Opinion
Court of Appeals No. A-9812.
December 10, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-01-1078 Cr.
David P. Esmailka, pro se, Eloy, Arizona.
Kenneth M. Rosenstein, 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
David P. Esmailka appeals the superior court's denial of his motion to correct an illegal sentence under Criminal Rule 35(a). Because Esmailka's sentence is legal, we affirm the superior court's decision. Background facts and proceedings
On April 6, 2001, Esmailka shot Crispin Esmailka Jr. to death with a rifle. Esmailka was originally charged with first-degree murder, but the parties reached a plea agreement. In exchange for a no contest plea to second-degree murder, the State agreed to a cap of 30 years of imprisonment. Superior Court Judge Mary E. Greene accepted the plea agreement, and on January 23, 2002, Judge Greene imposed a 30-year term with 7 years suspended, a net 23-year term to serve.
AS 11.41.100(a).
Approximately two and one-half years later, Esmailka filed an application for post-conviction relief. The State moved to dismiss the application, arguing that it was time-barred under AS 12.72.020(a)(3)(A) because Esmailka had not filed the application until more than two years had passed since his conviction was final. Superior Court Judge Randy M. Olsen granted the State's motion to dismiss. We affirmed the superior court's dismissal in an earlier opinion.
See Esmailka v. State, Alaska App. Memorandum Opinion and Judgment No. 5049 (Feb. 22, 2006), 2006 WL 439284.
After we issued the earlier opinion, Esmailka filed a motion to correct an illegal sentence under Criminal Rule 35(a). Esmailka contended that his actions in killing Crispin were not "purposeful, deliberate, or premeditated," and that he shot his brother "out of fear of being attacked" while he was still "asleep and not fully awake." Esmailka claimed that the homicide was not murder but an accident. Esmailka requested a new trial and that his conviction be reversed.
Judge Olsen concluded that these were not grounds for attacking the legality of Esmailka's sentence, and he denied the motion. Discussion
Esmailka claims that his sentence is illegal for two reasons: (1) his counsel at sentencing and his counsel for his post-conviction relief claim were both incompetent; and (2) his sentence is excessive. But neither claim is an illegal sentence claim under Criminal Rule 35(a).
In Bishop v. Anchorage, we discussed the types of claims that Rule 35(a) encompasses:
685 P.2d 103 (Alaska App. 1984).
The term "illegal sentence" has been narrowly construed. It applies only to sentences which the judgment of conviction did not authorize. Examples of illegal sentences would be (1) a sentence that was contrary to the applicable statute, i.e., in excess of the statutory penalty; (2) a written judgment not conforming to the oral pronouncement of sentence; or, (3) "a sentence that is ambiguous with respect to the time and manner in which it is to be served." Rule 35(a) does not permit consideration of matters outside the sentencing record, nor does it authorize a collateral attack on the proceedings which resulted in the sentence imposed.
Id. at 105 (footnotes omitted).
In Walsh v. State, we recognized that Bishop described a non-exhaustive list of sentences that were "illegal" under Criminal Rule 35(a). We recognized that the guiding principle of Rule 35(a) is whether the court imposed a sentence that was not authorized by the judgment of conviction. In particular, we held that a sentence imposed in violation of Blakely v. Washington was an "illegal sentence" under Criminal Rule 35(a).
134 P.3d 366 (Alaska App. 2006).
Id. at 373.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Walsh, 134 P.3d at 373-74.
Esmailka concedes there is no Blakely error in his case but he seems to contend that his situation is analogous to Blakely because "the sentence exceeds the 20-year benchmark and the five-year minimum presumptive sentence and there were mitigators, and no aggravators."
Sentencing for second-degree murder is not covered by the presumptive sentencing law. Rather, under AS 12.55.125(b), the crime of second-degree murder carries an indeterminate sentencing range of 10 to 99 years, without regard to the aggravating and mitigating factors listed in AS 12.55.155(c)-(d). This court, however, set a 20 to 30-year benchmark sentencing range for first felony offenders convicted of second-degree murder in Page v. State.
657 P.2d 850, 854-55 (Alaska App. 1983).
To the extent that Esmailka is claiming that his sentence could not lawfully exceed the 10-year minimum term of imprisonment unless the State proved aggravators, he is wrong. As this Court explained in Soundara v. State:
107 P.3d 290 (Alaska App. 2005).
A mandatory minimum term is the least possible sentence that can be imposed for a particular crime. [It] represents the legislature's assessment of how much prison time should be imposed on an offender even when the offender's background is extremely favorable and the offender has engaged in the most mitigated conduct within the definition of the offense.
Id. at 300.
But if Esmailka is claiming that his sentence could not lawfully exceed 20 years to serve unless the State proved aggravators, he is also wrong. First, Page does not set 20 years as the benchmark sentence for first felony offenders convicted of second-degree murder. Rather, Page sets a benchmark range of 20 to 30 years to serve. Thus, under Page, a sentencing judge needs no special justification for imposing a sentence of up to 30 years for this offense. Esmailka's sentence was 23 years to serve. Second, we have already held that the Blakely right to jury trial does not apply to a judge's decision to exceed the Page benchmark.
See Carlson v. State, 128 P.3d 197, 211 (Alaska App. 2006).
Esmailka's additional claims — that his attorneys were ineffective and that his sentence is excessive — are not claims that raise the issue of the legality of the sentence imposed. Thus, Judge Olsen properly dismissed Esmailka's motion.
Conclusion
The judgment of the superior court is AFFIRMED.