Allen v. Municipality of Anchorage

168 P.3d 890, 2007 Alas. App. LEXIS 183, 2007 WL 2965781

• Court: Court of Appeals of Alaska
• Decided: October 12, 2007
• Docket: A-9580
• Status: Published

Opinions

OPINION

COATS, Chief Judge.

Krystal R. Allen pleaded no contest to two counts of cruelty to animals. She was sentenced to a 30-day term to serve and was placed on probation for 10 years. One of the conditions of Allen's probation prohibits her from possessing any animals other than her son's dog. Allen argues that the district court abused its discretion by imposing this condition of probation because it will frustrate her rehabilitation.

The Municipality argues that, by statute, this Court has no jurisdiction to hear this appeal because Allen was sentenced to fewer than 120 days to serve. We conclude that we do have jurisdiction to decide Allen's claim. We also conclude that the district court did not abuse its discretion by restricting Allen's possession of animals during the term of her probation. We therefore affirm Allen's sentence.

Facts and proceedings

On October 6, 2004, the Anchorage Police Department and the Anchorage Animal Care and Control Center responded to complaints of a foul odor coming from Allen's home.

At Allen's sentencing hearing, Lucius Burns, the lead enforcement officer for Animal Control, testified that the home smelled of cat urine to the point where it "literally burnt your throat." There were approximately forty cats in the kitchen, and the floor was covered with debris and animal fecal matter. There were more cats in kennels downstairs-a total of approximately 180 to 200 cats in the home. There were also three dogs, thirteen birds, and three chickens. Burns stated it was "probably the foulest environment I've been in dealing with cats." The majority of the cats were emaciated, had ulcerated injuries on their eyes and upper respiratory infections, and were not socialized to people.

Anchorage Police Officer Jackie Valdez testified that the home was filthy and unsafe for people or animals. There was rotten meat dripping out of a refrigerator. Cats were locked in bedrooms and kennels, and some were even inside the ceiling. There was no clean drinking water and little food.

Dr. Myra Wilson, a veterinarian and manager of Animal Control, testified that, while the three dogs appeared well-fed, the birds did not have food or water and their perches were smeared with feces. When they were given food and water, the birds ate and drank continuously for more than twenty minutes. Many of the birds did not have sufficient muscle mass, and most had an avian herpes virus. Wilson testified that this was the most serious case she had encountered in her five years at Animal Control in terms of the number of animals involved.

Alien was charged with one count of eruelty to animals for abusing an animal, two counts of cruelty to animals for maintaining ° an animal in an inhumane manner, and one count of tampering with official proceedings.¹ Allen pleaded no contest to the two counts of cruelty to animals for maintaining animals in an inhumane manner, and the Municipality dismissed the other two counts.

During sentencing, Allen emphasized the progress she had made toward rehabilitation. She did not dispute the Municipality's evidence on the condition of the animals and the home. Nor did she dispute that she had a history of cruelty to animals. During the trial, Wilson testified that Animal Control had documented similar conditions in Allen's home in 1990, 1994, 1997, and 1999. And in 1990 and 1995, Allen was convicted of cruelty to children and charged with, but not prosecuted for, cruelty to animals.

Judge Lohff found that "the harm that occurred to the animals [was] horrendous.... They suffered horribly, many of them." He found the case to be a worst offense. And, while he considered Allen's efforts at rehabilitation, he also considered Allen's history of eruelty to animals.

Judge Lohff imposed 360 days with 330 days suspended on the first count of animal cruelty, 360 days with 360 days suspended on the second count, and a 10-year term of probation. He prohibited Allen from having any animal in her care, custody, control, or ownership during her term of probation, other than her son's dog. In discussing this probation condition, Judge Lohff noted the lack of animal control probation supervisors and the practical difficulties of enforcement if Allen were allowed to have animals. Allen appeals the imposition of this probation condition.

Discussion

Why we have jurisdiction over this appeal

The Municipality begins by arguing that we do not have jurisdiction to hear this appeal because Allen was only sentenced to 30 days of unsuspended incarceration. The Municipality argues that, under AS 22.07.020(c), we only have jurisdiction to review misdemeanor sentences that exceed 120 days to serve.

