Opinion
Court of Appeals No. A-9598.
July 23, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-94-8367 Cr.
Linda Wilson, Assistant Public Defender, and Quinlan 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
Harry N. Powell argues that the superior court violated his Sixth Amendment right to a jury trial, as interpreted in Blakely v. Washington, when the court revoked his probation and imposed suspended imprisonment that resulted in a sentence exceeding the presumptive term that would apply to a second felony offender. We conclude that under our decision in Surrells v. State, a sentencing judge may re-sentence a first felony offender after revoking probation even if the defendant's sentence exceeds the presumptive sentence for a second felony offender. Therefore, we affirm the superior court.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
151 P.3d 483 (Alaska App. 2006).
Id. at 488-90.
Background facts and proceedings
In December 1994, the grand jury indicted Harry Powell on twenty counts, including first-degree sexual assault, second-degree sexual abuse of a minor, second-degree sexual assault, third-degree sexual assault, unlawful exploitation of a minor, third-degree misconduct involving a controlled substance, furnishing alcohol to a minor, and contributing to the delinquency of a minor. The charges arose from an investigation revealing that Powell gave drugs and alcohol to young girls, and when the girls became incapacitated or compliant, he engaged in sexual intercourse with them.
AS 11.41.410(a)(1).
Former AS 11.41.436(a)(1) (1994).
AS 11.41.420(a)(3)(B).
Former AS 11.41.425(a)(2) (1994).
Former AS 11.41.455(a)(6) (1994).
AS 11.71.030(a)(2).
AS 04.16.051(a).
AS 11.51.130(a)(1).
Powell reached a plea agreement with the State in which he pleaded no contest to four consolidated charges: unlawful exploitation of a minor, third-degree misconduct involving a controlled substance, furnishing alcohol to a minor, and second-degree sexual assault. The furnishing-alcohol count was a class C felony; the remaining counts were class B felonies.
See AS 04.16.051(d); former AS 11.41.455(c)(1994); AS 11.71.030(c); and AS 11.41.420(b).
Powell faced a maximum 10 years' imprisonment for each class B felony and a maximum 5 years' imprisonment for the class C felony. Powell was a first felony offender, and under the pre-March 2005 sentencing code, Powell could not be sentenced to more than the applicable presumptive term for a second felony offender absent aggravating factors. Therefore, in the absence of aggravating factors, the superior court could not impose a term of unsuspended imprisonment of more than 4 years for a class B felony and more than 2 years for the class C felony.
See former AS 12.55.125(d), (e), respectively.
See former AS 12.55.125(k).
See former AS 12.55.125(d)(1), (e)(1), respectively.
The State proposed several statutory aggravating factors, and Powell objected to those factors. Superior Court Judge Karen L. Hunt found several aggravating factors under AS 12.55.155: (c)(5) (Powell knew or reasonably should have known that the victim of the second-degree sexual assault was particularly vulnerable); (c)(10) (Powell's conduct with respect to third-degree misconduct involving a controlled substance and furnishing alcohol to a minor was among the most serious within the definition of each offense); (c)(18)(B) (with respect to second-degree sexual assault, Powell had engaged in the same or similar conduct involving the same or another victim who was a minor); (c)(18)(C) (with regard to unlawful exploitation of a minor, Powell had engaged in the same or similar conduct involving the same or another victim).
Despite having found these aggravating factors, Judge Hunt did not exceed the normal sentencing ceilings for Powell's offenses. Judge Hunt sentenced Powell to 4 years with 2 years suspended for unlawful exploitation, 3 years with 1 year suspended for third-degree misconduct involving a controlled substance, 3 years with 1 year suspended for furnishing alcohol to a minor, and 6 years with 2 years suspended for second-degree sexual assault. The sentence for each count was imposed consecutively, resulting in a composite term of 16 years with 6 years suspended, a net 10-year term to serve.
