponents and the bill review materials
evince an intent to overrule Henry. If that was the legislature’s intent, it seems doubtful
that the legislature intended to address only instances in which a judge “unilaterally”
reduces a defendant’s period of probation, but not instances in which a judge reduces
69
Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 193 (Alaska
2007) (quoting State v. Alaska State Emps. Ass’n/AFSCME Local 52, 923 P.2d 18, 23
(Alaska 1996)).
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probation at the defendant’s urging — the situation actually presented in Henry.70 The
legislative history therefore can be read to support the plain meaning of
AS 12.55.090(f)’s text and at the very least does not clearly refute it.
1. Witness testimony
All court of appeals judges relied on testimony to the legislature about the
proposed statute — notably from Deputy Attorney General Richard Svobodny and
Assistant Attorney General Anne Carpeneti, two representatives sent by the Department
of Law to explain the meaning of the proposed statute. The three judges disagreed on
what this testimony reveals about legislative intent.
Assistant Attorney General Anne Carpeneti and Deputy Director of the
Public Defender Agency Douglas Moody testified before the Senate Judiciary
Committee on February 10, 2012 to discuss S.B. 186, a bill amending various aspects of
the code of criminal procedure.71 During this hearing Carpeneti spoke at length about
sections 5 and 6 of S.B. 186, which had the same language as AS 12.55.090(f).72
Carpeneti testified that Sections 5 and 6 “deal[] with a decision made by the [c]ourt of
[a]ppeals in Henry v. State,” which was “a case that [the Department of Law thought]
70
240 P.3d 846, 847 (Alaska 2010) (“[D]efendant[s] told the sentencing judge
that they no longer wished to be on probation: they asked the judge to terminate the
probation and simply sentence them to an active (i.e., unsuspended) term of
imprisonment.”).
71
Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Feb. 10, 2012).
72
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 1:51:48-1:57:48,
Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10,
2012).
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was mistakenly decided by that court.”73 With regard to Henry, Carpeneti testified:
[The Department of Law] agree[s] . . . with this part of
[Henry] that the court should look to the sentencing criteria
in Chaney to determine how much time should then be
imposed for the probation violation but we don’t agree with
the decision of the court to unilaterally end probation and
reduce the period of suspended time.[74]
Senator Joe Paskvan asked Carpeneti why the situation in Henry was even
a problem.75 Carpeneti responded:
[In Henry], the sentence was three years probation and 19
months of suspended jail time. He said he didn’t want to be
on probation and he had agreed to it. You know, he had said
when he entered the plea agreement that he would serve three
years of probation and he got a substantial benefit. Three
serious charges were dismissed in exchange for his
agreement to serve three years probation. He didn’t like
probation and so he . . . asked the court to eliminate probation
and send him back to jail. Well, you know, if you had sent
him back to jail for 19 months, as the original bargain had
been, . . . that would have been fine because at that point, he
had served everything that he had agreed to and there wasn’t
. . . much point after that for him to be on probation but the
judge not only reduced the time that he had agreed to but also
suspended any probation after that. So, . . . I suppose if the
judge had said I’m going to send you to jail for 15 months,
you’ll still have four months and . . . whatever’s left of
probation, that would have been fine but the judge not only
reduced the amount of time that was suspended and to serve
73
Id.
74
Id.
75
Comments of Sen. Joe Paskvan at 2:04:17-2:12:03, Hearing on S.B. 186
Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
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but unilaterally eliminated the rest of the probation.[76]
Deputy Director of the Public Defender Agency Douglas Moody testified
in opposition to the law. He observed that the right to reject probation was not newly
created in Henry.77 He also remarked that
there are sort of multitudes of reasons why guys don’t want
to finish out on probation, the least common of which is I just
want to drink all the time. Far more common is I want to
move to a different part of the state because I can find
work. . . . [S]ome guys just don’t want to be on probation.
They don’t want to be stuck in Anchorage. They want to go
back to a village or something like that. So you have all these
other reasons why somebody might . . . not want to be on
probation anymore but . . . the way the law is now and has
been for a long time is that the judge just comes in and
determines what is a fair and just sentence given the entire
scope of conduct and, frankly, usually that means the guy
gets everything. . . .
And now you’ve . . . potentially got a problem here and
stripping the court . . . of that discretion to review — (cut off
by Senator Hollis French)[78]
Senator Hollis French clarified what he thought the amendment was doing:
[T]he judge is always free to say you know what, in the
totality of circumstances, I think it’s worth X many days of
the suspended time but what he can’t do is say I’ve decided
that the suspended time imposed in the first place was too
76
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 2:05:15-2:06:39,
Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10,
2012).
77
Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:36:45
2:50:20, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Feb. 10, 2012).
78
Id.