We have previously held that AS 22.07.020(c) does not limit our authority to review a claim that a sentence is illegal, regardless of the length of that sentence.² But Allen is not claiming that her sentence is illegal; she claims that the district court abused its discretion under the Chaney sentencing criteria by imposing a 10-year probation condition that limits her possession of animals.³ Her claim is therefore a "sentence appeal" for purposes of AS 22.07.020(c)(@)-an appeal "in which the defendant's sole assertion of error is that the sentencing judge abused his or her discretion by imposing too severe a sentence."⁴ We thus must decide whether AS 22.07.020(c)(2) prohibits us from considering any sentence appeal by a defendant whose term of imprisonment does not exceed 120 days, or whether the statute only prohibits us from considering sentence appeals that challenge that term of imprisonment as excessive.

The supreme court has inherent jurisdiction to review criminal sentences.⁵ We, however, are a statutory court and can only consider cases if we have been granted jurisdiction by the legislature.⁶

Our jurisdiction to hear misdemeanor sentence appeals is established by AS 22.07.020(c), which provides:

The court of appeals has jurisdiction to review ... (2) the final decision of the district court on a sentence imposed by it if the sentence exceeds 120 days of unsus-pended incarceration for a misdemeanor offense.

This jurisdiction statute incorporates the limitation on sentence appeals codified in AS 12.55.120(1).⁷ That statute grants defendants the right to appeal "[a] sentence of imprisonment exceeding 120 days for a misdemeanor offense ... on the ground that the sentence is excessive."

In Richardson v. State,⁸ we considered whether AS 12.55.120(a) limits sentence appeals to appeals that challenge the term of imprisonment as excessive.⁹ That statute does not mention whether a defendant can appeal other terms of a sentence, such as the amount of a fine, conditions of probation, or license revocation.¹⁰ Accordingly, the State argued in Richardson that we only had jurisdiction to consider sentence appeals that challenged the term of imprisonment.¹¹

In considering this argument, we recognized that the legislative history of AS 12.55.120 is silent on sentence appeals that involve matters other than terms of imprisonment.¹² But we reasoned that, because defendants often challenge both the length of their prison term and other aspects of their sentence, unnecessary administrative difficulties would result if we decided claims involving terms of imprisonment while the supreme court had discretion to review all other sentencing claims.¹³ We therefore held that, in the absence of any affirmative indication that the legislature intended to split jurisdiction in this way, defendants who received unsus-pended terms of imprisonment exceeding the statutory level could appeal any aspect of their sentence to this court.¹⁴

We are now faced with the question of whether we have jurisdiction to consider these types of claims (i.e., claims that do not involve a challenge to the term of imprisonment) when the term of imprisonment does not meet the statutory level.

We conclude that we have jurisdiction to review this type of claim. We begin by noting that we have not been consistent on whether we have jurisdiction to consider excessive sentence claims when the term of imprisonment is below the statutory level. In one opinion, Haggren v. State,¹⁵ and at least two memorandum opinions, we have held that we did not have jurisdiction to consider excessive sentence claims involving fines and forfeitures because the defendants had not received an unsuspended term of imprisonment that exceeded the statutory level.¹⁶ But in other cases we have considered these types of claims.¹⁷ For example, in Jordan v. State,¹⁸ we considered Jordan's claim that the forfeiture of his airplane was an excessive sentence even though Jordan had not been sentenced to any term of unsus-pended incarceration.¹⁹ In Kelley v. State,²⁰ a memorandum opinion, we considered Kelley's claim that his sentence-a $15,000 fine with $7500 suspended and forfeiture of his $3000 share of the profit from the illegally caught fish-was excessive.²¹ (Chief Judge Bryner concurred in the result in Kelley but argued that the court did not have jurisdiction to consider the claim.²²) And in Mahan v. State,²³ another animal cruelty case, we addressed the defendant's challenges to her term of probation, the conditions of her probation, and the amount of restitution ordered, even though her 1-year prison term was suspended.²⁴ We believe that this line of cases is correct and that we have jurisdiction to consider non-term-of imprisonment sentence appeals (eg., appeals challenging probation conditions, fines, forfeitures, and license revocations) regardless of the term of imprisonment imposed by the lower court.

When we interpret a statute, we presume "that the legislature intended every word, sentence, or provision of a statute to have some purpose, force, and effect, and that no words or provisions are superfluous."²⁵ But "Isltrict construction does not require that statutes be given the narrowest meaning allowed by the language; rather, the language should be given a "reasonable or common sense construction, consonant with the objectives of the legislature" The intent of the legislature must govern and the policies and purposes of the statute should not be defeated."²⁶

As noted above, AS 22.07.020(c) states that this court has jurisdiction over "the final decision of the district court on a sentence imposed by it if the sentence exceeds 120 days of unsuspended incarceration for a misdemeanor offense." And AS 12.55.120(2) grants defendants the right to appeal "[al sentence of imprisonment exceeding 120 days for a misdemeanor offense ... on the ground that the sentence is excessive." The plain language of these statutes appears to limit our jurisdiction to challenges to terms of imprisonment that exceed 120 days for a misdemeanor offense.

