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finding any Blakely error harmless given simultaneous probation revocation based on new offenses for which defendant was being sentenced
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Court of Appeals No. A-8855.
July 18, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-02-6030 Cr.
Sharon Barr, 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 Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
On July 6, 2002, Garrett M. Bowley, who was driving under the influence, struck another vehicle at the intersection of DeBarr Road and Airport Heights Drive in Anchorage. The driver of the other vehicle was seriously injured, and the passenger in that vehicle was killed. Bowley's truck toppled over during the collision; it landed on its side, with Bowley's leg pinned underneath. Two bystanders lifted the truck enough to allow Bowley to free his leg, and then Bowley walked away from the scene — leaving one of his shoes underneath the truck.
About two hours later, a police officer found Bowley in the neighborhood north of DeBarr Road. At that time, Bowley was barefoot; that is, he had removed and discarded his other shoe. Bowley told the officer that he had been carjacked near the intersection of Lake Otis Parkway and 15th Avenue, and that the people who robbed him of his vehicle had also taken his shoes.
(DeBarr Road becomes 15th Avenue as one proceeds west from the intersection with Airport Heights Drive. Lake Otis Parkway is the next major intersection in that direction.)
Bowley was taken to a hospital, where his blood alcohol level was tested at .11 percent about two and a half hours after the collision. The police found Bowley's shoe in a clump of trees in a residential backyard a few blocks from the collision site.
Based on this incident, Bowley was convicted of manslaughter (for causing the death of the passenger) and first-degree assault (for seriously injuring the driver). In addition, Bowley was convicted of driving under the influence, leaving the scene of an injury accident and failing to render aid after the accident, and tampering with evidence (for hiding his shoe).
In this appeal, Bowley argues that the evidence was insufficient to support a reasonable conclusion that he caused the collision. Thus, Bowley contends, his convictions for manslaughter and first-degree assault must be reversed.
Bowley's argument on this issue rests on the assertion that the testimony of various witnesses was not credible, and that other aspects of the evidence should be interpreted in a light favorable to the defense. But when an appellate court assesses the legal sufficiency of the evidence to support a criminal conviction, we are obliged to evaluate that evidence in the light most favorable to upholding the jury's decision. Viewing the evidence presented at Bowley's trial in that light, the evidence is sufficient to support a reasonable conclusion that Bowley caused the collision by running a red light — and that, accordingly, he is accountable for the resulting injury of the driver and the death of the passenger.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Wells v. State, 102 P.3d 972, 974 (Alaska App. 2004); Howard v. State, 101 P.3d 1054, 1058 (Alaska App. 2004).
Bowley also argues that his conviction for evidence tampering is not supported by sufficient evidence. In particular, Bowley claims that the State failed to present sufficient evidence to support the conclusion that, when Bowley discarded his shoe in the clump of trees in the residential yard, he was trying to "suppress" or "conceal" the shoe, or that he was acting "with intent to impair [the] verity or availability [of the shoe] in . . . a criminal investigation". See AS 11.56.610(a)(1).
Again, however, Bowley's argument rests on a view of the evidence that favors him. Viewing the evidence in the light most favorable to upholding the jury's verdict, Bowley knew that one of his shoes was left behind at the scene of the collision, and he further knew that this shoe would identify him if he was found wearing its mate; so Bowley hid his remaining shoe, and then he lied to the police about how he lost his shoes. In other words, the jury could reasonably conclude that, when Bowley discarded his shoe, he acted with the culpable mental state specified in the evidence tampering statute. Bowley's remaining appellate claims all involve sentencing issues. The underlying facts of Bowley's sentencing
Bowley had a prior felony conviction from 2001 for fourth-degree controlled substance misconduct. In that prior case, Bowley received a suspended imposition of sentence, and he was placed on 5 years' probation. Bowley was still serving that probation when he committed the offenses in the present case. In the present case, Bowley's two most serious offenses, manslaughter and first-degree assault, are class A felonies. Because Bowley was a second felony offender for purposes of Alaska's presumptive sentencing law, he faced separate 10-year presumptive terms of imprisonment for the manslaughter conviction and the first-degree assault conviction. He also faced a 2-year presumptive term for the class C felony of evidence tampering.
