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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MUNICIPALITY OF ANCHORAGE,
                                                   Court of Appeals No. A-12850
                         Petitioner,              Trial Court No. 3AN-16-2755 CR

                  v.
                                                          O P I N I O N
WAYNE EDWARD BEEZLEY,

                         Respondent.                No. 2614 — August 17, 2018


           Petition for Review from the District Court, Third Judicial
           District, Anchorage, Douglas Kossler, Judge.

           Appearances: Sarah E. Stanley, Assistant Municipal Prosecutor,
           and William D. Falsey, Municipal Attorney, Anchorage, for the
           Petitioner. No appearance for the Respondent. Renee
           McFarland, Assistant Public Defender, and Quinlan Steiner,
           Public Defender, Anchorage, for amicus curiae Alaska Public
           Defender Agency.

           Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
           Judges.

           Judge MANNHEIMER.
              The defendant in this case, Wayne Edward Beezley, stands convicted of the
Anchorage municipal offense of reckless driving. 1 Under the Anchorage Municipal
Code, a person convicted of reckless driving may be imprisoned for up to 1 year. 2 This
1-year maximum penalty was established at a time when the maximum penalty provided
for class A misdemeanors under state law was also 1 year’s imprisonment. See the
pre-2016 version of AS 12.55.135(a).
              But in 2016, the Alaska legislature modified AS 12.55.135(a) so that not
all class A misdemeanor offenders are subject to the 1-year maximum sentence. 3 Under
the current version of the statute, the 1-year maximum sentence applies only if one or
more of the criteria listed in AS 12.55.135(a)(1) are met. 4 If none of these criteria are




   1
       Anchorage Municipal Code (AMC) § 09.28.010.A.
   2
       AMC § 09.48.010.D.2.
   3
       See SLA 2016, chapter 36, § 91.
   4
      Under the current version of AS 12.55.135(a)(1), a sentence of up to 1 year’s
imprisonment can be imposed for a class A misdemeanor if:

       (A) the conviction is for a crime with a mandatory minimum term of 30 days or more
   of active imprisonment;

      (B) the trier of fact finds the aggravating factor that the conduct constituting the
   offense was among the most serious conduct included in the definition of the offense;

        (C) the defendant has past criminal convictions for conduct violative of criminal laws
   ... similar in nature to the offense for which the defendant is being sentenced;

       (D) the conviction is for an assault in the fourth degree under AS 11.41.230; or

        (E) the conviction is for a violation of (i) AS 11.41.427, or (ii) AS 11.41.440, or
   (iii) AS 11.41.460, if the indecent exposure is before a person under 16 years of age, or
   (iv) AS 11.61.116(c)(2), or (v) AS 11.61.118(a)(2).

                                            –2–                                          2614

met, then the maximum sentence for a class A misdemeanor is 30 days’ imprisonment.
See AS 12.55.135(a)(2).
             In essence, the legislature created a presumptive sentencing ceiling of
30 days’ imprisonment for most class A misdemeanors — a ceiling that cannot be
exceeded unless the State proves one of the factors listed in subsection (a)(1) of the
statute.
             Even though the municipal offense of reckless driving is not a “class A
misdemeanor”, the district court ruled that the presumptive 30-day sentencing ceiling
codified in AS 12.55.135(a) governs Beezley’s sentencing for reckless driving under
municipal law. That is, the district court ruled that Beezley’s sentence could not exceed
30 days’ imprisonment unless the Municipality proved one of the factors set forth in
AS 12.55.135(a)(1).
             The Municipality has petitioned us to review and reverse the district court’s
ruling. When Beezley’s court-appointed attorneys, the Denali Law Group, filed no
response to the Municipality’s petition, we invited the Alaska Public Defender Agency
to enter this case as an amicus curiae to argue Beezley’s position. And because the
district court’s rationale apparently applies to State prosecutions for reckless driving
under AS 28.35.400, we invited the State of Alaska to file an amicus curiae brief as well
— an invitation that the State declined.
             For the reasons explained in this opinion, we agree with the district court
that the presumptive 30-day sentencing ceiling established in AS 12.55.135(a) applies
to a sentencing for reckless driving under Anchorage municipal law.




