Opinion
Court of Appeals No. A-9313.
April 4, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-96-6401 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
Frankie L. Chambers, faced with a hearing to revoke his probation from a 1997 third-degree assault conviction, claimed that his initial sentence violated Blakely v. Washington. In Blakely, the United States Supreme Court held that the Sixth Amendment to the United States Constitution guarantees a defendant the right to have a jury determine beyond a reasonable doubt any disputed factual issue, other than a prior conviction, which increases the defendant's potential maximum sentence. Chambers argues that at his initial sentencing, Superior Court Judge Milton M. Souter violated Blakely when he increased Chambers's sentence above the presumptive term based upon his attorney's concession of three aggravating factors. But we conclude that at least one of these aggravating factors was Blakely-compliant because it was based solely upon Chambers's uncontested record of prior convictions. We therefore uphold the conclusion of the superior court that Chambers's original sentence did not violate Blakely and that Chambers's probation could be revoked based upon this sentence.
AS 11.41.220(a)(1)(B).
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Factual and procedural background
Frankie L. Chambers was indicted on one count of assault in the second degree in September of 1996, following an incident where he attacked his girlfriend, D.B., and injured her with a knife. Chambers eventually pled no contest to a reduced charge of assault in the third degree, a class C felony. Under the sentencing provisions in effect at that time, Chambers was a third-felony offender and was subject to a 3-year presumptive term. If the State proved one or more aggravating factors, Chambers's sentence could be increased up to a maximum of 5 years.
AS 11.41.210(a)(1).
AS 11.41.220(a)(1)(B).
See former AS 12.55.125(e)(2).
Former AS 12.55.125(e).
The State alleged three aggravating factors for sentencing: (c)(8)- Chambers's prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior; (c)(15)- Chambers had three or more prior felony convictions; and (c)(18)(A)- Chambers's current offense was a felony against a person who was his "spouse, a former spouse, or a member of the same social unit comprised of those living together in the same dwelling." The presentence report confirmed that Chambers had three separate felony armed robbery convictions and a felony grand theft conviction, all from Florida in 1985. Chambers was also convicted in 1995 of misdemeanor domestic violence assault in Alaska.
AS 12.55.155(c).
Chambers, through his attorney, conceded all three aggravating factors. Superior Court Judge Milton M. Souter found all three aggravating factors. Judge Souter sentenced Chambers to 5 years with 18 months suspended. Judge Souter placed Chambers on probation for 10 years. Chambers appealed his sentence, claiming it was excessive. This Court affirmed his sentence.
Chambers v. State, Alaska App. Memorandum Opinion and Judgment No. 3719 (Dec. 10, 1997), 1997 WL 759683.
Chambers was released on probation in 1998. In 2000, the State filed a petition to revoke his probation, alleging that Chambers traveled to the North Slope for employment without prior permission from his probation officer and without obtaining a travel pass, and failed to report to his probation officer as required. The superior court found Chambers violated his probation and ordered Chambers to serve 5 days of the previously suspended time. In 2001, the State filed another petition to revoke Chambers's probation, based on Chambers's arrest for assault in the fourth degree. The court again found that Chambers had violated his probation and ordered Chambers to serve 24 days of the previously suspended time.
In September 2004, the State filed another petition to revoke probation, based on Chambers's violation of a restraining order. The petition was amended twice to eventually include allegations that Chambers violated a restraining order on two occasions and left Alaska without the permission of his probation officer.
While this petition was pending, Chambers filed a motion to correct an illegal sentence under Alaska Criminal Rule 35(a). Chambers argued that his sentence for assault violated Blakely v. Washington.
Superior Court Judge Philip Volland denied Chambers's motion. Judge Volland sentenced Chambers to serve 7 months of his previously suspended time. This appeal follows.
Why we uphold Judge Volland's decision denying Chambers's Criminal Rule 35(a) motion
Under the former sentencing provisions, Chambers faced a presumptive term of 3 years of imprisonment. The sentencing judge could not impose a sentence exceeding this 3-year term unless he found an aggravating factor. But once the sentencing judge found an aggravating factor, he was authorized to impose up to the 5-year statutory maximum on the assault conviction. Based upon the three aggravating factors that he found, Judge Souter imposed an aggravated presumptive sentence of 5 years with 18 months suspended. Chambers argues that Judge Souter violated Blakely when he found the aggravating factors without submitting them to a jury. But, as we pointed out in Cleveland v. State, a sentencing court could, consistent with Blakely, impose up to the maximum sentence if the court found even one Blakely-compliant aggravating factor.
See former AS 12.55.125(e)(2).
Former AS 12.55.125(e)(2) and former AS 12.55.155(a)(1).
Former AS 12.55.155(a)(1).
143 P.3d 977 (Alaska App. 2006).
Id. at 983-85.
One of the aggravators which Judge Souter found applied to Chambers's sentence was that "the defendant's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior." In Milligrock v. State, we held that this aggravating factor could be established, consistent with Blakely, when it was based upon at least two undisputed assault convictions. This is because Blakely only guarantees "the right to a jury trial . . . with regard to any disputed factual issue, other than a prior conviction, which increases the defendant's maximum sentence." In the present case, Chambers conceded the aggravator and the aggravator is based upon the undisputed fact that Chambers has several prior convictions which include assault as an element. Chambers did not challenge the presentence report containing his criminal history. Chambers had three convictions from Florida for armed robbery. The Florida armed robbery statute required assaultive behavior as a necessary element of the crime. (Despite the convictions being entered on the same date, it was undisputed at sentencing that the convictions were for three separate instances of armed robbery in Florida.) Chambers also had a fourth conviction involving assaultive behavior, for misdemeanor domestic violence assault in Alaska in 1995. Because aggravating factor (c)(8) was based solely upon Chambers's undisputed prior convictions, Judge Souter did not violate Blakely in finding this aggravating factor. Once he found this aggravator, Judge Souter was authorized to impose up to the 5-year maximum sentence.
AS 12.55.155(c)(8).
118 P.3d 11 (Alaska App. 2005).
Id. at 14-16.
Grohs v. State, 118 P.3d 1080, 1081 (Alaska App. 2005) (emphasis added) (citation omitted).
See Fla. Stat. Ann. § 812.13 (2006) (defining "[r]obbery"as "the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear") (emphasis added in parenthetical). The offense is considered "armed robbery" and is a first-degree felony if a firearm or other deadly weapon is used in the commission of the crime. Fla. Stat. Ann. § 812.13(2)(a) (2006).
Cleveland, 143 P.3d at 981-83.
Chambers argues against the continuing validity of the prior conviction exception to Blakely which we relied upon in Milligrock. But in Tyler v. State, we concluded that we are bound to follow this Supreme Court precedent "unless and until the United States Supreme Court actually modifies or eliminates this exception." Chambers also argues that the prior conviction exception is not valid under Alaska Constitutional law. We recently rejected this contention in Active v. State. Chambers also argues that Judge Souter erred in failing to obtain his personal waiver of his right to a jury trial on the aggravating factor. But because the aggravating factor fell within the prior conviction exception to the Blakely decision, Chambers had no right to a jury trial.
133 P.3d 686 (Alaska App. 2006).
Id. at 689-90.
___ P.3d ___, ___, Alaska App. Opinion No. 2086 at 32 (Mar. 9, 2007).
Since at least one of the aggravating factors which Judge Souter found was Blakely-compliant, he was authorized to impose up to the 5-year maximum sentence. Consequently, the sentence which Judge Souter imposed complied with Blakely. Judge Volland did not err in dismissing Chambers's motion.
Conclusion
The judgment of the superior court is AFFIRMED.