*1 filing application post-conviction petence counsel, an for relief of his trial and we RE- passed, only poten has defendant's MAND superior the case to the court for tially sentencing meritorious claims are proceedings further on application. his Be- claims choose to raise a non-meritori issue, cause of our resolution of this we do challenge ous to the defendant's conviction Geisinger's not address superi- claim that the opportuni rather than forfeit the defendant's or court's dismissal of his claims violated his ty pursue application post-convie for an right process. to due juris- We do not retain relief, legisla tion We think it clear that the diction. encourage ture did not intend to this unnecessary litigation.20 also can We discern allowing
no rational basis for a defendant challenges appeal
who a sentence on direct application
unlimited time to file an post- for raising any
convictionrelief challenge author statutes, post-conviction
ized relief requiring appealed
while a defendant who his
conviction application to file the within a
specific deadline. interpretation more reasonable of AS
12.72.020(a)(8)(A) legislature is that the used
the term distinguish "conviction" not sentence,
conviction from a distinguish but to Tyrone MORRIS, Appellant, probation a conviction from a revocation or administrative decision. The statute sets out different filing deadlines for application Alaska, Appellee. STATE of post-conviction
for relief challenging a conv iction,21 a revocation probation,22 or an No. A-11178. administrative decision of the Board of Pa role or Department of Corrections.23 We Appeals Court of of Alaska. legislature conclude that intended the Sept.26, statute of limitations in each instance to en compass post-conviction relief challenge to conviction, revocation,
both decision, or any penalty
and to imposed. 12.72.020(a)(B)(A)
Interpreting AS manner, appeals a defendant who sentence, both,
conviction or year has one
from the date the decision is final
to file an application post-conviction re
lief. Geisinger's Because post-convictionre application
lief was filed approximately seven
months after our decision of his sentence final,
appeal became timely. it was
Conclusion
We REVERSE the superior court's order
dismissing Geisinger's challenge to the com- 12.72.020(a)(3)(A). 12.72.020(a)(4). 21. AS 23. AS 12.72.020(a)(3)(B). 22. AS *2 Reineke,
David D. under contract with the Agency, Quinlan Alaska Public Defender Steiner, Defender, Anchorage, Public for the Appellant. Chleborad, Attorney
Terisia Assistant General, Special Office of Prosecutions and Appeals, Anchorage, and Michael C. Ger- General, Juneau, aghty, Attorney Ap- for the pellee. MANNHEIMER, Judge,
Before: Chief ALLARD, HANLEY, Judge, and District Judge.* Court * 24(d). Sitting by assignment pursuant made to article Rule Administrative IV, section 16 of the Alaska Constitution and pertinent
OPINION who are aware of the facts. reject We therefore Morris's contention that Judge ALLARD. the term "market value" has no ascertainable legal meaning. Tyrone Morris was convicted of see- ond-degree theft after he stole Canada Additionally, involving in cases the theft of Anchorage. outfitter in from an *3 merchandise, general retail rule is that the law in effect at the time of Mor Under prima of an item is facie offense, person a committed second-de ris's Here, evidence of its market value. theft, felony, person if the gree a class C State evidence that the retail $25,000.1 valued at property stole $500 range parka of the was from $660 (if This means that the State's evidence argues Morris there was insufficient lieved) legally prove was sufficient to second- Although support evidence to his conviction. theft,. degree We therefore affirm Morris's he characterizes his claim as an attack on the conviction. sufficiency present of the evidence State trial, dispute legal ed at his real concerns the separately appeals 2-year Morris sen his definition the crime of of recognizes, tence as excessive. As Morris we Specifically, theft.2 jurisdiction do not have to hear this claim.5 purposes determining degree of of theft portion We therefore forward this of Morris's committed, he the "market value" of the Supreme to the Alaska Court under property proper stolen must be based on the 215(k). Appellate Rule ty's price, price. not its retail only guilty Morris asserts that he was procedural background Factual and theft, misdemeanor, third-degree because parka of the stolen February On a man walked into only $330.3 Anchorage wearing 6th Avenue Outfitters in parka-the a black Canada Goose Resolute Resolving hinges Morris's claim parka same by carried the outfitter. proper interpretation of AS employee An directed the man