However, as in Richardson, we have not found any legislative discussion of sentence appeals that do not concern terms of imprisonment, either in 1980 when this court was created or in 1995 when the legislature amended AS 12.55.120 and AS 22.07.020 to limit misdemeanor sentence appeals to terms of imprisonment exceeding 120 days.²⁷ The transmittal letter from the governor for the 1995 legislation did not mention sentence appeals involving claims other than challenges to the term of imprisonment:

[The sections amending AS 12.55.120 and AS 22.07.020] restrict defendants convicted of misdemeanors from appealing as excessive a sentence of 120 days or less.[²⁸]

The committee discussions were likewise limited to sentence appeals involving terms of imprisonment.²⁹ We presume the legislature was aware of the inconsistency of our prior decisions when it debated the 1995 amendments, and we do not believe it would have been silent on sentence appeals challenging probation conditions, fines, forfeitures, and license revocation, if it had intended to eliminate our jurisdiction over those appeals in all cases involving sentences of 120 days or less.

In the absence of an affirmative indication from the legislature, we do not believe the legislature intended to allow a defendant with a 121-day sentence to appeal a potentially onerous penalty (such as a 20-year revocation of a driver's license) to this court but to limit a defendant with a 120-day sentence to discretionary review by the supreme court on the same claim.³⁰ And, as we reasoned in Richardson, having this court decide a claim that a probation condition is illegal while leaving to the supreme court discretionary review over whether the same probation condition was an abuse of disceretion would result in unnecessary administrative difficulties.³¹

For this reason, we find that AS 22.07.020(c) grants us jurisdiction over all sentence appeals from a district court except for those that challenge as excessive a term of imprisonment of 120 days or less. Any holding to the contrary is hereby overruled.³²

Why we find the court did not abuse its discretion by imposing the probation condition

Allen argues that the court abused its discretion by forbidding her from possessing any animals other than her son's dog during her 10-year term of probation. We review the court's imposition of a probation condition for abuse of discretion.³³

We have consistently upheld conditions of probation restricting the defendant from engaging in the activity that formed the basis for the underlying conviction.³⁴ And, although we have not directly resolved a challenge to a probation condition imposing limits on the possession of animals, we have held that it was not facially unreasonable to restrict a defendant who was convicted of cruelty to animals from owning more than one animal and from owning a horse.³⁵

Here, the court found that the animals suffered horribly, that this was a worst offense, and that Allen had a history of eruelty to animals. Given these facts, prohibiting Allen from possessing animals during the term of her probation was reasonably related to her rehabilitation and to protecting the public and was not unduly restrictive of her liberty.³⁶ The district court was therefore justified in imposing the probation condition.

Allen's main complaint is that the court did not mention these factors when it discussed the probation condition. Instead, the court noted the lack of animal control probation supervisors and the "practical realities" of supervising Allen's possession of animals. However, it appears from the record that the court considered rehabilitation, protection of the public, and the reasonableness of restrictions on Allen's liberty along with the practical realities of enforeing the probation condition. The court simply did not repeat these findings when it discussed the probation condition and explained why monitoring Allen's possession of animals was not feasible.

We conclude that the court did not abuse its discretion by prohibiting Allen from possessing animals, other than her son's dog, while on probation.

Conclusion

Allen's sentence is AFFIRMED.

1 . Anchorage Municipal Code (AMC) § 8.55.010.-A2, AMC § 8.55.010.A.3, and AMC § 8.30.080.-A.1, respectively.

2 . Hillman v. Anchorage, 941 P.2d 211, 212-13 (Alaska App.1997).

3 . See id.; State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). See also AS 12.55.005 {codifying the Chaney sentencing criteria).

4 . Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App.1997) (discussing the type of sentence appeal authorized by AS 12.55.120); see also Richardson v. State, 47 P.3d 660, 663 (Alaska App.2002) (observing that AS 22.07.020(c) incorporates the limitation on sentence appeals in AS 12.55.120(a)).

5 . Wharton v. State, 590 P.2d 427, 429 (Alaska 1979); Gilligan v. State, 560 P.2d 17, 18 n. 2 (Alaska 1977).

6 . See AS 22.07.010.

7 . Richardson, 47 P.3d at 663 (citing Hillman, 941 P.2d at 215).