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much and eliminate it.[79]
Moody confirmed that this was exactly what he thought the provision was saying.80
Moody’s explanation of his agency’s opposition to the bill — the legitimate reasons why
defendants sometimes “don’t want to finish out on probation” — is significant because
that is the interest protected by the right to reject probation. The agency’s opposition
suggests a belief that the bill was targeted at eliminating that right, not targeted solely at
judges terminating probation without regard to the defendant’s wishes.
Carpeneti testified again before the House Judiciary Committee on April 11,
2012, this time about S.B. 210, the successor to S.B. 186 that eventually became law.81
Sections 9 and 10 of S.B. 210 contained the same language as sections 5 and 6 of S.B.
186. Carpeneti again discussed Henry and the Department of Law’s opposition to the
court of appeals’ ruling in that case:
The Henry decision . . . allowed the court to reduce the period
of probation in that case and these provisions . . . would
disallow a reduction in those unless both parties agreed to
that change and the reason is that when the state and the
defense enter into plea negotiations, both sides give up some
things and gain some things and the state gives up often
additional charges that could be brought and various other
79
Comments of Sen. Hollis French., Chair, Sen. Judiciary Comm. at 2:46:40
2:47:01, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Feb. 10, 2012).
80
Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:36:45
2:50:20, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Feb. 10, 2012).
81
Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess.
(Apr. 11, 2012); compare also Sen. Judiciary Comm., Sectional Analysis of Proposed
S.B. 186, 27th Leg., 2d Sess. (2012), with Sen. Judiciary Comm., Sectional Analysis of
Proposed S.B. 210, 27th Leg., 2d Sess. (2012).
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things in exchange for a particular agreement. . . . [The
Department of Law] opposed [the outcome in Henry]
because, first of all, [Henry] had agreed to that amount of
time and, second . . . we had reasons for requiring a period of
probation, for the protection of the public.[82]
In response to questions from legislators, Carpeneti clarified that she
believed there had been a bargain struck between the State and the defendant, which the
court approved. She stated:
[The Department of Law’s] position is that, yes, . . . the court
should look at the Chaney criteria to decide what effect . . .
this violation of probation should have but it shouldn’t reduce
the period of probation that the defendant has bargained on
and the [S]tate has bargained on and has agreed to.
....
[T]he parties bargained on this period of probation. The
court accepted . . . that bargain before sentencing the
defendant and the defendant has violated the condition of
probation. We do agree that the court should apply the
Chaney criteria in evaluating the consequences of the
probation violation and whether or not any additional time
should be imposed on the defendant or not but in terms of the
agreement that was originally made, we believe
that . . . would be upheld.
....
[The State] ha[s] dropped charges which [it is] no longer in
a position to reinstate. The defendant has violated the
conditions of his probation. The court, under the
circumstances, should not be able to reduce the terms that
were already agreed upon by the parties for what is a
82
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 1:37:13-1:47:50,
Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 11, 2012).
-24- 7605
violation of probation.[83]
Deputy Attorney General Richard Svobodny testified on S.B. 210 the
following day, remarking that the amendment was “a deal is a deal section” and criticized
Henry for undermining the integrity of the Rule 11 agreement and a victim’s ability to
obtain restitution:
[W]hat the decisions in the last year had said is, basically, the
judge can say okay, . . . you went out and you violated the
law, that was a violation of your conditions of probation but
I’m not going to do anything and I’m going to just say that
what you’ve done now is it. And so it seems to me it violates
kind of all those principles, at least the prosecutors,
hopefully, have about fairness, justice, and protecting the
community . . . .[84]
Svobodny also emphasized that victims of crime have a constitutional right to restitution
and that the period of probation in a plea agreement is often negotiated with an eye to
obtaining that restitution.85 He observed that if a judge decides to eliminate the period
of probation, the defendant’s incentive to pay restitution is gone and the victim’s only
recourse is a civil suit.86
Snippets of this testimony can be read to support Judge Mannheimer’s,
Judge Suddock’s, or Judge Allard’s interpretation of the statute, so the testimony is
ultimately not a decisive guide to legislative intent. As Ray points out, the testimony by
the Department of Law representatives does not explicitly mention the right to reject
83
Id.
84
Testimony of Richard Svobodny, Deputy Att’y Gen. at 2:20:00-2:37:10,
Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 12, 2012).
85
Id.
86
Id.
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probation at all. And Carpeneti at one point described a judge “unilaterally eliminat[ing]
the rest of the probation.”87 Judge Mannheimer emphasized this point, noting much of
the discussion centered around the Department of Law’s frustrations with “the problem
of judges” changing the terms of Rule 11 plea agreements.88 Svobodny’s testimony in
particular focused on a perceived fecklessness of judges who acknowledge a probation
violation but decide “I’m not going to do anything and I’m going to just say that what
you’ve done now is it.”89 This focus can be read to support Ray’s (and Judge
Mannheimer’s) interpretation of AS 12.55.090(f).
