Opinion
Court of Appeals No. A-8796.
May 31, 2006.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Trial Court No. 3PA-02-2507 CR.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, 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
Lee R. Richards was convicted of one count of felony driving while under the influence of alcohol (felony DUI) and one count of driving while his license was revoked. Based on its findings of one aggravating factor and that Richards was a worst offender, the superior court imposed 5 years to serve, the maximum sentence for felony DUI. On appeal, Richards advances several arguments: that his indictment for felony DUI should have been dismissed because the prosecutor made improper statements to the grand jury; that his sentence for felony DUI violates Blakely v. Washington because an aggravating factor was not found by a jury beyond a reasonable doubt; and that his sentence for felony DUI is excessive because the superior court should not have found that he was a worst offender. For the following reasons, we uphold the decisions of the superior court.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Facts and procedural background
Shortly after midnight on December 1, 2002, James Watford, the owner of a tow company, came across an older model Ford pick-up truck stuck in a ditch near the intersection of Pittman and Sunrise, west of Wasilla. Richards was slumped over in the driver's seat.
After asking Richards whether he needed an ambulance, Watford left and returned with his tow truck. He pulled Richards out of the ditch. As soon as Watford detached the cables from Richards's truck, Richards drove back into the ditch, but Richards was able to get back onto the road without getting stuck.
Watford returned to his own vehicle, contacted the state troopers, and then prepared to leave the scene. As Watford was leaving, he saw Richards drive into another ditch on the opposite side of the road.
When Alaska State Trooper Sergeant Richard G. Terry arrived on the scene at approximately 2:00 a.m., the truck was still in the ditch and Richards was behind the steering wheel. According to Sgt. Terry, Richards's speech was slurred, he smelled of alcohol, and there was an empty alcohol bottle on the seat. Richards admitted that he was drunk.
Sgt. Terry asked Richards for his driver's license, but Richards gave him an Alaska ID card instead. Sgt. Terry contacted trooper dispatch and learned that Richards's driver's license had been revoked and the registration on his vehicle was expired. When Richards refused to complete field sobriety tests, Sgt. Terry arrested Richards for driving while his license was revoked and driving while under the influence of alcohol. A Datamaster test revealed that Richards's alcohol level was .195, more than twice the legal limit.
A person commits the crime of driving while under the influence of alcohol if a Datamaster test taken within four hours of that person driving reveals a breath alcohol content of .08 grams or more of alcohol per 210 liters of the person's breath. AS 28.35.030(a)(2).
Based on these events and Richards's history of DUI convictions, a grand jury indicted Richards on one count of felony DUI, a class C felony. The State added, by information, one count of driving while license revoked (DWLR), a class A misdemeanor. Superior Court Judge Eric Smith denied Richards's motion to dismiss the indictment and, in a bifurcated trial, a jury convicted Richards of felony DUI and driving while license revoked.
AS 28.35.030(a) (n).
AS 28.15.291(a)(1).
At sentencing on February 13, 2004, Richards conceded, through counsel, one aggravating factor — AS 12.55.155(c)(21), that Richards had a criminal history of repeated instances of similar conduct. (Richards had at least nine prior convictions for DUI.) The State argued that Richards was a worst offender, which Richards conceded for purposes of his DWLR conviction but denied with respect to his felony DUI. Judge Smith acknowledged that "it's a giant leap between a misdemeanor worst offender and a felony worst offender," but he ultimately found that Richards was a worst offender for purposes of both convictions.
Judge Smith imposed 5 years, all to serve, for felony DUI, and 1 year, consecutive, for DWLR. Richards now appeals.
Richards's claim that his indictment should have been dismissed
Richards argues that Judge Smith should have dismissed his indictment for felony DUI because of two comments that the prosecutor made to the grand jury. Richards first objects to the prosecutor's response to a grand juror who asked whether Richards had pleaded not guilty. The prosecutor answered:
Well, when a person's arraigned[,] it's always a not guilty plea entered for the person, you know what I mean? A person's arraigned in district court, the magistrate in district court does not let people — even if somebody said ["]I want to plead guilty["], I mean, I — I've been in court for arraignments when — and I've been in court for an arraignment on a murder case where somebody wanted to plead guilty, but the magistrate does not — I mean, number one, it's a felony in district court, so they can't plead guilty in district court, but [the judges] usually enter a not guilty plea on their behalf and then [the case] goes to prelim[inary hearing].