8 . 47 P.3d 660.

9 . Id. at 662-64.

10 . Id. at 663.

11 . Id. at 661-62.

¹²

13 . Id. at 664.

14 . Id.

15 . 829 P.2d 842 (Alaska App.1992).

16 . Id. at 845; Bingaman v. Anchorage, Alaska App. Memorandum Opinion and Judgment No. 4179 at 2, n. 2 (Feb. 2, 2000), 2000 WL 124801 at *1, n. 2; Jerrel v. State, Alaska App. Memorandum Opinion and Judgment No. 2533 at 14 (Nov. 4, 1992), 1992 WL 12153274 at *7.

17 . See, eg., Jordan v. State, 681 P.2d 346, 350 (Alaska App.1984) (considering an excessive sentence claim involving the forfeiture of an airplane although Jordan did not receive any unsus-pended incarceration); Perez v. State, Alaska App. Memorandum Opinion and Judgment No. 2486 at 8 (Aug. 12, 1992), 1992 WL 12153294 at *3 (considering an excessive senterice claim involving a $1000 fine with $500 suspended, 150 hours of community work service, and 180 days with 165 days suspended although Perez only received 15 days of unsuspended incarceration); Kuznicki v. Anchorage, Alaska App. Memorandum Opinion and Judgment No. 2191 at 1-4 (April 10, 1991), 1991 WL 11650698 at *1 (considering an excessive sentence claim although Kuznicki was only sentenced to 15 days of unsus-pended incarceration); Kelley v. State, Alaska App. Memorandum Opinion and Judgment No. 2102 at 6-7 (Oct. 3, 1990), 1990 WL 10509548 at *3 (considering a claim that a fine was excessive although Kelley was not sentenced to any imprisonment); Andrews v. State, Alaska App. Memorandum Opinion and Judgment No. 1697 at 1-2 (Nov. 9, 1988), 1988 WL 1513112 at *1 (considering an excessive sentence claim although Andrews was only sentenced to 6 days of unsus-pended incarceration).

18 . 681 P.2d 346.

19 . Id. at 350.

20 . Alaska App. Memorandum Opinion and Judgment No. 2102, 1990 WL 10509548.

21 . Id. at 6-7, 1990 WL 10509548 at *3.

22 . Id. at 8, 1990 WL 10509548 at *3.

23 . 51 P.3d 962 (Alaska App.2002).

24 . Id. at 966-67.

25 . Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 530-31 (Alaska 1993)).

26 . Mack v. State, 900 P.2d 1202, 1205 (Alaska App.1995) (quoting Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.1981)).

27 . See Richardson, 47 P.3d at 664.

28 . See February 27, 1995, Transmittal Letter for H.B. 201, 1995 House Journal 490.

29 . See Committee Minutes, House State Affairs Committee (March 18, 1995), House Judiciary Committee (March 27, 1995), and House Finance Committee (April 12, 1995) (testimony of Lauri Otto, Deputy Attorney General, Criminal Division, Department of Law, on H.B. 201).

30 . See Alaska R.App. P. 215(a)(5).

31 . See 47 P.3d at 664.

32 . See Haggren, 829 P.2d at 845; Bingaman, Alaska App. Memorandum Opinion and Judgment No. 4179 at 2 n. 2, 2000 WL 124801 at *1 n. 2; Jerrel, Alaska App. Memorandum Opinion and Judgment No. 2533 at 14, 1992 WL 12153274 at *7.

33 . Parks v. State, 571 P.2d 1003, 1005 (Alaska 1977); Sweetin v. State, 744 P.2d 424, 427 (Alaska App.1987). .

34 . See Baum v. State, 24 P.3d 577, 581 (Alaska App.2001) (affirming probation condition that restricted defendant, who was convicted of unlawfully taking game, from applying for a hunting or guiding license for ten years); Allain v. State, 810 P.2d 1019, 1022-23 (Alaska App.1991) (affirming probation condition that restricted defendant, who was convicted of sexual abuse of a minor, from having unsupervised contact with minors under sixteen years of age); Tiedeman v. State, 576 P.2d 114, 116 (Alaska 1978) (affirming probation condition that restricted defendant from appearing drunk in public when alcohol was an important contributing factor to his criminal behavior).

35 . Mahan, 51 P.3d at 966 (claim waived due to inadequate briefing).

36 . See Baum, 24 P.3d at 582; Nitz v. State, 745 P.2d 1379, 1381 (Alaska 1987); Tiedeman, 576 P.2d at 116.