But the focus on judges abrogating the terms of a Rule 11 agreement does
not rule out an intent to prevent judges from doing so at the behest of the defendant. As
Judge Suddock pointed out, “nothing in the testimony of the two State’s witnesses
suggested that, under the State’s proposed remedial legislation, a court could ever act
inconsistently with the original plea agreement.”90 He noted that Carpeneti’s “clear point
was that the original plea agreement should always remain inviolate whenever a judge
sentences a probationer, and accordingly that [the court of appeals’] holding to the
87
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 2:04:17-2:12:03,
Hearing on S.B. 186 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
88
Ray v. State, 452 P.3d 688, 698 (Alaska App. 2019) (Mannheimer, J.,
writing separately) (emphasis in original).
89
Testimony of Richard Svobodny, Deputy Att’y Gen. at 2:20:00-2:37:10,
Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 12, 2012).
90
Ray, 452 P.3d at 700 (Suddock, J., writing separately) (emphasis in
original); id. at 701 (“Surely the Department of Law did not trouble itself to draft
legislation to remedy a situation that rarely occurs — arbitrary judicial reductions in
probationers’ sentences — only to leave intact the holding of the case with which it
expressly disagreed, Henry.”).
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contrary in Henry should be overruled.”91 Carpeneti’s and Svobodny’s April 2012
testimony emphasizes that AS 12.55.090(f) was designed to ensure that “a deal was a
deal,” not just because it is a contract, but because the terms of the agreement — notably
the charges that were pleaded to and the corresponding sentence and probation terms —
were negotiated in the interest of justice and public protection. This logic applies with
equal force to a judge who sua sponte reduces a previously-agreed-upon period of
probation and a judge who reduces a previously-agreed-upon period of probation at the
defendant’s request.
And because Carpeneti’s and Svobodny’s testimony was centered around
Henry — which involved defendants who exercised their right to reject probation, not
judges who unilaterally eliminated the defendants’ probation — Judge Mannheimer’s
theory that the legislation was targeted only at wayward judges is suspect. It seems
doubtful that the Department of Law drafted legislation in response to a specific case but
did not intend to address the particular situation presented in that case. The focus on
overturning Henry suggests the legislature intended to prevent a defendant from
exercising the right to reject previously-agreed-upon probation.
Legislative testimony does not favor Judge Suddock’s interpretation either.
The dissent, in adopting Judge Suddock’s interpretation, focuses on testimony about the
importance of “the deal,” which was a theme of the legislation. And the dissent
highlights some of Carpeneti’s testimony, which can be read to support Judge Suddock’s
view that a defendant retains the right to reject further probation but must serve all
remaining suspended time.92 Carpeneti testified that, if a defendant had 19 months of
91
Id.
92
This interpretation would mean that a judge would be required to impose
a sentence of active imprisonment without regard to the Chaney criteria. Because the
(continued...)
-27- 7605
suspended time when he rejected probation, and the judge “had sent him back to jail for
19 months, as the original bargain had been, . . . that would have been fine because at
that point, he had served everything that he had agreed to and there wasn’t . . . much
point after that for him to be on probation.”93 Read in isolation, this testimony could
suggest that the Department of Law was not concerned with the right to reject probation,
so long as the remainder of the suspended sentence was served.
Yet the majority of Carpeneti’s testimony suggests that it is proper for a
judge sentencing for a probation violation to apply the Chaney criteria and decide that
a sentence of imprisonment equivalent to the full remaining suspended time is
appropriate; what is not proper is “eliminat[ing] the rest of the probation.”94 Carpeneti
indicated at least three times that, under this legislation, the judge sentencing for
92
(...continued)
Chaney criteria are derived from the constitution, State v. Chaney, 477 P.2d 441, 444
(Alaska 1970), Judge Suddock’s interpretation poses the interesting question of whether
a judge may disregard constitutional principles of criminal sentencing when sentencing
a defendant to a term of active imprisonment because the defendant had previously
agreed to that period of suspended imprisonment in a plea deal. For this reason, Ray
himself rejects Judge Suddock’s interpretation, describing it as an “unreasonable
compromise that is not supported by the language of the statute” and that creates an
“irreconcilable conflict” with the Alaska constitution. Because we conclude Judge
Suddock’s interpretation is not what the legislature intended, we need not address this
question. Although the dissent adopts Judge Suddock’s interpretation, it does not
address this constitutional issue.
93
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 2:04:17-2:12:03,
Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10,
2012)
94
Id.