But, you know, as far as the background of this case, you know, I don't want to get into telling you whether this person's in custody or out of custody, or whether the — this was one of these that was tried to resolve but couldn't be resolved at prelim, because I don't want to — I don't want to taint the Grand Jury at this point, okay? So, I'm — I can't tell you, you know, where this case is at. I mean, obviously, the person has been charged; it's not one of those that goes straight to Grand Jury. But I don't want to tell you anything else, because I don't want to affect the Grand Jury's deliberations.
When Judge Smith denied Richards's motion to dismiss the indictment, he reasoned that the prosecutor had "handled [the question concerning whether Richards had pleaded not guilty] perfectly appropriately . . . and did a good job . . . of deflecting the issue."
A prosecutor has two roles in grand jury proceedings: that of advocate for the State, and that of legal advisor to the grand jury. In the role of legal advisor to the grand jury, the prosecutor may explain the law and express an opinion on the legal significance of the evidence. In this case, by directing the grand jury's attention to the arraignment process in general, and by explaining that everyone charged with a felony pleads "not guilty" initially, the prosecutor acted properly.
Coleman v. State, 553 P.2d 40, 47-48 (Alaska 1976).
Id. at 48.
Furthermore, it was proper for the prosecutor to caution the grand jury that he did want to taint their deliberations by saying more than he needed to. This remark was not intended to establish or prove a fact, nor did it increase the likelihood that the grand jury would conclude that Richards drove while intoxicated.
See Anderson v. State, 111 P.3d 350, 352-53 (Alaska App. 2005) (defining testimony as "a solemn declaration or affirmation made for the purpose of establishing or proving some fact"); A.R.E. 401 (defining relevant evidence as evidence having any tendency to make the existence of any fact of consequence to the determination of the action more or less probable). Cf. Morrow v. State, 80 P.3d 262, 264-65 (Alaska App. 2003) (implying that the prosecutor's explanation of a local practice amounted to improper prosecutor testimony because it helped to discredit an alternative explanation for Morrow's failure to appear at sentencing, the crime for which Morrow was charged).
We therefore find nothing improper about the prosecutor's response to the question about Richards's plea.
Richards next objects to the prosecutor's remarks to the grand jury about Richards's prior record. Richards complains that the remarks constituted testimony. Under AS 28.35.030(n) and AS 28.35.030(t)(4), the offense of driving while under the influence is a felony if the person has two or more qualifying prior convictions for driving while under the influence or chemical test refusal. During the presentation of Richards's case to the grand jury, the prosecutor asked the investigating officer, Sgt. Terry, whether Richards had the requisite two prior convictions. Sgt. Terry responded that Richards had the necessary prior convictions, but he said he did not have the information about those convictions with him.
At this point, a grand juror asked whether they were referring to convictions or merely arrests, and whether the law differentiated between the two. The prosecutor responded,
Yeah, convictions dates. And actually, let me take a look at something here. I actually might have — this case has been around a while[;] this happened in December, so I might actually have some certifieds here. Let me see what I have. I mean, these aren't out-of-state convictions, so we don't have to admit but let me see what type of certifieds I have here. Six, seven. Six. We don't have the certifieds yet for those particular convictions. I thought we might have them in the file[;] I would've marked them, but we didn't get those yet. And they're from local courts[,] so we don't necessarily make it a point to obtain those ahead of time. If it's out of state[,] we usually try to order them and have the copy with the court seal and imprint and all that, but for these we don't get them ahead of time.
On appeal, Richards concedes that the State presented sufficient evidence that he had the required two prior convictions. But Richards argues that it was improper and unfairly prejudicial for the prosecutor to tell the grand jurors that Richards had six, or perhaps seven, prior convictions. (In fact, as we discuss later, Richards had ten prior convictions for driving while under the influence or chemical test refusal.)
When Judge Smith denied Richards's motion to dismiss the indictment, the judge concluded that the grand jurors would not necessarily have understood the prosecutor's statement, "Six, seven. Six." as a reference to the number of Richards's prior convictions. We disagree. The context of the prosecutor's remark was plain; he was leafing through his file to see if it contained documentation concerning Richards's prior convictions. Although the "Six, seven. Six," remark appears to have been an aside, the grand jurors could have understood the prosecutor's remark to be an assertion that the prosecutor's file contained information that Richards had six prior convictions.