                                           –3–                                       2614

       A more detailed examination of the legal background of this case


              As we explained earlier, the legislature has amended AS 12.55.135(a)
so that not all defendants convicted of a class A misdemeanor are subject to a 1-year
maximum term of imprisonment. There is now a presumptive 30-day ceiling on
sentencing for most class A misdemeanors unless the State proves one of the factors
listed in subsection (a)(1) of the statute.
              The problem in Beezley’s case arises from the fact that AS 12.55.135(a)
addresses only the penalties for misdemeanor offenses that are classified as “class A”
misdemeanors, and there are many misdemeanors defined under state and municipal law
that have no classification.
              All of the misdemeanor offenses defined in our state’s criminal code
(Title 11 of the statutes) are explicitly designated as either class A or class B
misdemeanors, so the application of AS 12.55.135(a) is clear with respect to these
crimes: the statute applies to class A misdemeanors, and it does not apply to class B
misdemeanors.
              But there are other misdemeanor offenses defined in titles other than Title
11, and (as we are about to explain) many of these misdemeanors are neither class A nor
class B. Instead, they are non-classified.
              There is a provision of the criminal code, AS 11.81.250(c), which declares
that a misdemeanor defined in a title of the statutes other than Title 11 is deemed a
class A misdemeanor if the other title does not specify a penalty for that misdemeanor.
              But AS 11.81.250(c) does not cover the many misdemeanors in other titles
of the statutes which are not designated as class A or class B, but which do have a
specified penalty. For instance, many misdemeanors defined in Title 28 of our statutes
(motor vehicles) are not designated as class A or class B, but these misdemeanors have

                                              –4–                                   2614

a specified penalty — because Title 28 contains a general provision, AS 28.90.010,
which establishes the penalty for all violations of Title 28 (unless a different penalty is
specified in the criminal statute itself).       The state offense of reckless driving,
AS 28.35.400, falls within this non-classified category: it is not designated as either a
class A or class B misdemeanor, but it has a specified penalty.
              See also AS 16.05.430, AS 16.05.665, AS 16.05.723, AS 16.05.783,
AS 16.05.831, and AS 16.05.905 — all of which specify penalties for misdemeanor fish
and game offenses, without designating them as either class A or class B. These
offenses, too, are all non-classified misdemeanors.
              Similarly, Title 09 of the Anchorage Municipal Code contains numerous
offenses which carry penalties of up to 1 year’s imprisonment, but which are not
designated as either class A or class B misdemeanors. These municipal misdemeanors
are likewise non-classified.
              The defendant in this case, Wayne Edward Beezley, was convicted of one
such municipal misdemeanor: the municipal offense of reckless driving. 5


       The relationship between the penalty for the state offense of reckless
       driving and the penalty for the municipal offense of reckless driving


              In Alaska, home rule municipalities such as the Municipality of Anchorage
are authorized to enact their own traffic laws. 6 The State of Alaska and the Municipality



   5
       AMC § 09.28.010.A.
   6
       See AS 29.04.010: “A home rule municipality is a municipal corporation and political
subdivision. It is a city or a borough that has adopted a home rule charter, or it is a unified
municipality. A home rule municipality has all legislative powers not prohibited by law or
charter.”

                                            –5–                                           2614

of Anchorage have each enacted provisions that prohibit reckless driving: AS 28.35.400
and AMC § 09.28.010.
              However, AS 28.01.010(a) declares that “a municipality may not enact [a
motor vehicle] ordinance that is inconsistent with the provisions of [Title 28 of the
Alaska Statutes] or the regulations adopted under [that] title.” And AS 29.25.070(g)
declares that whenever a municipality proscribes conduct by ordinance, and there is a
comparable state crime defined in Title 11 or Title 28 of the statutes, “the municipality
may not impose a greater punishment than that imposed for a violation of the state
crime.”
              Because of these statutes, a municipality may not enact penalty provisions
for traffic offenses that exceed the penalties for the corresponding state traffic offenses
(unless the Alaska legislature has otherwise expressly authorized the deviation).
              In its brief to this Court, the Municipality of Anchorage assumes that the
state offense of reckless driving and the municipal offense of reckless driving are equally
governed — or equally not governed — by the presumptive 30-day sentencing ceiling
codified in AS 12.55.135(a). Indeed, in many portions of its brief, the Municipality
discusses the state reckless driving statute, AS 28.35.400, as if Beezley had been charged
under that statute.
              We take the Municipality’s briefing of this issue as an acknowledgement
that if the presumptive 30-day sentencing ceiling codified in AS 12.55.135(a) applies to
the state offense of reckless driving, then the ceiling also applies to the municipal offense
of reckless driving.