-28- 7605
probation violations would have to apply the Chaney criteria.95 This view of the
legislation is consistent with the Department of Law’s own review of the legislation
emphasizing that a judge “must still apply the Chaney criteria, AS 12.55.005, in deciding
how much, if any, of the suspended period of incarceration should be imposed for the
probation violation.”96
Similarly, the dissent’s emphasis on the “deal” theme in the exchange
between Senator French and Deputy Director of the Public Defender Agency Moody
overlooks the fact that Moody confirmed French’s view that legislation left sentencing
judges “free to say . . . in the totality of circumstances, I think it’s worth X many days
of the suspended time.”97 This exchange indicates a belief that judges, when sentencing
for probation violations under this legislation, would continue to apply the Chaney
95
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 1:55:51-1:56:04,
Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10,
2012) (stating Department of Law “agree[s] . . . with this part of [Henry] that the court
should look to the sentencing criteria in Chaney to determine how much time should then
be imposed for the probation violation”); Testimony of Anne Carpeneti, Assistant Att’y
Gen. at 1:39:54-1:40:07, Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg.,
2d Sess. (Apr. 11, 2012) (describing Department’s position that “the court should look
at the Chaney criteria to decide what effect . . . this violation of probation should have
but it shouldn’t reduce the period of probation”); id. at 1:41:54-1:42:07 (“We do agree
that the court should apply the Chaney criteria in evaluating the consequences of the
probation violation and whether or not any additional time should be imposed on the
defendant or not . . . .”).
96
Letter on S.B. 210 from Michael C. Geraghty, Att’y Gen., to Governor
Sean Parnell (Apr. 23, 2012). We have previously ruled it is proper to rely on a bill
transmittal letter by the governor in analyzing legislative history. State v. Fyfe, 370 P.3d
1092, 1097-98 (Alaska 2016).
97
Exchange between Sen. Hollis French, Chair, Sen. Judiciary Comm., and
Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:46:47-2:47:44, Hearing on S.B. 186
Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
-29- 7605
criteria rather than simply impose the balance of suspended time. This consistently
voiced interpretation is most likely what the legislature intended.
2. Documentary evidence of legislative intent
In addition to testimony, we consider other sources of legislative history
that shed light on the intent behind AS 12.55.090(f). In February 2012, SB 186 was
introduced and referred to the Senate Judiciary Committee. The sponsor statement for
the bill from the Judiciary Committee provided that:
[S.B. 186] . . . clarifies that neither the prosecuting attorney
nor the defendant can, without mutual agreement, change the
terms of a Rule 11 plea agreement under the Rules of
Criminal Procedure after it has been imposed, and that the
court may not reduce a period of probation agreed to under a
Rule 11 agreement without the consent of the prosecution.
[S.B.] 186 makes important changes to ensure that Alaska’s
criminal procedures comply with Supreme Court decisions,
and that plea agreements made in good faith are upheld by
the courts. The bill is supported by the Alaska Department of
Law.[98]
Sections 5 and 6 of S.B. 186 contained the precise language that was
codified in AS 12.55.090(f). The purpose of this language, according to the Senate
Judiciary Committee’s sectional analysis of the bill, was:
to ensure that neither the prosecuting authority nor the
defendant can, without mutual agreement, change the terms
of a Rule 11, Alaska Rules of Criminal Procedure, agreement
after it has been imposed. If a defendant, as part of a plea
agreement under Rule 11, agrees to a particular period of
probation the court may not, without the consent of the
prosecution, reduce the period of probation. This has the
effect of overruling the decision in State v. Henry, 240 P.3d
98
Sen. Judiciary Comm., Sponsor Statement on S.B. 186, 27th Leg., 2d Sess.
(2012).
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846 (Alaska App. 2010). Judges, in sentencing a person who
has violated a condition of probation, must still apply the
Chaney criteria in deciding how much, if any, of the
suspended period of incarceration should be imposed.
However, the court may not reduce the period of probation or
the period of suspended time (less the time imposed for the
probation violation) without the agreement of the prosecuting
authority.[99]
This sectional analysis suggests an intent to eliminate the right to reject
probation in two ways. First, it confirms the intent to overrule Henry. And second, it
expressly states that a defendant cannot back out of agreed-upon probation: “[N]either
the prosecuting authority nor the defendant can, without mutual agreement, change the
terms of a Rule 11 . . . agreement after it has been imposed.” This analysis therefore
undercuts Judge Mannheimer’s interpretation. It also undercuts Judge Suddock’s
interpretation because it emphasizes that the judge must apply the Chaney factors in
deciding how much active imprisonment to impose for the probation violation.