Nevertheless, even assuming that the prosecutor's remark was improper, this remark does not require invalidation of the indictment unless, with this improper information deleted, it appears that the grand jury would not have issued its indictment. Even when a grand jury hears improper evidence, the indictment should only be dismissed if "the probative force of [the remaining] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict."
Stern v. State, 827 P.2d 442, 446 (Alaska App. 1992).
Id.
Richards does not dispute that there was sufficient admissible evidence presented to the grand jury to support his indictment — that there was sufficient evidence that he had the required two prior convictions. And we are unpersuaded by Richards's argument that, because the grand jury might have thought that Richards had as many as six or seven prior convictions rather than the requisite two, the grand jurors were prompted to indict Richards when they otherwise would have declined to do so because evidence of the additional convictions was inadmissible character evidence. The State presented strong evidence that Richards was under the influence when he drove his vehicle; the case was not close on this issue. The fact that the grand jurors may have thought that Richards had six or seven prior convictions rather than two could not have been a decisive factor in the grand jury's deliberations.
Finally, Richards contends that, under Ostlund v. State, the entire grand jury proceeding should have been bifurcated to prevent the grand jury from hearing any evidence of Richards's prior convictions until the grand jurors had already found that he had driven while under the influence on the night in question.
51 P.3d 938 (Alaska App. 2002).
This issue is raised for the first time on appeal; Richards did not ask the superior court to invalidate the indictment on this ground. Under Criminal Rule 12(e), Richards's failure to raise this issue in the superior court means that he has waived this issue. We therefore address it no further.
Richards'sm Blakely claim
Richards next argues that his sentence is unconstitutional under Blakely v. Washington because Judge Smith found aggravator AS 12.55.155(c)(21) using a clear and convincing evidence standard of proof. Blakely applies to Richards's case because the case was pending on direct review when Blakely was decided. Because Richards did not object to the sentencing procedure below, he must now show plain error.
See Haag v. State, 117 P.3d 775, 783 (Alaska App. 2005).
See id.
Richards was sentenced under Alaska's pre-2005 presumptive sentencing laws. As a first felony offender, he was not subject to a presumptive term of imprisonment. But, because a first felony offender should normally receive no more time to serve than the presumptive term for a second offender, Judge Smith could not impose more than 2 years to serve — the presumptive term for a second felony offender convicted of a class C felony — without finding aggravating factors or extraordinary circumstances.
See former AS 12.55.125(e). Because Richards had more than four prior convictions for driving while intoxicated, he faced a mandatory minimum sentence of 360 days' imprisonment. See AS 28.35.030(n)(1)(C).
See Former AS 12.55.125(e)(1).
See Former AS 12.55.125(k); Dayton v. State, 120 P.3d 1073, 1080-81 (Alaska App. 2005).
Under Blakely, a jury must find beyond a reasonable doubt any facts necessary to increase the penalty for an offense above the prescribed statutory maximum. But Blakely exempts from this rule issues of fact that are based on a defendant's prior convictions. Although aggravator (c)(21) may be proved by evidence of uncharged conduct, this court held in Grohs v. State that aggravator (c)(21) falls within Blakely's prior conviction exception when it is based entirely on a defendant's prior convictions. Grohs controls this case because the State relied entirely on Richards's nine prior DUI convictions to prove the aggravator.
Id. at 301, 124 S. Ct. at 2536.
Turpin v. State, 890 P.2d 1128, 1132 (Alaska App. 1995).
118 P.3d 1080 (Alaska App. 2005).
Id. 118 P.3d at 1084.
Richards nevertheless contends that a jury was required to find that his prior convictions were similar in nature to his present offense. In Shepard v. United States, the United States Supreme Court ruled that a trial court applying the Armed Career Criminal Act could not look at police reports or complaint applications to determine whether an earlier guilty plea supported a conviction for generic burglary because the sentencing judge would be required to "make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea[.]" Richards contends that, to find aggravator (c)(21), Judge Smith was likewise required to make a finding of fact that was "too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to [the rule announced in] Apprendi[.]"
544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).
Id. at 25, 125 S. Ct. at 1262.
See id.
