¶1dissenting.
¶2I dissent from the court’s treatment of this appeal. The court’s opinion reverses the superior court on the ground that the court failed to follow the procedural safeguards outlined in Johansen v. State, 491 P.2d 759 (Alaska 1971). This issue, however, was not raised by either party at the superior court level or on appeal.
¶3In a footnote, the court remarks that the “memoranda of respective counsel submitted in this appeal were of little assistance to the court.” 663 P.2d at 952 n. 8.
¶4The court’s opinion justifies deciding an issue not raised by invoking the “plain error” rule. In a civil proceeding, “Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted.” Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). Regardless of whether this test or the plain error test applied in criminal proceedings is *953applicable in this case,
¶5It is unclear whether the sanction imposed was criminal or civil in nature. In her memorandum, Vera Diggs describes the following scenario:
After the sentencing and prior to the hour at which defendant had been ordered to report for the commencement of service of his sentence, his attorney contacted Judge Carlson to find out if there were any conditions under which the sentencing could be suspended. The Judge asked if it were possible for him to get any funds together. His attorney replied that he had only $600.00. The Judge then stated “get that $600.00 to the attorney for Mrs. Diggs and I will suspend the sentence.” Mr. Diggs refused to surrender the $600.00 and his attorney admitted in open court that he held onto the $600.00 to use for the appeal ....
¶6Derrick Diggs does not deny that he chose to go to jail rather than pay Vera $600.00. Although the sentence was for a fixed term and therefore appears to be punitive, it can also be seen as coercive in that Derrick could have avoided going to jail and presumably would have been released from jail whenever he chose to pay the $600.00. Viewed from the latter perspective, the Jo-hansen safeguards are unnecessary. Accordingly, although the superior court should have made clear which sanction it was imposing, I do not believe that its error created a high risk of injustice or was obviously prejudicial. Therefore, I would affirm.
¶7. Derrick and Vera Diggs filed “memoranda” rather than “briefs” because the relief sought by Derrick from the superior court’s order was a sentence appeal, which he filed with the court of appeals. In accordance with Appellate Rule 215(h), the appellant and appellee are required to file memoranda, rather than briefs.
¶8. The court’s opinion characterizes Digg’s contempt proceeding as “civil in nature,” 663 P.2d at 951, and as a “criminal proceeding,” 663 P.2d at 952 n. 8.