Penetac v. Municipality of Anchorage, 011119 AKCA, A-12804

Docket Nº:A-12804
Opinion Judge:ALLARD JUDGE
Party Name:ERIC SCOTT PENETAC, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Attorney:Shaul L. Goldberg, Denali Law Group, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and William D. Falsey, Municipal Attorney, Anchorage, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
Case Date:January 11, 2019
Court:Court of Appeals of Alaska
 
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ERIC SCOTT PENETAC, Appellant,

v.

MUNICIPALITY OF ANCHORAGE, Appellee.

No. A-12804

Court of Appeals of Alaska

January 11, 2019

Appeal from the District Court, No. 3AN-16-4699 CR Third Judicial District, Anchorage, Douglas Kossler, Judge.

Shaul L. Goldberg, Denali Law Group, Anchorage, for the Appellant.

Sarah E. Stanley, Assistant Municipal Prosecutor, and William D. Falsey, Municipal Attorney, Anchorage, for the Appellee.

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

OPINION

ALLARD JUDGE

Following a jury trial, Eric Scott Penetac was found guilty of two counts of child neglect under the Anchorage Municipal Code (AMC).1 The two counts were merged at sentencing, for a single municipal class A misdemeanor conviction. Penetac was subsequently sentenced to 365 days in jail with 290 days suspended (75 days to serve).

On appeal, Penetac argues that his sentence is illegal because it exceeds the 30-day presumptive maximum sentence that he would likely have faced if he had been convicted of a class A misdemeanor under state law. According to Penetac, the more lenient law that governs sentencing for state misdemeanors (specifically, AS 12.55.135) preempts any inconsistent municipal sentencing law. Penetac also argues that the Municipality's own code (specifically, AMC 08.05.020.E) provides that all sentencing under the municipal code is governed by AS 12.55. Lastly, Penetac argues that failure to apply the state sentencing scheme to municipal offenders violates the Equal Protection Clause of the Alaska Constitution.2

For the reasons explained here, we reject these arguments and affirm Penetac's sentence.

Why we conclude that AS 12.55.135 does not control Penetac's sentencing

Penetac was convicted of child neglect under the Anchorage Municipal Code. The municipal code classifies child neglect as a class A misdemeanor, 3 and the code authorizes sentences of up to one year in jail for all municipal class A misdemeanors.4 In contrast, AS 12.5 5.13 5, the Alaska statute setting out the permissible sentences for state misdemeanors, limits sentences for most state class A misdemeanors to 30 days unless certain circumstances (not present here) are demonstrated.5

On appeal, Penetac argues that, in light of this difference between the state sentencing provision and the municipal code, the district court was required to sentence him under the more lenient state sentencing law.

Penetac's argument is based on a misunderstanding of the interaction between municipal codes and state law under the Alaska Constitution's "home rule" provision.6 As a home rule city, Anchorage is granted relatively broad powers; the state constitution declares that "[a] home rule borough or city may exercise all legislative powers not prohibited by law or by charter."7

When a home rule municipal ordinance is challenged as invalid under state law, we apply the test set out by the Alaska Supreme Court more than forty years ago in Jefferson v. State:

A municipal ordinance is not necessarily invalid in Alaska because it is inconsistent or in conflict with a state statute. The question rests on whether the exercise of authority has been prohibited to municipalities. The prohibition must be either by express terms or by implication such as where the statute and ordinance are so substantially irreconcilable that one cannot be given its substantive effect if the other is to be accorded the weight of law.8

Thus, the fact that the penalties for offenses designated "class A misdemeanors" under the municipal code may...

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