S.B. 186 did not make it out of committee, but the same language used in
sections 5 and 6 of S.B. 186 was used in sections 9 and 10 of S.B. 210.100 The sectional
analysis of sections 9 and 10 was different than the sectional analysis of sections 5 and
6 of S.B. 186:
New Section 9 and 10 provides that when a defendant enters
into a plea agreement that calls for a specific term of
probation or a specific term of suspended incarceration, the
court, in a probation revocation proceeding, cannot
unilaterally terminate or reduce those terms, except by the
amount of incarceration time imposed for the offense that is
99
Sen. Judiciary Comm., Sectional Analysis of Proposed S.B. 186, 27th Leg.,
2d. Sess. (2012) (emphasis added).
100
Compare id., with Sen. Judiciary Comm., Sectional Analysis of Proposed
S.B. 210, 27th Leg., 2d Sess. (2012).
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the basis of the probation violation.
When a court imposes sentence for a probation violation in
these cases, the court is not obligated to impose the full
amount of remaining suspended time, but rather must
consider the nature of the probation violation in light of
applicable sentencing law and impose an appropriate
sentence, subject to the caveat that its authority to impose an
appropriate sentence does not include the authority to
terminate or reduce the term of probation or the suspended
term of imprisonment.[101]
This analysis did not mention overruling Henry, and it referred to judges
“unilaterally” terminating or reducing periods of probation. Ray highlights these
differences and argues that the sectional analysis “fails to articulate or even fairly imply
that the proposed legislation would have the effect of eliminating a defendant’s right to
reject probation.”
Although differences in the sectional analysis of S.B. 210 could suggest the
legislature intended this bill to do something different than S.B. 186 despite using the
same text, that inference is undercut by the Department of Law’s bill review of S.B.
210,102 which echoes the original description of S.B. 186:
[S.B.] 210 would adopt a provision that limits a court’s
ability to change the terms of a plea negotiated by the
prosecution and the defense under Rule 11, Alaska Rules of
Criminal Procedure and accepted by the court at sentencing.
If the parties agreed to a specific term of probation or a
specific term of suspended incarceration in the negotiated
plea, the court later at a probation revocation proceeding
could not reduce the agreed upon terms, except to the extent
101
Sen. Judiciary Comm., Sectional Analysis of Proposed S.B. 210, 27th Leg.,
2d Sess. (2012) (emphasis omitted).
102
See State v. Fyfe, 370 P.3d 1092, 1097-98 (Alaska 2016) (accepting court
of appeals’ reliance on governor’s transmittal letter in legislative history analysis).
-32- 7605
that the court imposes a period of incarceration for the
probation violation. This has the effect of overruling a
decision by the court of appeals in State v. Henry and Fulton,
240 P.3d 846 (Alaska App. 2010). Judges, in sentencing a
person who has violated a condition of probation, must still
apply the Chaney criteria, AS 12.55.005, in deciding how
much, if any, of the suspended period of incarceration should
be imposed for the probation violation. The parties may
agree to a change in the terms, but without the agreement of
the defense and prosecution, the court may not order a
change.[103]
The reference to Henry and the absence of the term “unilateral” tend to support the
inference that the legislature intended to prevent a judge from reducing a previously-
agreed-upon period of probation in all situations, whether on the judge’s own initiative
or at the defendant’s request. And the reference to Chaney again refutes the view that
the judge must instead sentence the defendant to serve the full balance of suspended
time. Even so, the written analyses of the bill do not give us a crystal clear
understanding of legislative intent.
As previously noted, “[w]here a statute’s meaning appears plain and
unambiguous . . . the party asserting a different meaning bears a correspondingly heavy
burden of demonstrating contrary legislative intent.”104 The plain text of the statute gives
a judge no power to alter probation contained in a Rule 11 agreement unless both the
prosecution and defendant agree. This makes it impossible for a judge to honor
defendants’ rights, recognized in Henry, to reject probation contained in their Rule 11
103
Letter on S.B. 210 from Michael C. Geraghty, Att’y Gen., to Governor
Sean Parnell (Apr. 23, 2012).
104
Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 193 (Alaska
2007) (alterations in original) (quoting State v. Alaska State Emps. Ass’n/AFSCME Local
52, 923 P.2d 18, 23 (Alaska 1996)).
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agreements. Although portions of the legislative history can be read in different ways,
much of it suggests an intent to overrule Henry. The legislative history therefore fails
to convince us that the legislature did not intend the effect of the terms it used in
AS 12.55.090(f): that a judge may not reduce a period of probation unless the
prosecution agrees, even if the defendant wants the judge to do so.
D. Abolishing A Defendant’s Right To Reject Probation Provided For In
A Rule 11 Agreement Is A Plausible Legislative Purpose.
When interpreting a statute, we consider not only its text and legislative
history, but also common sense and legislative purpose.105 Ray points to a practical
problem to argue that the legislature did not really mean to abolish defendants’ right to
reject probation provided for in their Rule 11 agreements. A defendant can still
functionally reject probation by immediately violating the terms of probation upon each
release and being quickly sent back to prison. The potential futility of preventing a
defendant from rejecting probation is, Ray argues, a reason to think the legislature did
not mean to do so.