On July 10, 2001, Powell was released to parole and probation supervision. The Parole Board later revoked Powell's parole for numerous violations of his parole conditions, and the Board required Powell to serve the balance of his parole time. The State also filed a petition to revoke Powell's probation. Superior Court Judge Dan A. Hensley found Powell had violated his probation conditions, but he imposed no additional jail time because Powell's parole had already been revoked.
Powell was released on probation in September 2004. In June 2005, the State filed a petition to revoke probation: among other violations of his probation conditions, Powell had contact with one of the victims from his case and with a minor under the age of sixteen. On October 20, 2005, Superior Court Judge Michael L. Wolverton revoked Powell's probation and ordered him to serve the balance of his suspended imprisonment.
In January 2006, Powell filed a motion to correct an illegal sentence under Criminal Rule 35(a). Powell contended that the imposition of 3 years for furnishing alcohol to a minor and 6 years for second-degree sexual assault violated the Sixth Amendment because the aggravating factors the superior court applied to those two counts were not found by a jury beyond a reasonable doubt, as required by Blakely. Judge Wolverton denied Powell's motion.
Powell appeals.
Discussion
Powell argues that the right to a jury trial and the standard of proof beyond a reasonable doubt required by Blakely apply when a court imposes suspended imprisonment when revoking probation for a first felony offender and the resulting term exceeds the presumptive term for a second felony offender.
The State points out that, when Powell's sentence was originally imposed, the superior court did not exceed the normal sentencing ceilings specified in former AS 12.55.125(k). Under former AS 12.55.125(k), a first felony offender convicted of an offense for which there is no presumptive term of imprisonment could not be sentenced:
to a term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime unless the court finds by clear and convincing evidence that an aggravating factor under AS 12.55.155(c) is present, or that circumstances exist that would warrant a referral to the three judge panel under AS 12.55.165.
Powell acknowledges that the unsuspended time imposed as part of his original sentence did not exceed the presumptive terms for a second felony offender. However, Powell points out that after Judge Wolverton revoked his probation and ordered him to serve 3 years for furnishing alcohol to a minor, a class C felony, and 6 years for second-degree sexual assault, a class B felony, the sentence for each count exceeded the presumptive terms for a second felony offender.
Powell contends that "under the United States Constitution, all factual findings, including alleged aggravators and extraordinary circumstances under former AS 12.55.125(k), must be proved to a jury beyond a reasonable doubt before any active jail time above the applicable presumptive term could be imposed, even though initially suspended." Powell asserts that, while Blakely had not been decided in 1996 when Judge Hunt imposed sentence, it now applies because his probation was revoked on October 20, 2005, after Blakely was decided. Powell maintains that during the probation revocation hearing, Judge Wolverton should not have relied on Judge Hunt's earlier findings of aggravating factors to impose previously suspended time in excess of the presumptive limits. Powell argues that doing so violated his Sixth Amendment rights as interpreted in Apprendi v. New Jersey, Blakely, and Cunningham v. California.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007).
We addressed the same issue Powell raises in Surrells v. State. Surrells was a first felony offender convicted of a class B felony. The superior court found four statutory aggravating factors, and imposed a sentence of 2 years to serve with an additional 4 years suspended. Later, the court revoked Surrells's probation and imposed 2 years of the suspended jail time. In 2005, the State again petitioned the court to revoke Surrells's probation. Surrells filed a motion to correct his sentence, arguing that the court could not impose the additional time to serve without violating Blakely because it went above the 4-year limit established by former AS 12.55.125(k)(2).
151 P.3d 483 (Alaska App. 2006).
Id. at 485.
Id. at 486.
Id.
Id.
Id. at 486-87.
We held that when the superior court revoked Surrells's probation and imposed suspended imprisonment above the limit originally set by AS 12.55.125(k)(2), the court's action did not trigger Surrells's Sixth Amendment right to a jury trial as interpreted by Blakely:
Under Alaska law, when a sentencing court suspends a portion of a defendant's term of imprisonment and places the defendant on probation, it is understood that if the defendant violates the probation conditions, the sentencing court has the authority to order the defendant to serve the previously suspended jail time. Thus, there is no "increase" in the defendant's sentence when, based on the defendant's post-sentencing conduct, the sentencing court finds good cause to revoke the defendant's probation and impose some or all of the previously suspended term of imprisonment.
