Opinion
Court of Appeals No. A-9527.
May 16, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge., Trial Court No. 3AN-01-10599 Cr.
Appearances: Linda K. Wilson, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Glen D. David appeals the superior court's refusal to modify his sentence under Alaska Criminal Rule 35(a). He contends that he was sentenced in violation of his Sixth Amendment right to jury trial as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and in violation of a purported parallel right to jury trial under the Alaska Constitution. For the reasons explained here, we affirm the superior court's decision.
In December 2001, David was charged with felony DUI and driving with a revoked license. At the time, David had five prior convictions for DUI, and he was on felony probation from a prior burglary conviction.
Several months later, David reached a plea agreement with the State: he pleaded guilty to these charges, and the State agreed that David could enter the therapeutic court program. That is, David was not immediately sentenced; rather, he was placed on probation pending the outcome of his participation in the therapeutic program.
Two months after David entered the therapeutic program, he absconded. As a result, David was terminated from the program, and he was brought before the superior court for sentencing (and for a probation revocation hearing in his prior burglary case).
Felony DUI is a class C felony. As a second felony offender, David faced a presumptive term of 2 years' imprisonment.
AS 28.35.030(n).
Former AS 12.55.125(e)(1) (pre-March 2005 version).
The State proposed two aggravating factors under AS 12.55.155(c): (c)(20) — that David was on felony probation (from the prior burglary conviction) at the time of his present offense; and (c)(21) — that David had a history of repeated criminal conduct similar to his present offense ( i.e., his five prior DUI convictions). At the sentencing hearing, David's attorney conceded both of these aggravators.
Based on these aggravators, Superior Court Judge Michael L. Wolverton increased David's sentence by adding 3 suspended years of imprisonment to the specified 2-year presumptive term. That is, Judge Wolverton sentenced David to 5 years with 3 years suspended.
David served his prison term and was released on probation in June 2004. Two days later, David absconded — prompting the State to file a petition to revoke his probation. When David was brought back to court in September 2004, he refused further probation. Judge Wolverton then imposed all of David's previously suspended jail time.
One year later, David filed a motion under Alaska Criminal Rule 35(a), claiming that his sentence was illegal under Blakely because the two aggravating factors had not been submitted to a jury. Judge Wolverton denied this motion, and David now appeals.
Because David did not raise a contemporary objection to his sentencing proceedings, he must now show that any Blakely violation constituted plain error. In David's case, there does not appear to be any Blakely error at all, because at least one of the State's aggravating factors was Blakely-compliant.
Woodbury v. State, 151 P.3d 528, 530-31 (Alaska App. 2007); Tyler v. State, 133 P.3d 686, 688 (Alaska App. 2006); Haag v. State, 117 P.3d 775, 783 (Alaska App. 2005); Paige v. State, 115 P.3d 1244, 1248 (Alaska App. 2005).
The State based its proof of aggravator (c)(21) — repeated criminal conduct similar to the present offense — on the fact that David had five prior convictions for DUI. Even now, David does not dispute that he had five prior convictions for DUI when he committed his current offense. And, as a matter of law, these five prior DUIs are "similar" to his current offense.
Although Blakely declares that a defendant generally has a right to jury trial on all issues of fact which, if resolved in favor of the government, will subject the defendant to a higher maximum sentence, Blakely makes an exception for aggravating factors that are based on a defendant's prior convictions. We have repeatedly held that, because of the Blakely exception for prior convictions, a sentencing judge need not submit an aggravating factor to a jury if the State's proof of that aggravating factor rests on the defendant's undisputed prior convictions. That is the case here with respect to aggravator (c)(21).
Blakely v. Washington, 542 U.S. at 301, 124 S.Ct. at 2536.
Lockuk v. State, 153 P.3d 1012, 1015 (Alaska App. 2007); Tyler v. State, 133 P.3d 686, 689 (Alaska App. 2006); State v. Avery, 130 P.3d 959, 962-63 (Alaska App. 2006); Grohs v. State, 118 P.3d 1080, 1083-84 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 15-16 (Alaska App. 2005).
The State argues that its second aggravator, (c)(20) (present offense committed while the defendant was on felony probation or parole), also falls within the Blakely exception for prior convictions. We need not decide that question — because we have just concluded that aggravator (c)(21) is Blakely-compliant, and because, under Alaska's pre-March 2005 sentencing law, the proof of any single aggravating factor was sufficient to satisfy Blakely. See Cleveland v. State, 143 P.3d 977, 988 (Alaska App. 2006).
David argues that, based on recent decisions of the United States Supreme Court, it appears that the Court may be preparing to abrogate Blakely's exception for prior convictions. He therefore asks us to decide his case as if the Supreme Court had already taken this action. But as we explained in Tyler v. State, 133 P.3d 686, 689-690 (Alaska App. 2006), it would be improper for us to deviate from federal law as it currently exists. We must continue to apply the "prior conviction" exception until such time as the Supreme Court sees fit to alter or abolish it.
For these reasons, we conclude that David's sentencing complied with Blakely.
But even assuming that David's sentencing deviated from Blakely, David would still be obliged to show plain error. Here, David does not dispute his five prior convictions for DUI, nor does he dispute the fact that he was on felony probation (from the burglary conviction) when he committed his present offense. We have repeatedly held that a Blakely error is harmless if the facts underlying the proposed aggravator are not in dispute — in other words, if there is no reasonable possibility that a jury would have decided the issue in the defendant's favor.
See, e.g., Smart v. State, 146 P.3d 15, 39 (Alaska App. 2006); Tyler v. State, 133 P.3d 686, 689 (Alaska App. 2006); Snelling v. State, 123 P.3d 1096, 1099 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005).
The United States Supreme Court recently confirmed that Blakely errors are to be analyzed in this way — i.e., under the "harmless error" analysis that applies to other constitutional errors. Washington v. Recuenco, __ U.S. __, 126 S.Ct. 2546, 2553; 165 L.Ed.2d 466 (2006). Accordingly, David has not shown plain error.
David raises other arguments as well. He first contends that, under Alaska law, aggravating factors are elements of the offense — that these elements must be presented to the grand jury, incorporated in the indictment, and proved at trial. We rejected these arguments in State v. Dague, 143 P.3d 988 (Alaska App. 2006).
David further argues that Alaska law independently guarantees a right to jury trial similar to the Sixth Amendment right recognized in Blakely, except that the Alaska right to jury trial has no exception for a defendant's prior convictions. We recently rejected this argument in Active v. State, 153 P.3d 355, 366-67 (Alaska App. 2007), and in Lockuk v. State, 153 P.3d 1012, 1017 (Alaska App. 2007).
David also argues that Judge Wolverton committed error by accepting the defense attorney's concession of the two aggravating factors. David asserts that the concession of these aggravators was, in effect, a waiver of David's right to jury trial — and therefore, he asserts, Judge Wolverton was obliged to address David directly (rather than through his attorney) and obtain David's personal concession of these aggravators.
Courts from around the country are divided on this issue. Because of this split in the case law, we recently held that a sentencing judge does not commit plain error when the judge relies on a defense attorney's concession of aggravating factors (rather than demanding a personal waiver from the defendant). See Cooper v. State, 153 P.3d 371, 372-73 (Alaska App. 2007); Lockuk v. State, 153 P.3d 1012, 1016 (Alaska App. 2007).
For all of these reasons, the decision of the superior court is AFFIRMED.