We are not persuaded. The parole statutes supply a counterpoint to Ray’s
argument. The legislature has adopted a system of mandatory parole as “a mechanism
for achieving the rehabilitative goal of sentencing by helping offenders reintegrate into
society.”106 Defendants who do not wish to be on parole or abide by parole conditions
can defeat this goal by violating their parole conditions immediately upon release.
Presumably the legislature was aware of this dynamic but nevertheless chose to make no
105
Vandenberg v. State, Dep’t of Health & Soc. Servs., 371 P.3d 602, 606
(Alaska 2016).
106
State v. Shetters, 246 P.3d 332, 336 (Alaska App. 2010) (quoting State v.
Staael, 807 P.2d 513, 518 (Alaska App. 1991)); see also AS 33.16.010 (providing for
mandatory parole); AS 33.20.040 (providing for mandatory parole based on good time
credits).
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exception for those who do not wish to abide by conditions of parole. Despite the
differences between mandatory parole and probation, it is plausible to think that the
legislature made a similar choice here: to preclude defendants from rejecting probation
provided for in their Rule 11 agreements even though some defendants might
functionally reject probation by violating their conditions immediately upon release.
Perhaps the legislature hoped that even a defendant who wished to reject probation
might, upon giving it another go, have a change of heart. But even if not, precluding a
defendant from rejecting further probation ensures that such a defendant will still
(eventually) serve the full period of imprisonment agreed to in the plea deal, which was
not true under Henry.107 Therefore we reject Ray’s suggestion that interpreting
AS 12.55.090(f) to eliminate a defendant’s right to reject probation is pointless and an
implausible interpretation of legislative intent.108
***
Having considered the text, legislative history, and purpose of
AS 12.55.090(f), we agree with Judge Allard that the statute does not permit a defendant
to reject probation provided for in a Rule 11 agreement unless the prosecution agrees.
Rather, the statute requires the judge to apply the Chaney criteria to sentence the
defendant for the probation violation. The judge may impose the balance of the
107
240 P.3d 846, 851 (Alaska App. 2010) (“[T]he superior court did not
commit error when it allowed the defendants to reject further probation, and when it
sentenced the defendants to less than the full amount of their suspended jail time.”).
108
In light of our analysis, Ray’s reliance on the rule of lenity is unavailing.
The rule of lenity “comes into play only when, after employing normal methods of
statutory construction, the legislature’s intent cannot be ascertained or remains
ambiguous.” Mun. of Anchorage v. Brooks, 397 P.3d 346, 349 (Alaska App. 2017)
(quoting De Nardo v. State, 819 P.2d 903, 907 (Alaska App. 1991)). In this case, we are
able to discern the legislature’s intent by applying the normal rules of statutory
construction, so the rule of lenity does not come into play.
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defendant’s remaining term of active imprisonment if warranted by the Chaney criteria,
but is not required to do so.109
IV. CONCLUSION
We REMAND this case to the court of appeals for further proceedings
consistent with this opinion.
109
Ray argues in the alternative that the prosecutor in his case actually agreed
to his request to serve no further probation, so AS 12.55.090(f) does not bar the judge
from honoring that request. The court of appeals did not address this argument in its
opinion and certified to us only the question of how AS 12.55.090(f) is to be interpreted.
We address only the certified question and express no opinion on Ray’s alternative
argument.
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CARNEY, Justice, dissenting.
I agree with the court that this case presents a terribly close question, as
demonstrated by each of the court of appeals judges’ separate opinions. But I
respectfully dissent from the court’s decision that former AS 12.55.090(f) abrogates a
defendant’s right to reject probation and serve a sentence of imprisonment without
further probation.1
I agree with the court and all of the court of appeals judges that the
legislature passed former AS 12.55.090(f) in reaction to the court of appeals’ decision
in Henry v. State.2 I also agree with the court that the legislature’s “focus on judges
abrogating the terms of a Rule 11 agreement does not rule out an intent to prevent judges
from doing so at the behest of a defendant”3 — which, as the court notes, was precisely
the situation in Henry.
Where I differ with the court, and Judges Allard and Mannheimer, is
regarding which aspect of Henry the legislature targeted. I agree with Judge Suddock
that the legislature intended to abrogate a defendant’s right to get a “better deal” than the
one the defendant had reached with the prosecution.4 For this reason I agree with
1
Opinion at 1-2.
2
240 P.3d 846 (Alaska App. 2010); see also Opinion at 13, 19-20
(explaining former AS 12.55.090(f) evinced an intent to legislatively overrule Henry).
3
Opinion at 26.