AS 11.41.120(b) and AS 11.41.200(b), respectively.
Former AS 12.55.125(c)(3) (pre-March 2005 version).
AS 11.56.610(b) and former AS 12.55.125(e)(1) (pre-March 2005 version).
The State alleged one aggravating factor that applied to Bowley's conviction for manslaughter: AS 12.55.155(c)(4) — that Bowley used a dangerous instrument ( i.e., his truck) in the commission of the offense. (This aggravator did not apply to Bowley's conviction for first-degree assault under AS 11.41.200(a)(1), because use of a dangerous instrument is an element of that crime.)
In addition, the State alleged two other aggravators that applied to both Bowley's conviction for manslaughter and his conviction for first-degree assault: (c)(6) — that Bowley's conduct endangered three or more persons ( i.e., the two occupants of the other car, plus the two passengers riding with Bowley); and (c)(10) — that Bowley's conduct was among the most serious within the definitions of manslaughter and first-degree assault.
Finally, the State alleged a fourth aggravator that applied to Bowley's convictions for manslaughter, first-degree assault, and evidence tampering: (c)(20) — that Bowley was on felony probation at the time of his crimes.
At Bowley's sentencing hearing, his attorney conceded all of these aggravating factors except (c)(10) (conduct among the most serious).
Superior Court Judge Michael L. Wolverton found all four aggravators. However, he declared that he placed particular weight on aggravator (c)(20) — that is, on the fact that Bowley was on felony probation at the time of his present offenses. Judge Wolverton explained that he thought aggravator (c)(20) was particularly important:
The Court: We make great efforts to avoid having people unnecessarily jailed, and we have felony probation officers and parole officers involved [in their rehabilitation], trying to get [these] people straightened out. And when that [rehabilitative effort] doesn't [succeed], and then the results are so horrific, I think that needs to be a sentencing component that serves to enhance [Mr. Bowley's] sentence.
Judge Wolverton also declared that he believed Bowley should receive a significant consecutive sentence for the offense of leaving the scene of the injury accident without rendering assistance to the victims — "because [Bowley's act of] simply taking off under [these] circumstances [is] something that this community would strongly condemn".
As explained above, Bowley faced 10-year presumptive terms for both the manslaughter and the first-degree assault. Based on the State's proof of the aggravating factors, Judge Wolverton increased each of these two sentences by adding 10 years of suspended imprisonment. That is, Bowley received 20 years with 10 years suspended for each of these offenses.
Judge Wolverton ordered that 3 years of the "time to serve" portions of these sentences would be consecutive, and that the suspended portions of these sentences would be entirely consecutive. Thus, for the offenses of manslaughter and first-degree assault, Bowley received a composite sentence of 13 years to serve and an additional 20 years suspended.
Judge Wolverton then sentenced Bowley to a consecutive sentence of 10 years with 6 years suspended — i.e., 4 years to serve — for the offense of leaving the scene of an injury accident without rendering assistance. The judge also imposed an unadjusted 2-year presumptive term for evidence tampering, but he ordered that this sentence would be concurrent.
With regard to the misdemeanor of driving under the influence, Judge Wolverton imposed a consecutive 30 days with 27 days suspended (72 hours to serve).
In sum, Bowley received a total sentence of 17 years and 3 days to serve, plus another 28 years and 27 days suspended, for his current offenses.
(In addition, Judge Wolverton revoked Bowley's SIS probation from his 2001 conviction for fourth-degree controlled substance misconduct and sentenced Bowley to 2 years' imprisonment, all of it suspended. By law, this suspended imprisonment had to be imposed consecutively to Bowley's other sentences. Bowley does not challenge this aspect of his sentence.)
See former AS 12.55.025(e) (pre-2004 version); Jackson v. State, 31 P.3d 105, 107-08 (Alaska App. 2001) (under former AS 12.55.025(e), when a defendant was sentenced for a new crime and also faced revocation of probation for a previous crime, the sentences had to be imposed consecutively).
