Opinion
Court of Appeals No. A-9419.
December 6, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court No. 4FA-90-764 Cr.
Appearances: Morgan White and Linda K. Wilson, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, 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
Raymond D. Carr was convicted of three counts of first-degree sexual abuse of a minor for engaging in various forms of sexual penetration with his stepdaughter, who was six and seven years old at the time. We affirmed Carr's= convictions in Carr v. State, 840 P.2d 1000 (Alaska App. 1992).
In 2005, Carr filed a motion under Alaska Criminal Rule 35(a), seeking a "correction" of his sentence. However, Carr's underlying assertion was that his sentence should be clarified: Carr asked the superior court to expressly declare that Carr's three suspended terms of imprisonment (one for each count of sexual abuse) were imposed concurrently. Carr's sentencing judge, Superior Court Judge Niesje J. Steinkruger, reviewed the sentencing record and concluded that Carr's suspended terms of imprisonment had been imposed consecutively, not concurrently. The judge therefore denied Carr's motion. Carr appeals this ruling.
Carr raises one other claim in this appeal: he asserts that he was sentenced in violation of the Sixth Amendment right to jury trial announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Carr was subject to a presumptive term of 8 years' imprisonment for each count of first-degree sexual abuse. Judge Steinkruger, relying on aggravating factors that were not submitted to a jury, sentenced Carr to three terms of imprisonment that exceeded this 8-year presumptive term. Carr argues that this was error, and that his sentences must be vacated.
For the reasons explained here, we agree with Carr that his suspended terms of imprisonment must be deemed concurrent rather than consecutive. However, we conclude that the Blakely error in Carr's sentencing proceeding was harmless beyond a reasonable doubt.
Underlying facts
As explained above, Carr was convicted of three counts of first-degree sexual abuse of a minor. Carr was a first felony offender. At the time of Carr's crimes, first felony offenders convicted of first-degree sexual abuse faced a presumptive term of 8 years' imprisonment.
Former AS 12.55.125(i)(1) (pre-September 2003 version). Here is the pertinent wording of that former statute: (i) A defendant convicted of sexual assault in the first degree or sexual abuse of a minor in the first degree may be sentenced to a definite term of imprisonment of not more than 30 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155 — 12.55.175:
(1) if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, eight years;
(2) if the offense is a first felony conviction, and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, 10 years[.]
To justify a sentence exceeding this 8-year presumptive term, the State proposed five mitigating factors under AS 12.55.155(c). One of these factors was aggravator (c)(18)(A) — that Carr's offenses were committed upon a victim who lived with Carr in the same dwelling. Although Carr opposed most of the State's proposed aggravators, he conceded aggravator (c)(18)(A).
Judge Steinkruger found that the State had proved a total of four aggravating factors — including the one that Carr had conceded, (c)(18)(A).
Based on these aggravators, Judge Steinkruger imposed three sentences that each exceeded the presumptive term. On Counts I and II, Judge Steinkruger increased the presumptive term by adding 2 years of suspended imprisonment: that is, she sentenced Carr to 10 years with 2 years suspended. And on Count III, Judge Steinkruger sentenced Carr to 12 years' imprisonment with 2 years suspended — i.e., 10 years to serve.
In her sentencing remarks, Judge Steinkruger explained that she intended to make Carr's three sentences partially consecutive. With regard to the "time to serve" component of the three sentences, Judge Steinkruger specified the amount of jail time that would be served consecutively and the amount that would be served concurrently. However, Judge Steinkruger failed to address the issue of whether the suspended portions of Carr's three sentences were being imposed consecutively or concurrently:
The Court: I [have decided] that a portion of the sentences shall be consecutive. . . . The legislative intent for consecutive sentences is now obvious. . . . [W]hile consecutive sentences are not mandatory under the statute [that applies to Carr], . . . the legislature has [stated that] some portion [is] required to be [consecutive] in . . . future [cases].