4
I agree in large part with Judge Mannheimer’s analysis, which in many
ways parallels Judge Suddock’s. But I disagree with his conclusion that a defendant
remains entitled to a new Chaney evaluation of the appropriate amount of time to be
imposed after the defendant rejects further probation. See Ray v. State, 452 P.3d 688,
696-99 (Alaska App. 2019) (Mannheimer, J., writing separately). It is because the new
evaluation allowed the Henry defendants to obtain a “better deal” than they had
(continued...)
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Judge Suddock that former AS 12.55.090(f) limited, rather than abolished, a defendant’s
right to reject probation if the defendant had entered into a Rule 11 plea agreement with
the State.5
I also disagree with the court’s textual analysis of AS 12.55.090(f). If the
practical effect of the statute “makes it impossible for a defendant to reject probation
previously agreed to in a Rule 11 plea bargain,” what then follows?6 Does the statute,
à la Chinuhuk, create a new type of probation untethered from a suspended portion of a
sentence of imprisonment?7 It seems to me that if the legislature intended to make it
impossible for a defendant to be released from probation, it would have said so.8 I am
not persuaded that this is “the straightforward effect” of the statute: if the text were
4
(...continued)
bargained for that the legislature passed former AS 12.55.090(f).
5
See Ray, 452 P.3d at 701 (Suddock, J., writing separately).
6
Opinion at 19.
7
See, Chinuhuk v State, 472 P.3d 511 (Alaska 2020).
8
At one point the court states that the legislature need “not expressly mention
the right to reject probation” to abrogate it so long as the operation of the plain text is
clear. Opinion at 16. But in the next paragraph the court rejects Judge Mannheimer’s
plain text argument that the statute addresses only the sentencing court’s discretion, Ray,
452 P.3d at 696 (Mannheimer, J., writing separately), because the legislature did not
expressly mention the superior court’s right to “unilaterally reduce the specific period
of probation.” Opinion at 17 (emphasis in original). The rule the court seems to adopt
is that when the legislature seeks to reduce the rights of criminal defendants it need not
be specific, but when it seeks to limit the discretion afforded to a judge it must do so with
precision. The rule of lenity requires that we adopt the opposite presumption. See Ward
v. State, Dep’t of Pub. Safety, 288 P.3d 94, 97-98 (Alaska 2012) (“The rule of lenity
provides: ‘If a statute establishing a penalty is susceptible of more than one meaning,
it should be construed so as to provide the most lenient penalty.’ ” (quoting State v.
Andrews, 707 P.2d 900, 907 (Alaska App. 1985))).
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“straightforward,” I doubt that each court of appeals judge would have written a separate
opinion.9
My second disagreement is with the court’s dismissal of the contrary
conclusions reached by Judges Mannheimer and Suddock because they cite “[s]nippets
of [legislative] testimony.”10 I do not disagree that one could select “snippets” to support
each of the three conclusions reached by the court of appeals.11 But it is clear from the
legislative testimony of representatives from both the Department of Law and the Public
Defender Agency that the statute took aim at preventing an abrogation of “the deal”12
9
The court’s opinion is premised on the notion that the “straightforward
effect of the” statute is clear. Opinion at 16. Given that two other reasonable
interpretations have been identified, however, the court is really arguing that its selection
of one of the three “plausible” interpretations of the statute is clearer than the others.
Opinion at 34-35. But the rule of lenity is not satisfied, and a statute does not become
unambiguous, merely because we believe we have found a more plausible interpretation.
We must also determine that the statute is not “susceptible to multiple reasonable
interpretations.” Ward, 288 P.3d at 97. If the statute is reasonably susceptible to more
than one interpretation, then the statute is ambiguous and “it should be construed so as
to provide the most lenient penalty.” Id. at 97-98. Even if I agreed with the court’s
interpretation, I could not say that the other interpretations are unreasonable. I therefore
agree with Judge Mannheimer that “the meaning of the statute is, at best, ambiguous,”
Ray, 452 P.3d at 697, which cuts against the severe interpretation advanced by the court.
10
Opinion at 25.
11
Id. (“Snippets of [the] testimony can be read to support Judge
Mannheimer’s, Judge Suddock’s, or Judge Allard’s interpretation of the statute . . . .”).
12
See Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at
2:41:00, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Feb. 10, 2012) (referring to plea agreement as “the deal”); Testimony of Richard
Svobodny, Deputy Att’y Gen. at 2:21:00-2:24:59, Hearing on S.B. 210 Before the H.
Judiciary Comm., 27th Leg., 2d Sess. (Apr. 12, 2012) (describing former AS
12.55.090(f) as “kind of a deal is a deal section”); Testimony of Anne Carpeneti,
(continued...)