At the end of his sentencing remarks, Judge Wolverton declared that he was "going to rule that . . . 12 years of [Bowley's 17 years to serve] will be presumptive". But as we explained in Reyes v. State, 978 P.2d 635, 641-42 (Alaska App. 1999), a sentencing judge has no authority to decide whether a defendant's sentence of imprisonment will be "presumptive". The status of a sentence of imprisonment as either "presumptive" or "non-presumptive" is not a matter of judicial discretion; rather, it is set by statute.
Alaska's presumptive sentencing law governed Bowley's sentencing for manslaughter, first-degree assault, and evidence tampering, so the three sentences that Bowley received for those crimes are "presumptive". On the other hand, Bowley's sentence of 4 years to serve for failing to render assistance at the scene of an injury accident is not presumptive — because this offense falls outside the felony classification scheme enacted in Titles 11 and 12. Thus, out of Bowley's total of 17 years to serve for his current offenses, 13 years are presumptive.
Bowley's argument that his sentencing procedure violated the right to jury trial announced in Blakely v. Washington
Bowley was sentenced on June 3, 2004. Three weeks later, the United States Supreme Court announced its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
In August 2004, Bowley filed the first of a series of motions claiming that his sentence was illegal. Bowley argued that, because of the Sixth Amendment right to jury trial announced in Blakely, his sentences for manslaughter and first-degree assault could not lawfully exceed the 10-year presumptive terms that applied to these offenses (because Bowley was a second felony offender) unless the State's proposed aggravating factors were submitted to a jury and proved beyond a reasonable doubt.
Judge Wolverton rejected Bowley's argument. The judge ruled that Blakely did not apply to Bowley's case because Bowley was sentenced before the Blakely decision was announced.
In this appeal, Bowley again argues that his sentence violates Blakely because his terms of imprisonment for manslaughter and first-degree assault were increased beyond the applicable presumptive term (10 years' imprisonment) based on aggravating factors that were not presented to a jury.
The Blakely decision does, in fact, apply to Bowley's case. However, Bowley made no contemporaneous objection to the lack of a jury trial regarding the State's proposed aggravators. Rather, his jury trial argument was raised for the first time in the post-sentencing motion under Criminal Rule 35(a). Because of this, Bowley must now show that any violation of Blakely was plain error.
See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), which holds that any new rule of federal constitutional law applies to all defendants, both state and federal, whose convictions are not final ( i.e., whose cases are still pending on direct review or certiorari review) when the new rule is announced.
See Lockuk v. State, 153 P.3d 1012, 1017-18 (Alaska App. 2007).
(Bowley argues that Blakely errors are "structural" — i.e., that they automatically require reversal of a defendant's sentence. The United States Supreme Court rejected this argument in Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). In Recuenco, the Supreme Court held that Blakely errors are subject to harmless error analysis under the "harmless beyond a reasonable doubt" test adopted in Chapman v. California. Recuenco, 126 S.Ct. at 2550, 2553. Thus, a Blakely error — i.e., an erroneous failure to submit an aggravating factor to a jury — is harmless beyond a reasonable doubt if there is no reasonable possibility that a jury would have found in the defendant's favor on the challenged aggravator.)
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
As explained above, Bowley's defense attorney explicitly conceded three of the State's proposed aggravators — all of the aggravators except (c)(10). We have repeatedly held that it is not plain error for a sentencing judge to rely on aggravating factors that were expressly conceded by the defense attorney in a pre- Blakely sentencing proceeding.
Peltola v. State, 117 P.3d 771, 773 (Alaska App. 2005); Paige v. State, 115 P.3d 1244, 1248 (Alaska App. 2005). See also Woodbury v. State, 151 P.3d 528, 531 (Alaska App. 2007) (it is not plain error for a judge to rely on an aggravating factor expressly conceded by the defense attorney in a post- Blakely sentencing proceeding).
