Opinion
Court of Appeals Nos. A-8631 / 9541.
March 21, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell and Niesje J. Steinkruger, Judges, Trial Court No. 4FA-02-4211 CR.
Geoffry Wildridge, Assistant Public Defender, Fairbanks, Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Matthew Allen Cloyd of one count of felony stalking in the first degree and thirteen counts of violating a protective order. Superior Court Judge Richard D. Savell sentenced Cloyd to a composite sentence of 8 years with 3½ years suspended. Cloyd argues on appeal that this sentence is excessive.
AS 11.41.260(a)(1), and/or (2), and/or (5), and/or (6).
AS 11.56.740(a).
Cloyd also filed a motion in the superior court, under Alaska Criminal Rule 35(a), arguing that his sentence was illegal based upon the United States Supreme Court's decision in Blakely v. Washington. In Blakely, the United States Supreme Court held that the Sixth Amendment guarantees a defendant the right to have a jury determine beyond a reasonable doubt any disputed factual issue, other than a prior conviction, which increases the defendant's potential maximum sentence. In his motion, Cloyd claimed that the superior court violated Blakely by increasing the maximum sentence that he could have received on his stalking conviction based upon Judge Savell finding aggravating factors instead of submitting those aggravating factors to a jury. Superior Court Judge Niesje J. Steinkruger denied Cloyd's Criminal Rule 35(a) motion. Cloyd appeals this decision. We affirm Cloyd's sentence on both grounds.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Factual and procedural background
Cloyd's convictions resulted from a series of incidents that occurred between June and November 2002 where Cloyd followed, harassed, and threatened his wife, W.C. The source of Cloyd's discontent apparently stemmed from W.C.'s efforts to end her nine-year marriage to Cloyd.
Stalking in the first degree is a class C felony. Under the pre-2005 sentencing provisions, the maximum sentence for a class C felony was 5 years of imprisonment. Because Cloyd was a second felony offender for purposes of presumptive sentencing, he faced a presumptive term of 2 years of imprisonment. Judge Savell could not have exceeded this 2-year presumptive sentence unless he found aggravating factors. At the sentencing hearing, Judge Savell found four aggravating factors by clear and convincing evidence: AS 12.55.155(c)(8), (c)(18)(A), (c)(18)(C), and (c)(21). Once Judge Savell found any one aggravating factor, he was authorized to impose up to the 5-year statutory maximum on the stalking conviction. After finding all four aggravating factors, Judge Savell imposed an aggravated presumptive sentence of 5 years with 2 years suspended on the stalking conviction.
AS 11.41.260(c).
Former AS 12.55.125(e).
Former AS 12.55.125(e)(1).
Former AS 12.55.125(e).
AS 12.55.155(c)(8) ("the defendant's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior"); AS 12.55.155(c)(18)(A) ("the offense was a felony specified in AS 11.41 and was committed against a spouse, a former spouse, or a member of the social unit comprised of those living together in the same dwelling unit as the defendant"); AS 12.55.155(c)(18)(C) ("the offense was a felony specified in AS 11.41 that is a crime involving domestic violence and was committed in the physical presence or hearing of a child under 16 years of age who was, at the time of the offense, living within the residence of the victim, the residence of the perpetrator, or the residence where the crime involving domestic violence occurred"); AS 12.55.155(c)(21) ("the defendant has a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section").
Former AS 12.55.155(a)(1).
In his Criminal Rule 35(a) motion, Cloyd argued that Judge Savell violated the Blakely decision when he failed to submit the aggravating factors to a jury. He argued, absent a jury finding on these factors, the maximum sentence which Judge Savell was authorized to impose was the 2-year presumptive term. Judge Steinkruger denied Cloyd's Criminal Rule 35(a) motion, finding that the aggravators which Judge Savell found were either Blakely-compliant or that Judge Savell's finding of the aggravating factors was harmless error because the evidence supporting the aggravating factors was overwhelming and uncontested.