                                            –6–                                         2614

       Why we conclude that the presumptive sentencing ceiling established
       in AS 12.55.135(a) applies to the non-classified misdemeanor of reckless
       driving


              Even though the language of AS 12.55.135(a) speaks only of class A
misdemeanors, Alaska does not adhere to the “plain meaning” rule of statutory
construction. Rather, Alaska uses a “sliding scale” analysis that allows a court to
consider the legislature’s intent when interpreting a statute, even when the literal wording
of the statute apparently conflicts with that intent. 7
              The 2016 amendment to AS 12.55.135(a) was only one part of a
comprehensive revision of our criminal statutes: see SLA 2016, chapter 36, colloquially
known as “Senate Bill 91”. For this reason, the Public Defender Agency urges us to
interpret AS 12.55.135(a) broadly, in light of the legislature’s overarching motivations
for enacting Senate Bill 91. According to the Public Defender Agency, it would be
consistent with the broad purposes of Senate Bill 91 to interpret AS 12.55.135(a) as
applying to all major misdemeanors — both class A misdemeanors and non-classified
misdemeanors — even though the statute itself refers only to class A misdemeanors.
              More specifically, the Public Defender Agency points out that Senate Bill
91 was the product of recommendations issued by the Alaska Criminal Justice
Commission. 8 The Commission found, based on prison population data for the
preceding decade, that “incarceration [was no] more effective at reducing recidivism than




   7
       See, e.g., State v. Fyfe, 370 P.3d 1092, 1094-95 (Alaska 2016).
   8
       See the sponsor statement of Senator John Coghill for Senate Bill 91, version N (29th
Legislature), February 10, 2016.

                                            –7–                                        2614

non-custodial sanctions” — that, indeed, for low-level offenders, sending them to prison
seemingly increased the rate of recidivism. 9
                Based on these findings, the Commission issued several recommendations
whose purpose was to try to ensure that Alaska’s prison space was reserved mainly for
violent and other serious offenders. 10 One way to accomplish this, the Commission
noted, was to limit the use of imprisonment as punishment for low-level misdemeanor
offenders. 11     And one of the Commission’s specific proposals was to reduce
the sentencing range for non-aggravated class A misdemeanors to no more than
30 days 12 — a proposal that was ultimately embodied in the current version of
AS 12.55.135(a).
                But in the discussions surrounding AS 12.55.135(a), the legislature did not
address the non-classified misdemeanors codified in titles of the Alaska Statutes other
than Title 11. The majority of the legislative discussion focused on identifying which
class A misdemeanors defined in Title 11 would be exempted from the new 30-day
sentencing ceiling. 13




   9
        See Alaska Criminal Justice Reinvestment Report (2015), pp. 8-9.
   10
        Id., p. 14.
   11
        Id., p. 18.
   12
        Id., pp. 18-19.
   13
        See the statement of Daniel George (staff to Sen. Bill Stoltze) to the Senate State
Affairs Committee on March 1, 2016 @ 8:53:30 - 8:54:00; the statement of Jordan Schilling
(staff to Sen. John Coghill) to the House Judiciary Committee on April 11, 2016 @ 1:18:45 ­
1:19:05; the statement of Sen. Coghill to the House Finance Committee on April 20, 2016
@ 8:41:50 - 8:42:11; and the statement of Jordan Schilling to the House Finance Committee
on April 26, 2016 @ 5:36:29 - 5:36:55.

                                            –8–                                       2614

                Even though this legislative history indicates that the legislature failed to
expressly consider the non-classified misdemeanors codified in other titles of the Alaska
statutes, the Public Defender Agency argues that the legislature’s purpose in revising
AS 12.55.135(a) is obvious: according to the Agency, the presumptive 30-day ceiling
for most misdemeanor sentences was intended to reduce the number of people sent to jail
for non-aggravated misdemeanors, to reduce the amount of time these offenders spent
in jail, and to encourage sentencing judges to actively consider non-prison sentencing
alternatives.
                This may all be true, but it is no easy task to map AS 12.55.135(a)’s
presumptive 30-day sentencing ceiling onto all the non-classified misdemeanors in the
other titles of the Alaska statutes. Some of these non-classified misdemeanors have
1-year maximum penalties; some have 6-month maximum penalties; some have 90-day
maximum penalties. And the great majority of these non-classified misdemeanors deal
with areas of activity that have their own special policies and regulatory needs — for
example, the motor vehicle offenses found in Title 28, the fish and game offenses found
in Title 16, and the business and professions offenses found in Title 8.
                But to resolve Beezley’s case, the only issue we need to decide is whether
the presumptive 30-day sentencing ceiling applies to the non-classified offense of
reckless driving.
                As defined in AS 28.35.400(a), a person commits the crime of reckless
driving if they drive a motor vehicle “in a manner that creates a substantial and
unjustifiable risk of harm to a person or to property”. This statute does not require proof
that anyone (or anything) was injured by the defendant’s act of driving; the creation of
the risk is sufficient.




