Opinion
Court of Appeals No. A-10175.
February 17, 2010.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben Esch, Judge, Trial Court No. 2KB-04-256 CR.
Appearances: Dan S. Bair, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Charles Pungalik was originally charged with sexual assault in the first degree, kidnapping, assault in the third degree, assault in the fourth degree, and resisting arrest. Prior to trial, Pungalik entered into a plea agreement, which was implemented in a plea and sentencing hearing before Superior Court Judge Ben Esch. Pungalik agreed that he would plead no contest to an amended charge of sexual assault in the third degree, that he would receive the maximum 10-year sentence for that offense, and that the remaining charges would be dismissed.
AS 11.41.425(a)(1)(B).
Pungalik had two prior convictions for sexual felonies, so the presumptive sentence for sexual assault in the third degree was 6 years. Judge Esch confirmed with counsel that Pungalik wanted to waive his right to a jury trial on aggravating factors under Blakely v. Washington, so that the court could accept the plea agreement and impose a sentence in excess of the presumptive sentence. Judge Esch told Pungalik that the 6-year presumptive sentence could not be increased to the agreed upon 10-year sentence unless aggravating factors were either proven to a jury or admitted by the defendant.
See former AS 12.55.125(i)(4)(D) (2003).
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The prosecutor stated that the appropriate aggravating factor in Pungalik's case was that his conduct was among the most serious conduct included in the definition of the offense. The judge advised Pungalik that the court would be able to find the most-serious-conduct aggravating factor (without a jury trial) if Pungalik admitted that he had actually penetrated the victim, rather than merely engaging in sexual contact. Pungalik agreed, and his lawyer confirmed that Pungalik was entering his plea freely and voluntarily and with a full understanding of his rights. The court accepted Pungalik's plea and imposed the 10-year sentence contemplated by the plea bargain.
See AS 12.55.155(c)(10).
Six weeks later, Pungalik filed a pro se motion to correct an illegal sentence pursuant to Criminal Rule 35(a). Pungalik argued that the sentencing judge violated Blakely by basing his aggravated sentence on facts not found by a jury. The superior court denied Pungalik's motion after considerable litigation that is not relevant to this appeal.
In his written decision, Judge Esch explained that Pungalik entered into an agreement under which he would plead guilty to one count of third-degree sexual assault and be sentenced to a 10-year term. The judge also explained that, at sentencing, the parties recognized that an aggravating factor was needed to justify the 10-year term and that Pungalik admitted to facts required to find the aggravating factor. Thus, the judge concluded that the finding of the aggravating factor and the resulting 10-year term complied with Blakely.
Pungalik now appeals the superior court's decision denying his motion to correct an illegal sentence. However, Pungalik's appellate attorney has filed a motion to withdraw and an Anders brief stating that Pungalik has no non-frivolous claim to raise about the denial of his motion to correct an illegal sentence. Pungalik and the State have filed briefs responding to the issues raised by Pungalik's attorney.
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) (establishing an appellate procedure to reconcile situations where attorneys are appointed to represent indigent defendants but have conscientiously determined that any further litigation would be frivolous).
When an attorney representing an indigent defendant invokes the Anders procedure, the attorney should not be allowed to withdraw until both the attorney and this court have determined "that the appeal is frivolous — i.e., that no reasonable argument could be made in favor of the appeal." We must therefore consider whether there is any reasonable argument supporting the Blakely issue that Pungalik raised in his motion.
Johnson v. State, 24 P.3d 1267, 1268 (Alaska App. 2001).
A defendant must establish plain error when he raises a Blakely claim for the first time in a Rule 35(a) motion. Pungalik cannot meet this burden because this court has held that Blakely does not require a jury trial when a defendant does not dispute an aggravating factor. More particularly, this court has repeatedly held that a sentencing judge does not commit plain error under Blakely when the judge relies on aggravating factors that are conceded by the defendant's attorney, even if the judge fails to personally address the defendant about this concession.
Lockuk v. State, 153 P.3d 1012, 1017-18 (Alaska App. 2007).
See id. at 1016 (finding no plain error when a trial judge found aggravating factors without obtaining a defendant's personal waiver of his right to jury trial, when the existence of the aggravating factor was plain from the record and was not disputed).
Malutin v. State, 198 P.3d 1177, 1184 (Alaska App. 2009); Cooper v. State, 153 P.3d 371, 373 (Alaska App. 2007); Lockuk, 153 P.3d at 1016.
In this case, Judge Esch not only obtained a concession from Pungalik's attorney, but also a concession of the operative facts and a waiver of jury trial from Pungalik himself. Accordingly, because Pungalik conceded an aggravating factor, there is no reasonable argument supporting his claim that his sentence plainly violated Blakely.
Pungalik also raises a number of additional issues that were not raised in his Rule 35(a) motion. Many of these issues fall outside of the narrow scope of relief available for a motion to correct an illegal sentence under this rule. In addition, many of these issues cannot be asserted in a motion to correct an illegal sentence in a case like this one, where the sentence has been imposed pursuant to a plea agreement. We decline to review these remaining issues because they were not appropriately raised or decided in the superior court.
See Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App. 1984) (holding that the term "illegal sentence" applies only to sentences that the judgment of conviction did not authorize).
See Malutin, 198 P.3d at 1180; Woodbury v. State, 151 P.3d 528, 532 (Alaska App. 2007); Grasser v. State, 119 P.3d 1016, 1018 (Alaska App. 2005) (explaining that defendant cannot attack the sentencing portion of a plea agreement unless he seeks rescission of the plea agreement).
See Millette v. Millette, 177 P.3d 258, 267-68 (Alaska 2008) (explaining that issues are waived for purposes of appeal if not adequately raised below); Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997) (explaining that defendant must seek a ruling from the trial court before raising an issue on appeal).
We therefore AFFIRM the superior court's order denying the motion to correct an illegal sentence.