Opinion
No. A-9002.
November 15, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge.
Randall S. Cavanaugh, Kalamarides Lambert, Anchorage, for the Appellant.
Timothy W. Terrell, 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
Darren S. Teasley argues that he was sentenced in violation of Blakely v. Washington. We recently decided that Blakely applies retroactively. However, we conclude that Teasley's sentence complies with Blakely. Accordingly, we affirm Teasley's sentence.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Smart v. State, ___ P.3d ___, Alaska App. Opinion No. 2070 (Oct. 27, 2006), 2006 WL 3042821.
Background facts and proceedings
On August 27, 1996, the grand jury indicted Teasley for fourth-degree misconduct involving a controlled substance, second-degree misconduct involving weapons, and third-degree misconduct involving weapons. The indictment stemmed from an incident the preceding July. An Anchorage police officer found Teasley and a female passenger, Rebecca Jones, in a vehicle near the Glenn Highway. The vehicle had apparently run off the road, leaving skid marks over 200 feet long. The officer smelled alcohol on Teasley's breath and processed him for driving while under the influence. The officer observed open beer containers in the car and, upon searching the car, found a handgun, a film canister containing marijuana and cocaine residue, two pistol magazines, and two crack pipes.
AS 11.71.040(a)(3)(A).
AS 11.61.195(a)(1).
AS 11.61.200(a)(1).
Teasley pleaded no contest to fourth-degree misconduct involving a controlled substance in exchange for the State dismissing the other charges. Teasley had two prior felony convictions and was therefore subject to a presumptive sentence of 3 years with a maximum sentence of 5 years for the class C felony. The parties agreed that mitigator AS 12.55.155(d)(14) (the offense involved a small quantity of cocaine) applied at sentencing.
Former AS 12.55.125(e)(2) (pre-March 2005 version).
The State alleged that three statutory aggravating factors from AS 12.55.155 applied: (c)(7) (a prior felony conviction considered for invoking the presumptive term is a more serious class of felony than the present offense); (c)(10) (Teasley's conduct was among the most serious conduct included in the definition of the offense); and (c)(21) (Teasley had a criminal history of conduct similar to the present offense).
Teasley conceded aggravators (c)(7) and (c)(21) but disputed aggravator (c)(10). The State argued (c)(10) applied because Teasley possessed the handgun during the commission of a felony drug crime. Teasley argued that the gun actually belonged to Jones, who was a passenger in the car.
Teasley was sentenced in July 1997. Superior Court Judge Larry D. Card found that all three aggravators had been established. Based on the mitigator, the three aggravators, and considering the Chaney sentencing factors codified in AS 12.55.005, Judge Card sentenced Teasley to 54 months with 24 months suspended (30 months to serve) and 5 years probation. Teasley did not appeal his sentence.
State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). See also AS 12.55.005 (codifying the Chaney sentencing factors).
During his probationary period, Teasley violated the terms of his probation several times. In 2000, the superior court found that Teasley violated his probation and imposed 9 months to serve. In November 2002, a second petition to revoke Teasley's probation was filed. This petition was amended twice due to ensuing violations during the petition period.
During an adjudicatory hearing held in January 2004, Teasley admitted three charges from the petition. After a disposition hearing in July 2004, Judge Card imposed the remaining 15 months of Teasley's suspended sentence.
In October 2004, Teasley filed a Criminal Rule 35(a) motion to correct an illegal sentence, arguing that, because a jury did not find the aggravators beyond a reasonable doubt, his original sentence was illegal under Blakely. Judge Card found that Teasley's underlying case was final at the time Blakely was decided and that Blakely did not apply retroactively.
Teasley appeals the superior court's denial of his Rule 35(a) motion.
Discussion
As a threshold matter, the State argues that Blakely claims such as Teasley's are not properly brought in a Criminal Rule 35(a) motion. However, in Walsh v. State, we held that a sentence imposed in violation of Blakely is an illegal sentence for purposes of Rule 35(a).
134 P.3d 366 (Alaska App. 2006).
Id. at 374.
We recently decided that Blakely should be applied retroactively to cases that were final at the time Blakley was decided. But in Teasley's case, Blakely is satisfied because the superior court found two Blakely-compliant aggravators, (c)(7) and (c)(21). In Cleveland v. State, we held that if the superior court found one Blakely-compliant aggravator at sentencing, Blakely is satisfied even if the superior court found other aggravators that did not comply with Blakely.
Smart, Opinion No. 2070, 2006 WL 3042821.
___ P.3d ___, Alaska App. Opinion No. 2060 (Aug. 25, 2006), 2006 WL 2458578.
Cleveland, Opinion No. 2060 at 14, 2006 WL 2458578 at *7.
Here, Judge Card found two aggravators that complied with Blakely: (c)(7) and (c)(21). In Milligrock v. State, we held that aggravator (c)(7) presented a legal question: whether a defendant's prior felony conviction was a higher class of felony than the present offense. Teasley pleaded no contest to fourth-degree misconduct involving controlled substances, a class C felony. He had a prior conviction for third-degree misconduct involving controlled substances, a class B felony. Therefore, this aggravator was established even without Teasley's concession.
118 P.3d 11 (Alaska App. 2005).
Id. at 15-16.
AS 11.71.030(a) (c).
In Grohs v. State, we held that aggravator (c)(21) complies with Blakely as long as the State relies on a defendant's prior convictions to establish the criminal history of conduct similar to the present offense. In this case, the record shows that the State supported this aggravator primarily with three prior convictions for drug offenses that included the two prior felonies. Teasley conceded this aggravating factor as well.
118 P.3d 1080 (Alaska App. 2005).
Id. at 1084.
Because Judge Card found two aggravators that complied with Blakely, the Blakely rule is satisfied. On this basis, we affirm the superior court's decision to deny Teasley's Rule 35(a) motion. Conclusion
See Rutherford v. State, 605 P.2d 16, 21 n. 12 (Alaska 1979) ("[An appellate] court may affirm a trial court's ruling even on different grounds from those advanced by the trial court as the basis for that ruling."); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961) (same); Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992) (same).
Teasley's sentence is AFFIRMED.