                                             –9–                                        2614

              In contrast, several class A misdemeanors require proof of actual injury to
persons or damage to property. 14 It is questionable whether the legislature would impose
a presumptive 30-day ceiling on the sentences for these class A misdemeanors while, at
the same time, deciding to allow unrestricted sentencing of up to 1 year’s imprisonment
for an act of recklessness that does not result in injury or property damage.
              In this same vein, we note that the class A misdemeanor offense of driving
under the influence, AS 28.35.030(a), is normally viewed as a more serious offense than
reckless driving. Even though both offenses carry a maximum sentence of 1 year’s
imprisonment, the offense of driving under the influence has a structured series of
mandatory minimum sentences (depending on the offender’s criminal history). And
under Alaska law, the offense of reckless driving is often a lesser included offense of
driving under the influence. 15
              Because misdemeanor driving under the influence is expressly designated
as a class A misdemeanor, 16 it is subject to the presumptive 30-day sentencing ceiling
codified in AS 12.55.135(a). Thus, if this 30-day ceiling did not also apply to reckless
driving, this lesser offense would effectively carry a greater maximum penalty than
misdemeanor driving under the influence. 17

   14
      See, e.g., AS 11.46.430(a) (second-degree criminally negligent burning);
AS 11.46.484(a)(1) (fourth-degree criminal mischief); AS 11.51.100(a) (first-degree
endangering the welfare of a child).
   15
      See Bertilson v. State, 64 P.3d 180, 183 (Alaska App. 2003); Comeau v. State, 758
P.2d 108, 114 (Alaska App. 1988).
   16
        See AS 28.35.030(b).
   17
      See Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal
Procedure (4th ed. 2015), § 24.8(e), Vol. 6, p. 648 & n. 99 (discussing the rule followed in
some jurisdictions that a lesser included offense must carry no greater penalty than the
                                                                               (continued...)

                                           – 10 –                                       2614

              In analogous circumstances, where the literal wording of sentencing statutes
would lead to illogical discrepancies between the sentence for a more serious crime and
the sentence for a less serious one, this Court has interpreted the sentencing statutes in
a manner that eliminates the sentencing incongruity. For example, in Pruett v. State, 742
P.2d 257 (Alaska App. 1987), this Court reconciled sentencing statutes which imposed
a 5-year presumptive term of imprisonment for manslaughter but which imposed a
greater punishment (a 7-year presumptive term) for the less serious crime of first-degree
assault (i.e., inflicting serious physical injury). We held that sentencing for first-degree
assault had to be governed by the same 5-year presumptive term that applied to
manslaughter. 18
              Likewise, in Smith v. State, 28 P.3d 323 (Alaska App. 2001), this Court
reconciled sentencing statutes which imposed a 5-year presumptive term of
imprisonment for manslaughter but which imposed a greater presumptive term (7 years)
for the less serious offense of first-degree weapons misconduct — i.e., discharging a
firearm from a moving vehicle, even if the discharge did not injure anyone. Again, we
held that the presumptive term of imprisonment for the less serious offense could not
exceed 5 years. 19
              As in Pruett and Smith, we conclude that the legislature could not have
intended to create the sentencing discrepancy that would exist if the 30-day presumptive
sentencing ceiling applied to driving under the influence but did not apply to reckless
driving.


   17
      (...continued)
charged offense).
   18
        Pruett, 742 P.2d at 262-63.
   19
        Smith, 28 P.3d at 326.

                                          – 11 –                                       2614

             We therefore conclude that the presumptive 30-day sentencing ceiling
codified in AS 12.55.135(a) applies to sentencing for reckless driving — both under state
law, AS 28.35.400(a), and under Anchorage municipal law, AMC § 09.28.010.A.
             The decision of the district court is AFFIRMED.




                                         – 12 –                                     2614