Moreover, we have repeatedly held that even when Blakely would require an aggravating factor to be submitted to a jury, the error is harmless if the evidence pertaining to that aggravating factor is not subject to reasonable dispute — i.e., if there is no reasonable possibility that a jury would have found in the defendant's favor if the issue had been submitted to a jury.
Active v. State, 153 P.3d 355, 367 (Alaska App. 2007); Ned v. State, 119 P.3d 438, 443-44 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005).
In particular, in Snelling v. State, 123 P.3d 1096, 1098-99 (Alaska App. 2005), we held that any potential Blakely error with respect to aggravator (c)(20) (defendant on felony probation or parole when the defendant committed the present offense) is harmless if it is undisputed that the defendant was indeed on felony probation or parole when the defendant committed the new offense.
That is the situation here. There is no dispute that Bowley was on felony probation from his 2001 drug conviction when he committed the offenses in the present case. In fact, at the sentencing hearing, Bowley's attorney explicitly conceded that Judge Wolverton would have to revoke Bowley's probation because of his new offenses, and that Bowley's probation revocation sentence would have to run consecutively to his sentences for these new offenses. Thus, any Blakely error with respect to aggravator (c)(20) is harmless.
And because any Blakely error with respect to aggravator (c)(20) is harmless, Bowley's sentence does not violate Blakely. This conclusion follows from our decision in Cleveland v. State, 143 P.3d 977, 984-85, 988 (Alaska App. 2006) — where we held that, under Alaska's pre-March 2005 presumptive sentencing law, the proof of a single aggravator pertaining to a particular offense was sufficient to establish a sentencing judge's authority to exceed the applicable presumptive term for that offense.
Bowley also argues that, because the concession of an aggravating factor involves a defendant's giving up the right to jury trial, a sentencing judge should not be allowed to rely on a defense attorney's concession of an aggravator, but must instead address the defendant personally and have the defendant personally waive their right to jury trial with respect to the aggravator.
Again, this claim was not raised until after the sentencing, and therefore Bowley must prove plain error. In Cooper v. State, 153 P.3d 371, 372-73 (Alaska App. 2007), we held that it was not plain error for a judge to rely on the defense attorney's concession without addressing the defendant separately and having the defendant personally waive their right to jury trial on the aggravator.
For these reasons, we conclude that the superior court correctly rejected Bowley's claim that his sentence violated Blakely. Bowley's arguments under Alaska law
Bowley argues that the State's proof of aggravator (c)(6) (threat of harm to three or more people) was legally insufficient.
As noted above, the State claimed that aggravator (c)(6) was established because Bowley's driving endangered four people — the two people in the car that Bowley collided with, and the two passengers in Bowley's own car. Judge Wolverton found aggravator (c)(6) on this basis. But this violates the rule that we announced in Juneby v. State, 641 P.2d 823, 842-43 (Alaska App. 1982) — the rule that a sentencing court should not rely on an aggravating factor that is based on conduct for which the defendant is being separately sentenced.
Here, Bowley was separately convicted of manslaughter for killing one occupant of the other car (the passenger) and first-degree assault for seriously injuring the other occupant of that car (the driver). Thus, Judge Wolverton could not rely on Bowley's act of endangering these two people as a basis for finding aggravator (c)(6). On appeal, the State concedes error on this point.
Nevertheless, the State argues that aggravator (c)(6) is supported by other evidence in the case. Specifically, the State claims that it is obvious that Bowley's driving must have endangered every other motorist along that stretch of road.
This assertion is perhaps plausible, but we do not believe that it is obvious. Moreover, Judge Wolverton never considered whether aggravator (c)(6) might be justified on this alternative basis. We therefore vacate the superior court's finding of aggravator (c)(6).
Bowley also argues that Judge Wolverton erred when he found aggravator (c)(10) — conduct among the most serious within the definition of the offense. Bowley concedes that his criminal conduct was serious, but he argues that it was typical of the range of conduct covered by the manslaughter and first-degree assault statutes. The State does not address this argument in its brief.