to the men's 11,46.980(a), the statute that defines the "val side of the store where the man tried on one property ue" of stolen as "the market value parkas or more and then left the store. place of the property at the time and of the later, employee About fifteen minutes a store crime." parka lying found a used Canada Goose explain opinion, As we in this appeared the term the floor that to be identical to the recognized meaning has parka "market value" Employees worn the man. then property common law: at which the empty space discovered an in the rack hold- change length ing hands an arm's trans- parkas the Canada Goose and concluded willing action between a seller and a that a used had been switched for a 11.46.130(a)(1) (2012); 11.46.140(a)(1) (2012) (defining Former AS 3. See former AS 11.46.980(a) (defining property the "value" of third-degree property theft as the theft of value"). Legisla- its "market the Alaska $50 services valued at or more but less than ture amended AS 11.46.130 to define second- $500). degree property theft as the theft of valued be- $25,000. $750 § tween Ch. SLA 11.46.980(a), 4. Under AS if the market value provision July 2014. This went into effect on ascertained, cannot be value reasonably apply retroactively. 2014 and does not Ch. property interpreted the stolen as the cost of §§ 36, 42, SLA 2014. replacement property within a reasonable time after the crime. Judge 2. See Chief concurrence, Mannheimer's (explaining the difference between these infra claims); types appellate see also Collins v. 22.07.020(b); R.App. 5. See AS Alaska P. (Alaska App.1999) 215(a)(1). (Mannheimer, J., (same). concurring)
1247] value of property theft of with a $500 They the used searched new one. 11.46.980(a) $25,000. further Alaska Statute name of Quest card in the Alaska found an provides: T. Morris. necessary to determine the Whenever it is later, employee of the a week About property Chapter [under value of 46-Of- had switched man who spotted the outfitter Against Property], that value is the fenses manager and anoth- general parka. The property market value of the at the time arrest of a citizen's employee conducted er place of the crime unless otherwise man, as Morris. was later identified who or, specified if the market value cannot Canada wearing a new black ascertained, reasonably the cost of re- at the time of Resolute placement within a reason- arrest. the crime. able time after manager of 6th Ave- general At The term "market value" is not further de- *4 15, February testified that on nue Outfitters fined in the criminal code. selling the stolen the store was Canada Goose He stated that for $659.95. specific Morris contends that the lack of a sug- charged a wholesale of $330 statutory definition for "market value" makes $675, and that Canada gested a retail of that, ambiguous. term He the to its authorized retailers Goose did not want construed, ambiguity, the term should be "keystone," products for less than the sell its lenity, light in under the rule of the most essentially double the which is particular, to him. Morris ar- favorable price. gues property in item of that cases where an store, is stolen from a retail the "market investigator with the Public Defender An must, property value" of the as a matter of the Inter- Agency testified that she searched law, paid the be the wholesale retailer the of August net on acquire property, because that is the to found a web- allegedly by Morris and stolen possible property. lowest valuation of the parka for The State site $220.98. assertion with evidence countered this ambiguous But the doctrine that investigator had visited was the website the in penal statutes must be construed the de retailer of Canada Goose not an authorized only play comes if the fendant's favor into parkas low-priced and that ambiguous statute remains it has been after pre- The State also probably a counterfeit. statutory subjected recognized methods that Cabela's and Altitude sented evidence Where, here, construction.6 a statute em of Canada Sports, two authorized retailers ploys recognized a term that has a definition prices of parkas, advertised retail $789 law, legislature presumed common is parkas. for their $702 the term in its common-law to have used sense, legislative history demon unless the subsequently guilty found Morris The meaning was intende strates that some other fol- second-degree theft. This d.7 lowed. "fair market value" "Market value" or meaning legal "market value" legal mean is a term with a well-established earlier, ing AS law: it is "the amount at explained
As
former
at common
hands,
change
as which the
would
11.46.1830(a)(1)
defined
theft
6. De Nardov.
meaning); Young Embley, 143 P.3d
law
App.1991).