In [deciding upon] consecutive sentences, I've taken . . . into account [Carr's] very low rehabilitat[ive] potential. In imposing consecutive sentences greater than [Carr] would receive [for a single count], I find that it's necessary to protect the public, and that Mr. Carr lack[s] much potential for rehabilitation. . . .
I'm going to . . . start with Count III. . . . Count III is the fellatio — clearly the most serious and most prolonged count. I'm going to impose a sentence of 12 years with 2 suspended [on Count III].
Count II — a sentence of 10 years with 2 suspended. And Count I — [another] sentence of 10 years with 2 suspended. [On] Count II, 7 years are to be concurrent with Count III, and 1 year is to be consecutive. [Likewise, on] Count I, 7 years is to be concurrent with Counts II and III, and 1 year is to be consecutive to Counts II and III — for a total of 12 years to serve.
Judge Steinkruger made no statement concerning her intentions with regard to Carr's three 2-year suspended terms of imprisonment.
Because Judge Steinkruger did not affirmatively make Carr's suspended terms of imprisonment consecutive, they are concurrent
In 2004, the Alaska Legislature made extensive changes to the law relating to the imposition of consecutive and concurrent sentences. However, Carr was sentenced under the pre-2004 law. In Baker v. State, 110 P.3d 996, 1002 (Alaska App. 2005), and again in Paige v. State, 115 P.3d 1244, 1246-48 (Alaska App. 2005), we construed the pre-2004 law as incorporating a presumption in favor of concurrent sentences.
For cases governed by the pre-2004 law, the test is whether the "[sentencing] judge's remarks, taken as a whole, . . . clearly show the judge's intent to impose consecutive sentences". If not, the sentences will be deemed concurrent.
Paige, 115 P.3d at 1246.
Id. at 1247; Baker, 110 P.3d at 1002.
Here, Judge Steinkruger clearly indicated her intention that 1 year of Carr's sentences on Counts I and II should each be served consecutively to his sentence on Count III, for a total of 12 years to serve. Judge Steinkruger likewise clearly indicated her intention that the remainder of Carr's time to serve on Counts I and II ( i.e., 7 years on each count) should be served concurrently to each other and concurrently to the sentence on Count III.
But Judge Steinkruger was silent with respect to her intentions as to the suspended portions of Carr's sentences on Counts I, II, and III. She did not say that these suspended terms of imprisonment were concurrent, nor did she say that they were consecutive.
The State points to various parts of the judge's sentencing remarks which imply, or suggest, that she wished to impose this suspended time consecutively. But these implications and suggestions are not sufficient. The test, as we explained above, is whether the judge's remarks " clearly show the judge's intent[ion] to impose consecutive sentences".
Here, the record contains no clear indication of the judge's intention to impose the suspended terms of imprisonment consecutively. Thus, under the rule announced in Baker and confirmed in Paige, these portions of Carr's sentences must be deemed concurrent.
The Blakely error at Carr's sentencing was harmless beyond a reasonable doubt
Under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a defendant is entitled to demand a trial by jury, and proof beyond a reasonable doubt, on any issue of fact (other than a prior conviction) which, if found against the defendant, will increase the defendant's potential maximum sentence. The Blakely right of jury trial applied to Carr's sentencing because (1) in the absence of aggravating factors, the superior court could sentence Carr to no more than the 8-year presumptive term, but (2) if the State proved one or more aggravating factors, the superior court could sentence Carr to any term of imprisonment up to the 30-year statutory maximum.
As explained above, Judge Steinkruger found four aggravating factors in Carr's case. None of these aggravators was based on Carr's prior criminal convictions, and none of them flowed directly from the jury's verdicts finding Carr guilty of first degree sexual abuse of a minor. However, Carr conceded aggravator (c)(18)(A). That is, Carr conceded that the victim of his crimes, his seven-year-old stepdaughter, was a member of his household.