But unlike in Shepard, the State did not attempt to introduce evidence of the underlying facts of Richards's convictions. Instead, Judge Smith simply examined the judicial record of Richards's prior convictions, and he took judicial notice of the legal elements of those prior offenses. Because the only difference between a felony DUI and a misdemeanor DUI is the presence or absence of prior convictions, Richards's prior DUI convictions are, as a matter of law, "similar in nature" to his present offense.
See Grohs, 118 P.3d at 1084. Cf. Shepard, 544 U.S. at 16, 125 S. Ct. at 1257 (holding that a court determining the character of an admitted burglary for purposes of sentencing under the Armed Career Criminal Act is generally limited "to examining the statutory definition, charging document, written plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented").
See AS 28.35.030(a), (b), (n).
Finally, citing Justice Thomas's concurrence in Shepard, Richards contends that the prior conviction exception is no longer good law because a majority of the Supreme Court now believes that Almendárez-Torres v. United States, which the exception is based on, was wrongly decided. We decline to speculate about the future of the prior conviction exception. As we recently explained in Tyler v. State, lower courts must apply United States Supreme Court precedent as it exists and not as it may develop. We therefore uphold Judge Smith's finding of aggravator (c)(21) on the basis of Richards's prior convictions.
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
Alaska App. Opinion No. 2039 (March 31, 2006), 2006 WL 829881.
Id. at 7-8, 2006 WL 829881 at *3.
Richards's claim that his sentence is excessive
Richards argues that the sentence he received for felony DUI is excessive because Judge Smith should not have found that he was a worst offender.
Before imposing 5 years to serve, the maximum sentence for Richards's class C felony, Judge Smith was required to find that Richards was a worst offender. A worst offender finding may be based on the facts of the offense, the defendant's background, or both. Judge Smith relied exclusively on Richards's criminal history to find that Richards was a worst offender for sentencing purposes.
See, e.g., Coles v. State, 64 P.3d 149, 149 (Alaska App. 2003).
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Foley v. State, 9 P.3d 1038, 1041 (Alaska App. 2000); Napayonak v. State, 793 P.3d 1059, 1062 (Alaska App. 1990).
Richards argues that because the present offense was his first felony Judge Smith should not have found that he was a felony worst offender based solely on his record of misdemeanor convictions. Richards points out that in other recent felony DUI cases in which this court upheld worst offender findings the facts were more egregious than those at issue here and the defendants had prior felony convictions. But the relative egregiousness of Richards's current offense is irrelevant because Judge Smith based his worst offender finding on Richards's criminal history alone. And, although Richards is a first felony offender, Judge Smith could properly rely on Richards's history of driving while intoxicated and poor prospects for rehabilitation to find that he was worst offender.
See Foley, 9 P.3d at 1041.
In Coles v. State and Foley v. State, we emphasized the defendants' misdemeanor convictions for driving while intoxicated, rather than their unrelated felony convictions, to uphold the trial courts' worst offender findings. In Foley, we held that where the defendant's "record [was] replete with convictions for driving while intoxicated — an offense which . . . poses a significant danger to the life and safety of others[,]" the sentencing judge could properly rely on the devendant's numerous misdemeanor convictions to find that he was a worst offender for purposes of sentencing on his felony DUI. Although a substantial period of imprisonment should not usually be imposed on someone who has not previously been subject to a lesser term, we concluded that Foley's sentence was appropriate because he was a mature defendant with a lengthy record of convictions and poor prospects for rehabilitation. Like Foley, Richards was 52 years old when he committed his present offense, and he has a lengthy criminal record, including ten convictions for driving while under the influence or refusal to submit to a chemical test and twenty-one convictions for driving while license cancelled, suspended, or revoked. Judge Smith found that his prospects for rehabilitation were poor. Judge Smith could properly rely on Richards's numerous misdemeanor convictions to find that Richards was a worst offender for purposes of his felony DUI.
See Coles, 64 P.3d at 150; Foley, 9 P.3d at 1040.
Foley, 9 P.3d at 1041.
Tate v. State, 711 P.2d 536, 540 (Alaska App. 1985).
Foley, 9 P.3d at 1041.
See id.
The record supports Judge Smith's finding that Richards was a worst offender. We therefore conclude that Richards's sentence of 5 years to serve for felony DUI is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
The judgment of the superior court is AFFIRMED.