Bowen v. State
| Docket Number | A-13756 |
| Decision Date | 30 June 2023 |
| Parties | JAMES BUSTER BOWEN, Petitioner, v. STATE OF ALASKA, Respondent. |
| Court | Alaska Court of Appeals |
Petition for Review from the Superior Court, Third Judicial District, Trial Court No. 3KN-20-00771 CR Kenai, Jennifer K Wells, Judge.
David A. Case (petition) and George W.P. Madeira Jr. (briefing and argument), Assistant Public Defenders, and Samantha Cherot Public Defender, Anchorage, for the Petitioner.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General Juneau, for the Respondent.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Alaska Statute 11.71.050(a)(4) criminalizes the simple possession of most controlled substances. This offense is classified as fifth-degree misconduct involving a controlled substance, a class A misdemeanor. But the same conduct is classified under AS 11.71.040(a)(12) as fourth-degree misconduct involving a controlled substance - a class C felony - if, within the preceding ten years, the defendant was convicted "under AS 11.71.050(a)(4), or [an offense] with elements similar to AS 11.71.050(a)(4)."
In 2020, James Buster Bowen was indicted under this repeat offender provision for one count of possession of heroin and one count of possession of methamphetamine.[1] The State alleged that these offenses were class C felonies because, in 2013, Bowen was convicted of attempted fourth-degree misconduct involving a controlled substance (i.e., the attempted manufacture or delivery of, or attempted possession with intent to manufacture or deliver, a controlled substance).[2] According to the State, this offense has elements that are similar to the elements of fifth-degree misconduct involving a controlled substance under AS 11.71.050(a)(4) (), thus elevating Bowen's offenses to class C felonies.
Bowen moved to dismiss the counts in the indictment charging him with fourth-degree misconduct involving a controlled substance under the repeat offender provision. Relevant to this appeal, he argued that the elements of simple drug possession under AS 11.71.050(a)(4) and the elements of his prior offense are not similar, as required by AS 11.71.040(a)(12). The superior court denied this motion.
After unsuccessfully moving for reconsideration of the court's order, Bowen filed a petition for review with this Court. We granted the petition and ordered full briefing.[3] For the reasons explained in this opinion, we conclude that attempted fourth-degree misconduct involving a controlled substance (Bowen's prior offense) cannot serve as an enhancing conviction under AS 11.71.040(a)(12).
Why we conclude that the State cannot rely on attempted fourth-degree drug misconduct to satisfy the repeat offender provision of AS 11.71.040(a)(12)
Under AS 11.71.040(a)(12), a person is guilty of a class C felony if they possess any amount of certain controlled substances and, within the preceding ten years, have been convicted "of a crime under AS 11.71.050(a)(4), or a law or ordinance in this or another jurisdiction with elements similar to AS 11.71.050(a)(4)." The sole question presented by this petition is whether a conviction for attempted manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance satisfies the repeat offender provision of AS 11.71.040(a)(12).
This question is one of statutory interpretation that we review de novo.[4]"When we interpret a statute, we 'consider its language, its purpose, and its legislative history, in an attempt to give effect to the legislature's intent, with due regard for the meaning the statutory language conveys to others.'"[5]
We first address whether attempted fourth-degree misconduct involving a controlled substances has "elements similar" to fifth-degree misconduct involving a controlled substance, the specifically enumerated offense.