In Cleveland v. State, 143 P.3d 977 (Alaska App. 2006), we held that, under Alaska's pre-March 2005 presumptive sentencing law, a single Blakely-compliant aggravating factor was sufficient to support a sentence above the specified presumptive term. Thus, if the superior court properly found aggravator (c)(18)(A), any error with respect to the other three aggravators would be harmless.
In Paige v. State, 115 P.3d at 1248, we held that a sentencing judge does not commit plain error by relying on an aggravator that the defense expressly concedes. As we acknowledged in Paige, "[o]ne might conceivably argue that, given the . . . decision in Blakely, [a defendant] should not be held to [a pre- Blakely] concession of . . . aggravating factors." Id. But Carr has neither identified nor briefed this issue.
Nonetheless, Paige is not dispositive of Carr's case — because Carr directly litigated his Blakely claim under Criminal Rule 35(a). Thus, Carr need not show "plain error" in this appeal; he need only show error.
But we have repeatedly held that a Blakely error is not reversible error if it is harmless beyond a reasonable doubt — i.e., if there is no reasonable possibility that a jury would have resolved the contested issue of fact in the defendant's favor. That is the situation here.
Tyler v. State, 133 P.3d 686, 689 (Alaska App. 2006); Snelling v. State, 123 P.3d 1096, 1099 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005).
As we noted when we decided Carr's direct appeal, Carr and the victim's mother, Sandra Y., "lived together for many years". The couple had two children together, but the victim of Carr's offenses was Sandra Y.'s seven-year-old daughter from an earlier relationship. Our opinion in Carr explains that, in 1988, both Carr and Sandra Y. were jailed for various crimes — and that, as a consequence, all three children were placed in foster care. Thus, although our opinion in Carr does not directly state that Carr and his stepdaughter lived in the same household, this fact can readily be inferred from our background discussion of his case.
Carr, 840 P.2d at 1002.
Id.
Id.
The synopsis of the facts contained in our opinion in Carr is the sole source of our information on this point. Carr did not designate a transcript of his trial when he filed the present appeal, so we do not know what evidence was presented on this point during Carr's trial.
It is Carr's burden to present us with a record that is sufficient to allow us to meaningfully assess whether Carr suffered prejudice as a result of the Blakely error he complains of. Thus, even if one might conceivably dispute whether Carr and his victim lived in the same household, Carr's failure to supply us with information on this point means that he has failed to establish a reasonable possibility that he was prejudiced by the Blakely error he complains of — i.e., failed to establish a reasonable possibility that he and his victim did not live in the same household, that this fact was actually in dispute, and that this dispute might have been resolved in Carr's favor if the superior court had submitted this question of fact to a jury under a "beyond a reasonable doubt" standard of proof.
SeeKetchikan Retail Liquor Dealers Ass'n v. Alcoholic Beverage Control Board, 602 P.2d 434, 438-39 (Alaska 1979); Parrish v. State, 132 P.3d 1172, 1175-76 (Alaska App. 2006); Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003); Jackson v. State, 31 P.3d 105, 110 (Alaska App. 2001) (all holding that a party's failure to designate a record to support the party's claims justifies a reviewing court in deciding those claims against the party). See also Miscovich v. Tryck, 875 P.2d 1293, 1304 (Alaska 1994) ("It is well established that a party's failure to designate portions of the record that are necessary to allow the determination of a point on appeal will amount to a waiver or abandonment of that point.").
For these reasons, we conclude that any Blakely error in Carr's sentencing proceedings was harmless beyond a reasonable doubt. Conclusion
For the reasons explained here, we conclude that the suspended portions of Carr's three sentences are concurrent. We REVERSE the superior court's ruling on this issue. Carr is entitled to ask the superior court to issue an amended judgement that expressly clarifies this point.
However, we reject Carr's Blakely attack on his sentences. We AFFIRM the superior court's ruling on this latter issue.