(Alaska 2006)
(noting
statutory
that when
ambiguous,
language
legislative history
are
States, 342 U.S.
7. Morissette v. United
Alaska courts look to the common law to discern
(1952)
(holding
L.Ed. 288
72 S.Ct.
statutes).
legislative
intent and interpret
statute, a word
where
no definition in a
there is
common
in
construed to have its
the statute is
buyer
willing
willing seller,
and a
tween
whether
the wholesale or retail market.
being
compulsion
buy
Rather,
neither
under
or sell
depends
"market value"
on a series
having knowledge
and both
of the relevant
doing
buying
of factors: who is
and who
facts."8 The Alaska courts have used this
doing
selling,
is
when the transaction
definition,
it,
slight
or a
variation of
in both
(%.e.,
place,
took
and in what market
a retail
jurisdictions
civiland criminal cases.9 Other
market).12
or a wholesale
matter,
general
agree
likewise
as a
price willing
"market value" means the
But in the context of retail merchants
pay
to a
seller in the
selling goods
consumers,
ordinary
open
at a
place.10
market
certain time and
weight
authority supports
the rule that an
prima
item's retail
evidence of
facie
Indeed,
Jury
the Alaska Criminal Pattern
its market value at the time of the theft.13
use a variant of this
Instructions
common law
The basis for this
explained by
rule was
pattern
definition of "market value" in the
New York
Appeals
Court of
in People v.
11.46.980(2).11
instruction for
And Mor
Irrizari.14
requested
ris himself
the trial court
(al
instruct
with this definition
[involy-
accept
To
value
a case
request).
the court denied his
though
ing larceny
department
from a
store]
ignore
would be to
the facts of economic
Thus, contrary
argument
to Morris's
very simply,
life. Stated
it is the retailer's
appeal, the term
recog-
"market value" has a
function in
economy
our
to move
nized
meaning.
*5
and,
the consuming public
process,
in the
the market
value of the
unques-
relationship
between anmitem's whole-
tionably
addition,
enhanced.
the retail-
price
sale and retail
and its "market value"
er expends money on various services in-
cluding advertising,
by
courts,
promoting, display
As the term is used
the
the
packaging
market
in
necessarily
value of an item is not
order to
the
increase the interest
price
same as the
at
public
which it was
offered for
and make it
more
to
sale,
price
or the
purchased,
at which it
When,
buy.
therefore,
a thief steals an
(6th ed.1990);
Dictionary
813,
8. See Black's Law
Campbell,
597
721
(Tenn.Crim.App.
S.W.2d
819
(2014)
Larceny §
see also 50
1986) ("market
Am.Jur.2d
45
value" has no invariable defini
("
value,'
'Fair
purposes
market
for the
of estab-
tion}.
lishing
grade
larceny,
the
of the offense of
is the
price
bring
the
will
when offered for
eg.,
See,
Irrizari,
182
361,
N.Y.S.2d
156
obliged
sale
a seller who desires but is not
Downing,
70-71;
N.E.2d at
16
Likewise,
there will be times when
MANNHEIMER,
Judge
concurring.
Chief
represents
the retail
of an item
MANNHEIMER,
Judge
concurring.
hope
reality
retailer more than the
Thus,
the market.17
a defendant
rebut
separately
supplement
I write
the lead
presumption
price of an
opinion
regard
with
to two issues.
represents
by offering
item
its market value
way
The first issue arises from the
willing buyers
"there are no
evidence that
appeal.
frames his claim on
As the lead
alleged price;
though
even
[or that]
opinion explains,
willing buyer
alleged price,
there is a
at the
phrase
ambiguous,
"market value" is
light
is unreasonable
of local
phrase
must therefore be
competitor's prices for the
or similar
same
him-i.e.,
interpretation most
items;
eustomarily
favorable
or ...
that the seller
sold
that "market value"
be construed
*6
price."
at a discounted
must
value".
