Opinion
Court of Appeals Nos. A-9157.
April 11, 2007.
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge., Trial Court No. 2NO-03-593 CR.
Linda K. 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 David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
James Carlisle argues that the superior court improperly sentenced him to an aggravated presumptive term on his conviction for third-degree assault because the court did not submit the aggravating factors to a jury. Carlisle contends that the court's reliance on those judge-found factors violated Blakely v. Washington and the Alaska Constitution.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Because we conclude that more than one of the challenged aggravating factors are Blakely-compliant, and that relying on prior convictions to establish an aggravating factor does not violate the Alaska Constitution, we affirm Carlisle's sentence.
Background facts and proceedings
On August 5, 2003, the police arrested Carlisle for threatening his wife and eleven-year-old daughter with a gun. Based on this conduct, the grand jury indicted Carlisle on two counts of third-degree assault ]Because he was on bail release from a previous misdemeanor charge at the time, the State also charged Carlisle with violating conditions of release.
AS 11.41.220(a)(1)(A).
AS 11.56.757.
Carlisle entered a plea agreement in which he would plead no contest to one count of third-degree assault and the other charges would be dismissed. After his release on bail, and before sentencing, Carlisle was involved in incidents that led to a number of other charges, including fourth-degree criminal mischief. At his sentencing hearing, Carlisle pleaded no contest to third-degree assault, fourth-degree criminal mischief, and violation of conditions of release (as charged in the original complaint). All other charges were dropped. There was no agreement on the sentence to be imposed.
AS 11.46.484(a).
Carlisle had a prior conviction for second-degree sexual abuse of a minor, a class B felony. Third-degree assault is a class C felony and, as a second felony offender under the pre-2005 sentencing law, Carlisle faced a 2-year presumptive term with a 5-year maximum term.
AS 11.41.436(a) (b).
AS 11.41.220(d).
See former AS 12.55.125(e) (pre-March 2005 version).
Based on the information in the presentence report, Superior Court Judge Ben Esch identified five potential statutory aggravating factors codified in AS 12.55.155: (c)(7) (Carlisle has a prior felony conviction of a more serious class than the present offense); (c)(8) (Carlisle's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior); (c)(18)(A) (Carlisle's offense was a felony specified in AS 11.41 and committed against a spouse); (c)(18)(C) (Carlisle's crime of domestic violence was committed in the presence of a child under sixteen years of age); and (c)(19) (Carlisle's prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult).
At sentencing, Carlisle did not object to any of the information contained in the presentence report or to any of the potential aggravating factors identified by Judge Esch. Judge Esch found all five aggravators. He imposed 3 years and 6 months' imprisonment with 1 year suspended for the third-degree assault. For the misdemeanors, Judge Esch imposed an additional 270 days to be served consecutively, resulting in a composite sentence of 39 months to serve.
The written judgment of conviction was distributed on June 23, 2004, one day before the United States Supreme Court issued its decision in Blakely. The parties agree that Blakely applies to Carlisle's case because, since Carlisle had thirty days after Judge Esch's written judgment was distributed to file an appeal, his conviction was not final when Blakely was decided. Blakely held that the Sixth Amendment guarantees a criminal defendant a right to jury trial on all factual issues (other than prior convictions) that are necessary to establish a sentencing judge's authority to impose the sentence that the defendant received.
See Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S. Ct. 708, 712 n. 6, 93 L. Ed. 2d 649 (1987).
In February 2005, Carlisle filed a motion to correct an illegal sentence under Criminal Rule 35(a). Carlisle argued that, under Blakely, he was entitled to a jury trial on the aggravating factors and that Judge Esch violated his federal and state rights to jury trial because he did not submit the aggravating factors to a jury. He also argued that his failure to challenge the aggravators at sentencing did not constitute a valid waiver of his rights, and that Alaska's presumptive sentencing scheme was unconstitutional.
Judge Esch denied Carlisle's motion. Carlisle appeals.
Discussion
The State argues that Carlisle's sentence is not "illegal" within the meaning of Alaska Criminal Rule 35(a). But we have already held that a sentence imposed in violation of Blakely — that is, a sentence greater than would be authorized by the jury's verdict alone — is an "illegal sentence" for purposes of Criminal Rule 35(a). Because the superior court imposed an aggravated presumptive term, Carlisle is authorized to raise a Blakely claim under Rule 35(a).
Walsh v. State, 134 P.3d 366, 373-74 (Alaska App. 2006).
Carlisle argues that the Sixth Amendment requires that all aggravating factors, including prior convictions, be proved to a jury beyond a reasonable doubt. In Apprendi v. New Jersey, the United States Supreme Court held that when the maximum sentence for a defendant's crime hinges on an issue of fact other than the defendant's prior criminal convictions, the Sixth Amendment requires that issue of fact to be presented to, and decided by, a jury. And in Blakely, the Court announced that, for purposes of Apprendi, the maximum sentence permitted is the term a judge may impose " solely on the basis of the facts reflected in a jury verdict or admitted by the defendant." Thus, Apprendi and Blakely allow a sentencing judge to rely on a prior conviction to establish an aggravating factor at sentencing.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Blakely, 542 U.S. at 303, 124 S. Ct. at 2537 (emphasis in original).