Why we uphold Judge Steinkruger's decision denying Cloyd's Criminal Rule 35(a) motion
In his appeal, Cloyd argues that his sentence for stalking in the first degree is illegal under Blakely to the extent that it exceeds the 2-year presumptive term. But, as we have pointed out, the former sentencing provisions permitted the sentencing judge to impose up to the maximum 5-year sentence if the State proved one or more aggravating factors. Therefore, in Cleveland v. State, we held that a sentencing court could, consistent with Blakely, impose up to the maximum sentence if the court found even one Blakely-compliant aggravating factor.
Former AS 12.55.155(a)(1).
143 P.3d 977 (Alaska App. 2006).
Id. at 984.
The United States Supreme Court has held that Blakely errors are not structural errors and are therefore subject to harmless error analysis. This is consistent with the analysis which we have previously applied to Blakely violations. We therefore conclude that, under both state and federal law, a claim of Blakely error is subject to harmless error analysis.
Washington v. Recuenco, ___ U.S. ___, ___, 126 S. Ct. 2546, 2553, 165 L. Ed. 2d 466 (2006).
Haag v. State, 117 P.3d 775, 784-85 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 16-17 (Alaska App. 2005); Ned v. State, 119 P.3d 438, 443-44 (Alaska App. 2005).
Judge Savell found one of the aggravators that applied to Cloyd's sentence was that "the offense was a felony specified in AS 11.41 and was committed against a spouse, a former spouse, or a member of the social unit comprised of those living together in the same dwelling as the defendant." In Milligrock v. State, under similar circumstances, we found that where the evidence was undisputed that Milligrock lived in the same household as his victim, there was "no reasonable possibility that a jury would have found in Milligrock's favor on this issue." We therefore concluded that the procedural error of not submitting this aggravator to a jury was harmless beyond a reasonable doubt. We reach a similar conclusion in Cloyd's case. It was undisputed in the trial court (and Cloyd has not disputed on appeal) that the victim, W.C., was Cloyd's spouse.
AS 12.55.155(c)(18)(A).
118 P.3d 11 (Alaska App. 2005).
Id. at 17.
Cloyd argues that the State was required to present the aggravating factors to a grand jury before those aggravating factors could be used by the trial court. But we recently rejected this contention in State v. Dague.
143 P.3d 988, 1003-04 (Alaska App. 2006).
Cloyd also contends that Judge Savell was required to obtain his personal waiver of his right to a jury trial under Blakely. But we recently held that the failure of a sentencing judge to obtain a Blakely waiver directly from the defendant did not constitute plain error.
Cooper v. State, ___ P.3d ___, ___, Alaska App. Opinion No. 2087 (Mar. 9, 2007), 2007 WL ___ at * ___; Woodbury v. State, ___ P.3d ___, ___, Alaska App. Opinion No. 5153 (Jan. 26, 2007), 2007 WL 196003 at*2.
We therefore reject Cloyd's contention that the sentence which Judge Savell imposed was in violation of Blakely, because at least one aggravator was, and remains, undisputed. We therefore affirm Judge Steinkruger's decision dismissing Cloyd's Criminal Rule 35(a) motion.
Why we reject Cloyd's contention that his sentence is excessive
Cloyd contends that his composite sentence of 4½ years to serve, with an additional 3½ years suspended, was excessive. But Judge Savell found that Cloyd was a person who had "demonstrated himself to be undeterrable and beyond rehabilitation." Although he did not need to make the finding in order to impose the sentence which he did, Judge Savell also found that Cloyd was a "worst offender."
Cloyd's conviction for felony stalking was his second stalking conviction. In addition to this second stalking conviction, Cloyd stood convicted of thirteen instances of violating a protective order. Judge Savell pointed out that in addition to these offenses, Cloyd had numerous prior convictions for driving while his license was suspended and that Cloyd had demonstrated a consistent disregard for the law. In addition, Cloyd had an extensive prior record of assaults against his wife, had several probation violations, and had consistently violated domestic violence protective orders. Judge Savell concluded that Cloyd was the "most irrational, resistent, intransigent, intractable, focused domestic violence protective order violator [he had] ever encountered." All of Judge Savell's conclusions are amply supported by the record. Under these circumstances, we conclude that the sentence which Judge Savell imposed is not clearly mistaken. Conclusion
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.