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reached to resolve a case. The Department of Law supported, and the Public Defender
Agency opposed, the statute’s erasure of defendants’ right to reject probation and get a
“better deal” than they bargained for.
The Department of Law worked with legislators in two sessions to
introduce bills to ensure that neither judges who were “tired of”13 particular defendants
nor defendants who tired of probation could change “the deal” that had been embodied
in a Rule 11 agreement.14 The Public Defender Agency opposed the bills precisely
because they would alter defendants’ right, recently reaffirmed in Henry, to reject
probation, request to serve only a period of imprisonment, and to have that period of
probation calculated anew based on a reconsideration of the Chaney criteria.
After her presentation to the legislature about the Department of Law’s
disagreement with Henry, Assistant Attorney General Anne Carpeneti answered a
clarifying question from a senator.15 Importantly, she told the senator that if the judge
12
(...continued)
Assistant Att’y Gen. at 1:53, Hearing on S.B. 210 Before the H. Judiciary Comm., 27th
Leg., 2d Sess. (Apr. 11, 2012) (“The parties bargained on this period of probation. The
court accepted that . . . bargain. And the defendant has violated [it]. In terms of the
original agreement that was made, that [should] be upheld.”); Testimony of Douglas
Moody, Deputy Dir., Pub. Def. Agency at 2:26:00, Hearing on S.B. 210 Before the H.
Judiciary Comm., 27th Leg., 2d Sess. (Apr. 11, 2012) (“Most of these sentences are
negotiated and what happens is the state gives up something and the defense gives up
something. . . . [But] [i]t’s not an equal bargaining position.”).
13
Testimony of Richard Svobodny, Deputy Att’y Gen. at 2:31:00-2:33:59,
Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 12, 2012).
14
See, e.g., id. at 2:34:00 (describing right to reject probation by serving
remaining suspended sentence as “kind of a reward for doing something bad”).
15
Comments of Sen. Joe Paskvan at 2:04:17-2:12:03, Hearing on S.B. 186
Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
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“had sent [Henry] back to jail for 19 months, as the original bargain had been, . . . that
would have been fine because at that point, he had served everything he had agreed to.”16
Douglas Moody, deputy director of the Public Defender Agency, testified
after Carpeneti in opposition.17 A different senator clarified his understanding of the bill,
that it would mean a judge “can’t . . . say I’ve decided that the suspended time imposed
in the first place was too much and eliminate it.”18 Moody confirmed that “is exactly
what this provision does is say the judge can’t [reduce the suspended sentence]” and that
was why his agency opposed it.19
Additional testimony from representatives of both agencies was consistent
with this view. Both focused on the proposed law’s impact on the deal originally
reached to resolve the case.20 And both agencies’ positions centered on whether “a court
16
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 2:05:15-2:06:39,
Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10,
2012).
17
Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:36:45
2:50:20, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Feb. 10, 2012).
18
Comments of Sen. Hollis French., Chair, Sen. Judiciary Comm. at 2:46:40
2:47:01, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Feb. 10, 2012).
19
Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:47,
Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10,
2012).
20
See, e.g., Testimony of Richard Svobodny, Deputy Att’y Gen. at 2:21:21
29, Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 12,
2012) (“Both sides have negotiated in good faith over what is an appropriate sentence
in [a given] case. . . . [The prosecution] made a deal. [It] thought . . . [the deal] was
negotiated in good faith, and the only thing that has happened . . . is the [probationer] has
(continued...)
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could ever act inconsistently with the original plea agreement.”21
Like Judge Suddock, I conclude that when it passed former
AS 12.55.090(f), the legislature intended to prevent a court from doing anything
inconsistent with the original deal.22 Like Judge Suddock and Judge Mannheimer, I
conclude that the legislature did not intend to abolish a defendant’s right to reject further
probation. And like Judge Suddock, I conclude that former AS 12.55.090(f) set the
“price” for such a rejection of probation: service of the entire remaining amount of the
originally agreed upon suspended time.
20
(...continued)
violated the conditions of probation, and that shouldn’t be a reward to them.”);
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 1:37:13-1:47:50, Hearing on S.B.
210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 11, 2012) (“[W]hen the
state and the defense enter into plea negotiations, both sides give up some things and
gain some things . . . in exchange for a particular agreement. . . . The parties bargained
on this period of probation. The court accepted that . . . bargain . . . and the defendant
has violated [it]. In terms of the agreement that was originally made, that [should] be
upheld.”); Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:13:00
2:36:30, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess.
(Apr. 11, 2012) (“Most of these sentences are negotiated and what happens is the state
gives up something and the defense gives up something.”).
21
Ray v. State, 452 P.3d 688, 700 (Alaska App. 2019) (Suddock, J., writing
separately) (emphasis in original).
22
This includes increasing the period of probation as the superior court did
here. See id. at 690; Opinion at 3.
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