Opinion
Court of Appeals No. A-8934.
December 20, 2006.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben J. Esch, Judge, Trial Court No. 2KB-98-491 CR.
Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant (opening brief). Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant (reply brief and oral argument). Joshua P. Fink, Public Advocate, Office of Public Advocacy, Anchorage, aligned with the Appellant, as amicus curiae. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. M á rquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Henry Douglas pleaded no contest to robbery in the first degree, a class A felony, in August of 1999. Douglas was a second-felony offender for purposes of presumptive sentencing and faced a presumptive 10-year term of imprisonment under the pre-2005 sentencing code. Prior to sentencing, the State gave notice of its intent to rely on five aggravating factors: that Douglas was the leader of three or more persons who participated in the offense; that his conduct created a risk of imminent physical injury to three or more persons; that he knew the offense involved more than one victim; that he was a member of an organized group of five or more persons, and the offenses were committed to further the group's criminal objectives; and that he knowingly directed the conduct of the offense at a victim because of the victim's race. Douglas's counsel objected to the aggravators and argued that Douglas should be sentenced to the unadjusted presumptive term.
AS 11.41.500(a).
Former AS 12.55.125(c)(3).
AS 12.55.155(c)(3), (6), (9), (14), and (22).
At sentencing, Superior Court Judge Ben J. Esch found all of the State's proposed aggravating factors, except one. He sentenced Douglas to 18 years' imprisonment with 8 years suspended. Douglas appealed. The appeal was dismissed in April 2000.
AS 12.55.155(c)(9).
In 2004, the United States Supreme Court in Blakely v. Washington implemented the rule stated in Apprendi v. New Jersey: that the Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to have any disputed factual issue, ?other than . . . a prior conviction, . . . that increases the penalty for a crime beyond the prescribed statutory maximum . . . proved [to a jury] beyond a reasonable doubt." The Supreme Court defined '"statutory maximum not [as] the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional facts." In essence, Blakely created two distinct requirements: first, that any factor used to aggravate a sentence beyond the otherwise applicable maximum must be found by a jury; and second, that factor must be proved to the jury beyond a reasonable doubt.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63.
Blakely, 542 U.S. at 303-04, 124 S. Ct. at 2537 (emphasis in original) (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63).
See United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005).
In August 2004, in light of the Blakely decision, Douglas filed a pro se motion under Alaska Criminal Rule 35(a), arguing that his sentence was illegal because Judge Esch had increased his sentence above the 10-year presumptive term by relying on contested aggravating factors which the judge found by clear and convincing evidence. Douglas argued that, under Blakely, his presumptive sentence could only be increased if the State proved the aggravating factors to a jury beyond a reasonable doubt. Judge Esch denied the motion on the ground that Blakely did not apply retroactively to cases which were final before the Blakely decision was issued. Douglas appeals from that decision. In light of our decision in Smart v. State, we reverse.
146 P.3d 15 (Alaska App. 2006).
In Smart v. State, we concluded that, under Alaska law governing retroactivity, the Blakely requirement of proof beyond a reasonable doubt is completely retroactive. It is true that the defendant in Smart had an argument that Douglas does not have. Smart's conviction was final before the Supreme Court decided Blakely, but his conviction was not final at the time that the Supreme Court decided Apprendi v. New Jersey, a case which at least with hindsight foreshadowed Blakely. But the Smart decision did not rely on this distinction. Rather, the Smart decision concluded that, under Alaska retroactivity law, it would be fundamentally unfair to not give full retroactivity to the Blakely requirement of proof beyond a reasonable doubt. The reasoning of Smart clearly encompasses Douglas's case.
Id. at 35.
See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63.
Smart, 146 P.3d at 35.
By agreement, the parties to this appeal only addressed the retroactivity issues and did not otherwise address Douglas's sentence. Accordingly, the only issue before us is whether Blakely applies retroactively to Douglas's case. We have held that it does. Accordingly, the superior court's decision on the aggravating factors is REVERSED. We REMAND the case to the superior court for further proceedings on the contested aggravators.