The statutory phrase "elements similar" (or variations of that phrase) is a term of art that has acquired a particular meaning through a series of judicial decisions.[6]The Alaska Supreme Court has explained that whether statutes have "similar" elements depends on whether their elements are "categorically alike with no significant differences."[7] Under this categorical approach, it is the elements that must be similar, not the specific facts underlying the defendant's prior conviction.[8] But this does not mean that the elements must be "identical."[9] Instead, elemental similarity is determined by referring to the "great majority of cases," and not by examining differences that "apply only to a narrow spectrum of unusual cases."[10]
Applying this analysis to the statutes at issue in this case leads to the conclusion that the completed offense of fourth-degree misconduct involving a controlled substance (i.e., manufacturing or delivering or possessing with intent to manufacture or deliver) has elements that are "similar" to the elements of simple drug possession under AS 11.71.050(a)(4). This is because it is virtually impossible for a person to commit the greater offense - manufacturing, delivering, or possessing with intent to manufacture or deliver - without also committing the lesser offense of simple possession. Both parties acknowledge, in fact, that simple drug possession is usually a lesser included offense of not only fourth-degree drug misconduct but also of many other felony drug offenses.
Building on this analysis, the State argues that we must reach a similar conclusion when comparing the elements of attempted fourth-degree drug misconduct with the elements of simple drug possession. Indeed, the State asserts that all attempted drug offenses must be deemed to have "elements similar" to their target crimes for purposes of the repeat offender provision set out in AS 11.71.040(a)(12).
But the elements of an attempt ordinarily do not overlap with the elements of the target crime. Although a crime of attempt implicates the underlying substantive statute, and an attempt cannot be charged without reference to the underlying crime, it is not necessary for the State to directly prove any of the elements of the target crime in order to convict a defendant of an attempt. Instead, to prove an attempt, the State must establish (1) that the defendant intended to commit the target crime and (2) that the defendant took a substantial step toward the commission of the target crime.[11]
We accordingly conclude that, under the categorical approach to determining elemental similarity, attempted drug misconduct crimes do not have elements similar to their target crimes. And in particular, comparing the elements of attempted fourth-degree controlled substances misconduct to fifth-degree controlled substances misconduct leads to the conclusion that the two crimes are not elementally similar.
Next, we examine the question of statutory interpretation and legislative intent - that is, did the legislature intend the statutory reference to fifth-degree misconduct involving a controlled substance (simple possession) to include the related attempt offense? If the answer to this question is "yes," then Bowen's prior conviction for attempted fourth-degree misconduct involving a controlled substance would also qualify as a predicate offense because it would have elements "similar" to attempted fifth-degree misconduct involving a controlled substance. (In other words, because attempted fourth- and fifth-degree controlled substance misconduct are both attempt crimes, to prove either offense the State must establish that the defendant intended to commit the target crime and took a substantial step toward commission of that crime.[12])
We begin with the plain language of the statute. Alaska Statute 11.71.040(a)(12) sets forth the completed crime of simple possession under AS 11.71.050(a)(4), and those other crimes that have "similar" elements, as predicate offenses, and does not expressly include attempts. Under the principle of expressio unius est exclusio alterius, where certain things are designated in a statute, all omissions should be understood as exclusions.[13] Indeed, in other Alaska felony enhancement statutes that are based on repeat offender provisions, the legislature expressly included attempts as predicate offenses.[14] Thus, the legislature's omission of any reference to attempted offenses in AS 11.71.040(a)(12) strongly indicates that it did not intend a prior conviction for an attempted drug offense to enhance simple drug possession to a felony.
This conclusion finds support in other jurisdictions. For example, California appellate courts have routinely held that "attempt" is a crime that is sharply distinct from the completed offense, and unless attempts are expressly included in a statute, they will not be considered as a predicate offense for purposes of sentence enhancement.[15] Similarly, the Supreme Court of Pennsylvania has concluded that attempted burglary is not a qualifying offense for purposes of a statute which prohibits an individual from possessing a firearm if they have been previously convicted of certain offenses, including burglary.[16] The court explained that the statute is "unambiguous" because "while burglary is on the [statute's] list of enumerated offenses, attempt is plainly not."[17] Likewise, the Minnesota Supreme Court has held listed crimes); AS 11.41.110(a)(5)(C) (). that a defendant's conviction solely for an attempt is not a violation of a statute defining the completed offense.[18]
But under Alaska's sliding scale approach, our analysis...
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