In Cleveland v. State, we held that if at least one Blakely-compliant aggravating factor is established — that is, if "at least one aggravating factor . . . flows directly from the jury's verdict, or is admitted by the defendant, or is based on the defendant's prior convictions" — Blakely is satisfied and the sentencing judge is authorized to impose any sentence up to the statutory maximum.
143 P.3d 977 (Alaska App. 2006).
Id. at 984-85.
This court has repeatedly held that aggravator (c)(7) (defendant has a prior felony conviction of a more serious class than the present offense) fits within the Blakely prior conviction exception. In Milligrock v. State, we stated that " Blakely expressly exempts a defendant's prior convictions from the requirement of a jury trial. . . . [I]n the case of a prior conviction, the defendant's rights to jury trial and to proof beyond a reasonable doubt have already been honored." We concluded that, "[a]ssuming that there is no dispute as to the existence of those prior convictions, [aggravator (c)(7)] presents no problem under Blakely." And in Snelling v. State, we held that aggravator (c)(7) does not present a Blakely problem because the issue concerning whether one class of crimes is more serious than another class of crimes is a legal question for the sentencing judge, not an issue of fact for a jury. Thus, in Carlisle's case, under our decision in Cleveland, Blakely is satisfied because aggravator (c)(7) presented a question for Judge Esch, not for a jury.
118 P.3d 11 (Alaska App. 2005).
Id. at 15.
Id. at 16.
123 P.3d 1096 (Alaska App. 2005).
Id. at 1098.
We have also held in Greist v. State that aggravator (c)(19) (defendant's prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult) is Blakely-compliant because Alaska law gives juvenile offenders the right to a jury trial where the State must prove the delinquency petition beyond a reasonable doubt. Carlisle does not dispute that he has a juvenile adjudication for burglary. Thus, Bla ke ly is a lso sa tisfied with respect to agg ravator (c)(19).
121 P.3d 811 (Alaska App. 2005).
Id. at 814.
However, Carlisle argues that Judge Esch erred by relying on the presentence report to find aggravators (c)(7) and (c)(19). He contends that Shepard v. United States limits the materials a court may use to establish a prior conviction. In Shepard, the United States Supreme Court held that a court "is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Carlisle contends that this list is exclusive, and thus that a court may not rely on a presentence report to establish a prior conviction.
544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).
Id., 544 U.S. at 16, 125 S. Ct. at 1257.
However, at sentencing, Carlisle conceded that the criminal history described in his presentence report was accurate. Carlisle had an opportunity to review the contents of the report and object if he detected any errors. The State notes that if Carlisle had objected at trial, the State would have had an opportunity to present additional evidence to establish the prior convictions. He did not object at trial nor does he challenge the accuracy of the report in this appeal. Accordingly, Judge Esch's reliance on the presentence report was not error.
Carlisle next argues that relying on prior convictions to support an aggravating factor is prohibited by the Alaska Constitution. Carlisle raises this argument for the first time on appeal.
Even though we need not address this argument because it was not presented to the superior court, the argument is without merit. Carlisle urges us to extend the Alaska Supreme Court's rule in Donlun v. State to require that when a defendant is subject to presumptive sentencing, a prior conviction is an element of the charge that a jury must find beyond a reasonable doubt. However, we rejected this interpretation of Donlun in State v. Dague. Moreover, in Active v. State, we expressly rejected the argument that the Alaska Constitution guarantees a broader right to jury trial with respect to sentencing factors than the right to jury trial recognized in Blakely. We thus reject Carlisle's claim that a sentencing court violates the Alaska Constitution when relying on a prior conviction to support an aggravating factor.
See, e.g., Price v. Eastham, 128 P.3d 725, 731 (A laska 2006); Conkey v. State, 113 P.3d 1235, 1237 n. 6 (Alaska 2005); Gates v. Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991).
527 P.2d 472 (Alaska 1974).
143 P.3d 988, 994-98 (Alaska App. 2006).
__ P.3d __, Alaska App. Opinion No. 2086 (March 9, 2007), 2007 WL 706629.
Id., __ P.3d at __, Opinion No. 2086 at 30-31, 2007 WL 706629 at *____.
Carlisle also argues that even though his attorney did not contest the aggravating factors at trial, the superior court could not rely on the aggravating factors because he did not personally waive his right to a jury trial. We reject this claim because, as we discussed above, two of the aggravating factors in this case are Blakely-compliant and do not require a jury trial.
Finally, Carlisle argues that the prior conviction exception is not supported by recent United States Supreme Court cases, particularly Shepard, wherein Justice Clarence Thomas suggested that the prior conviction exception, as established by Almendárez-Torres v. United States, "has been eroded by this Court's subsequent Sixth Amendment jurisprudence." Carlisle urges us to take Justice Thomas's lead and find the prior conviction exception unconstitutional. However, we have already held in Tyler v. State that we will not anticipate future Supreme Court decisions, and we will continue to apply the prior conviction exception until the Court expressly abandons or modifies it. Conclusion
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
Shepard, 544 U.S. at 27, 125 S. Ct. at 1264 (Thomas, J., concurring).
133 P.3d 686 (Alaska App. 2006).
Id. at 689-90.
The judgment of the superior court is AFFIRMED.