At Bowley's sentencing hearing, the prosecutor argued that aggravator (c)(10) was established because "the defendant . . . display[ed] extreme indifference [by] his conduct: speeding, running through a red light, [and] driving drunk". However, it is unclear how these facts distinguish Bowley's conduct from the conduct that would be present in a typical drunk-driving manslaughter / assault. When Judge Wolverton announced his ruling that the State had proved aggravator (c)(10), the judge offered no explanation as to why he concluded that Bowley's conduct was among the most blameworthy within the definitions of manslaughter and first-degree assault.
The prosecutor also argued that Bowley's conduct was atypically serious because "[Bowley] had plenty of prior notice that he needed to drive within the speed limit: [he] had been, in fact, just recently cautioned by his probation officer to slow down."
In past cases, we have recognized that when a homicide or an assault arises from an act of driving under the influence, the defendant's conduct is more blameworthy if the defendant was warned earlier that they were too intoxicated to drive. However, the facts of Bowley's case appear to be different. There is no indication (or, at least, no clear indication) that Bowley was warned that he was too drunk to drive, or that he was otherwise engaging in dangerous driving, shortly before the collision.
See Foxglove v. State, 929 P.2d 669, 671 (Alaska App. 1997); Pusich v. State, 907 P.2d 29, 39-40 (Alaska App. 1995); Puzewicz v. State, 856 P.2d 1178, 1180 (Alaska App. 1993); Pears v. State, 672 P.2d 903, 913 (Alaska App. 1983).
Immediately after the prosecutor asserted that Bowley had been "cautioned by his probation officer to slow down", Bowley's attorney responded that, based on the information in the pre-sentence report, "it seems that [Bowley's] probation officer was giving him a travel pass and just said [to him], 'Don't drive too fast on the way back; don't get a speeding ticket.'" The defense attorney added that there was "[no] implication that the probation officer was saying [to Bowley], 'You drive too fast all the time and you need to slow down.'"
As we mentioned above, Judge Wolverton did not explain why he concluded that the State had proved aggravator (c)(10). Thus, the judge never made findings concerning this disputed issue of fact (whether, or in what context, Bowley's probation officer had warned Bowley about dangerous driving).
For these reasons, we vacate the superior court's finding of aggravator (c)(10). Finally, Bowley argues that his composite sentence for his present offenses — 17 years (and 3 days) to serve, with an additional 26 years (and 27 days) suspended — is excessive. Because we have vacated the superior court's findings with respect to two of the four aggravators in this case, we believe that it would be premature for us to decide Bowley's excessive sentence claim. Instead, we remand Bowley's case to the superior court.
Judge Wolverton should reconsider whether the facts of Bowley's case establish aggravator (c)(6) and aggravator (c)(10). (The judge can make this decision himself, under the "clear and convincing evidence" test prescribed by the pre-March 2005 presumptive sentencing law, because — as we explained above — Bowley's sentence does not violate Blakely.)
If Judge Wolverton again concludes that the State has proved both of these aggravators, the judge should enter findings in support of that conclusion and transmit those findings to this Court.
If Judge Wolverton concludes that the State has failed to prove either or both of these aggravators, then the judge should reconsider Bowley's sentences for manslaughter and first-degree assault. (These are the two sentences that were increased based on the State's proof of aggravating factors.) In this situation, Judge Wolverton will not be obliged to alter these sentences, but he should actively consider whether those sentences should be reduced, given the State's failure to prove the aggravators. Again, Judge Wolverton should then transmit his findings to this Court.
Judge Wolverton shall conduct the above-described proceedings, and shall transmit his findings to this Court, within 90 days of this opinion. The parties shall then have 30 days to file simultaneous supplemental memoranda addressing Judge Wolverton's findings.
After we have received Judge Wolverton's findings and the supplemental memoranda of the parties (if any), we will resume our consideration of Bowley's sentence appeal.
Bowley's convictions are AFFIRMED, and the superior court's ruling on Bowley's motion to correct an illegal sentence under Criminal Rule 35(a) is likewise AFFIRMED. However, this case is REMANDED to the superior court for the renewed sentencing proceedings just described. We retain jurisdiction of this appeal.