Id. at 489.
We explained that a defendant does not have a right to a jury trial or to proof beyond a reasonable doubt at a probation revocation hearing. Based on Surrells, the Blakely right to a jury trial does not apply to findings that a judge makes when revoking the probation of a first felony offender sentenced under the pre-March 2005 sentencing law where the judge chooses to impose a total time to serve for an offense that exceeds the presumptive term for a second felony offender convicted of the same offense.
Id. (citing Gilligan v. State, 560 P.2d 17, 19 (Alaska 1977)).
Id. at 494-95.
Powell argues Surrells was wrongly decided and should be overruled. Powell bears a heavy burden of showing compelling reasons for why this Court should reconsider its prior ruling. As the Alaska Supreme Court stated:
See Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004); Sweezey v. State, 167 P.3d 79, 80 (Alaska App. 2007).
We will overrule a prior decision only when clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent.
Thomas, 102 P.3d at 943 (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003)).
Powell cites State v. Gibbs, Peltola v. State, and Dayton v. State to support his argument that Surrells was wrongly decided. But none of these cases involved probation revocations. In each case, the court left open the question of whether Blakely would apply in probation revocation actions where previously suspended time would be imposed in excess of AS 12.55.125(k)(2). We answered that question in Surrells, and rejected the argument that Powell now makes.
105 P.3d 145 (Alaska App. 2005).
117 P.3d 771 (Alaska App. 2005).
120 P.3d 1073 (Alaska App. 2005).
Gibbs, 105 P.3d at 148; Peltola, 117 P.3d at 772; Dayton, 120 P.3d at 1078, 1083.
Surrells, 151 P.3d at 484-85.
Powell next argues that we should revisit Surrells because of the United States Supreme Court's decision in Cunningham v. California. Cunningham was sentenced under California's determinate sentencing law. Under this law, there are three ranges of imprisonment that may be imposed upon conviction: a lower, middle, and upper term. California law provided that the judge was to select the middle term "unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation" that were established by a preponderance of the evidence. Circumstances in aggravation were defined as " facts which justify the imposition of the upper prison term." The Supreme Court, relying on Apprendi, Blakely, and United States v. Booker, struck down California's law. The Court held that "under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence."
Id. at 860.
Id. at 860-62.
Id. at 862 (quoting Cal. Court Rule 4.420(a) and citing Cal. Court Rule 4.420(b)).
Id. (quoting Cal. Court Rule 4.405(d) (emphasis in original)).
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
Cunningham, ___ U.S. ___, 127 S. Ct. at 863-64.
Powell argues that Cunningham requires this court to overrule Surrells and require jury fact-finding at probation revocation actions. But Cunningham is distinguishable. Cunningham involved an initial sentencing, not a probation revocation. As the State also points out, under the California law, a judge was not free to impose an upper-term sentence unless the judge made factual findings allowing the imposition of that sentence. The Supreme Court reasoned that under its prior decisions from Apprendi to Booker, the middle term in California's statutes was the statutory maximum. Surrells explained that a judge does not increase a sentence for Blakely purposes when the judge revokes an offender's probation. Accordingly, Blakely does not apply.
Id. at 870.
Id. at 871.
Surrells, 151 P.3d at 490.
Powell also argues that his sentence violates the Alaska Constitution. Powell maintains that the Alaska Constitution independently requires the State to prove aggravating factors to a jury beyond a reasonable doubt when the sentencing court imposes suspended time that exceeds the normal statutory limit under former AS 12.55.125(k). Powell did not preserve this argument in the superior court, and we rejected this argument in Active v. State, where we held that "the Alaska Constitution guarantees [no] broader right to jury trial with respect to sentencing factors than the right to jury trial recognized in Blakely." Conclusion
153 P.3d 355 (Alaska App. 2007).
Id. at 367.
The judgment of the superior court is AFFIRMED.