"wholesale
might also
evidence that
defendant
introduce
a retailer's
have lost their market val
argument
describes
as a "suffi-
ue,
clothing
such as when
has sat on the shelf
ciency of the evidence" claim-but
it is not.
long period
gone
for a
of time and has
out of
underlying
Morris's
claim is that
the law
9
style.1
essentially
needs to
clarified. Morris is
misinstructed,
claiming
that his
Having rejected Morris's contention
instructed,
misleadingly
concerning
at least
that the term "market value" should be inter
the elements of
theft-be-
lenity
preted under the rule of
to mean the
jurors
were not instructed in accor-
cause
price,
we now turn to his actual
proposed interpretation
dance with Morris's
case,
legal insufficiency.
claim of
In Morris's
of "market value".
Id.,
70-71;
Hanes,
628;
Irrizari,
182 N.Y.S.2d
App.1999 refused. Identifying the correct characteriza- One therefore wonder whether Mor- granted ris should be a new trial in front of a argument important is tion of Morris's affirmatively that is cause, instructed on the if Morris's claim were a true "suffi- claim, ciency ruling then a of the evidence" meaning of "market value". For three rea- sons, trigger jeopardy Morris's favor would double I conclude that the answer is "no'". consequences: only it would result not First, legal meaning of "market value" judgement, reversal of the trial court's but greatly commonly does not differ from its against the case also dismissal of Morris. fact, meaning. understood the common- argument really simply
But Morris's about the law definition of "market value" is offense, everyday definition of the and not the suffi- more refined version of its mean this, instance, ciency ing. of the evidence. Because of even For New Webster's World Col agreed lege Dictionary if we had with Morris about the inter- defines value" as "market statute, pretation only price commodity Morris would "the expected that a can be bring have been entitled to a reversal of his convic- when sold in a market".1 tion, and the State would have been allowed Second, parties at Morris's both liti- re-try him. gated implicit this case assumption under the
I acknowledge parka's if we had ruled that that the "market value" was more or accurately determinative value of the was its less reflected its retail cost, then, given the evidence in the time of the theft. (in particular, case Morris's the uncontested presented The State evidence that Av- 6th par- evidencethat the wholesale value of the selling enue Outfitters was the Canada Goose $500), considerably ka was than less $660, parka for and that two other authorized hardly hoped State could successfully have retailers were the same prosecute felony Morris for theft. But we Morris, part, argue for his did not legal princi- must not let this fact obscure controlling, the wholesale nor did ple involved here: the distinction between a argue he "insufficiency true of the evidence" claim ver- misleading value, gauge was a of its market sus a claim that the verdict was based on an since the wholesale was so much lower. understanding erroneous of the law. Rather, competing evi- brings This me to the second issue: dence as to the retail price-specifically, evi- *7 sufficiency jury of the instructions in Mor- dence that parka the same (As ris's case. Internet opinion the lead ex- plains, the State rebutting evi- jury Morris's was instructed that the value dence that this Internet retailer was not an the stolen was its "market value" at dealer, parka being authorized and that the theft, the time place jury but the counterfeit.) probably sold at this any did not receive further instruction on the meaning of particular, finally, "market value". And Morris's defense to the theft jury apprised was not charge of the definition parka. we did not involve the value of the opinion, describe in this and which we con- During the State's summation at the end of today firm as the law of Alaska. prosecutor only briefly men- especially problematic Morris's case is tioned the value-arguing issue of without cause attorney actually asked the trial elaboration that the market value of the sto- judge give instruction on len was the at which 6th Avenue Edition,2004), p. (Fourth College Dictionary Webster's New World bility jury's verdict would have been that the day it for sale on Outfitters offered different. crime: $659.95. attorney disputed the mar- never
Morris's parka in his summa- value of the stolen
ket Instead, jury. the defense attor-
tion to the exclusively the assertion that
ney focused any theft at all-
Morris had not committed mistakenly been identified as
that he had Avenue who stole the from 6th
man
Outfitters. reasons, these I conclude that
For all of if had received a more
even Morris's legal meaning of
detailed instruction on the value", possi- is no reasonable
"market there