Opinion
Court of Appeals No. A-8840.
March 22, 2006.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Trial Court No. 3PA-01-1919 Cr.
Herman G. Walker Jr., Law Offices of Lynda A. Limón, 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
Jason Geisler appeals his convictions on three counts of first-degree robbery, as well as the composite sentence that he received for these convictions.
AS 11.41.500(a)(1).
Geisler first contends that his grand jury indictment is invalid because the grand jury's deliberations were tainted by inadmissible hearsay evidence tending to show that Geisler's brother — and thus, potentially, Geisler himself — was involved in the commission of other crimes, including an abduction/murder.
Geisler next contends that his trial was flawed because the trial judge refused to allow Geisler's defense attorney to fully cross-examine the State's main witness, Shannon Stenhoff. (Stenhoff was one of Geisler's accomplices in the robberies, and he testified at Geisler's trial pursuant to a plea agreement with the State.)
Finally, Geisler attacks his sentence on two grounds. Geisler argues that his sentences for the three counts of robbery violate the rule that we announced in Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), and that was subsequently codified in former AS 12.55.125(k)(2) — the rule that a defendant convicted of a first felony offense should ordinarily receive no more time to serve than the presumptive term enacted by the legislature for a second felony offender convicted of the same offense. And Geisler argues that his robbery sentences are invalid under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the sentencing judge relied on aggravating factors that had not been proved to a jury.
As we explain in more detail below, we conclude that the challenged grand jury evidence was not hearsay. It is true that the challenged testimony dealt with out-of-court statements, but those out-of-court statements were not offered for the truth of the matters asserted in the statements. We further conclude that, although this evidence was potentially prejudicial to Geisler, the grand jury record shows that the grand jury's decision was not affected by this evidence.
With regard to Geisler's defense attorney's ability to cross-examine Shannon Stenhoff, the record shows that, with one possible exception (which we discuss in detail in this opinion), the trial judge never actually told Geisler's defense attorney that he could not cross-examine Stenhoff as he wished. Rather, the trial judge warned the defense attorney that, if he chose to cross-examine Stenhoff on certain topics, the judge would re-examine his pre-trial rulings that barred the State from introducing evidence of Geisler's affiliation with a criminal gang and evidence of Geisler's involvement in other crimes that were committed during the same spree as the three robberies in this case. In the face of the judge's warning, the defense attorney chose not to cross-examine Stenhoff on these topics. Thus, under State v. Wickham and Sam v. State, Geisler forfeited his right to challenge the judge's rulings on appeal.
State v. Wickham, 796 P.2d 1354, 1357-58 (Alaska 1990); Sam v. State, 842 P.2d 596, 598-99 (Alaska App. 1992).
With regard to the one possible exception that we noted in the preceding paragraph — that is, the one instance where the trial judge potentially did restrict Geisler's cross-examination of a government witness — we conclude that any error was harmless beyond a reasonable doubt.
For these reasons, we affirm Geisler's convictions.
Turning to Geisler's attacks on his composite sentence, Geisler's sentences do not violate the Austin rule codified in former AS 12.55.125(k)(2). That rule applied only when the superior court was sentencing a first felony offender for a crime that had no specified presumptive term for first felony offenders. (In other words, the Austin rule applied only when a first felony offender was being sentenced for a class B or class C felony.) Geisler was convicted of three counts of first-degree robbery, a class A felony. Because the legislature enacted presumptive terms for first felony offenders convicted of a class A felony, the Austin rule did not apply to Geisler's case.
AS 11.41.500(b).
Former AS 12.55.125(c) (pre-March 2005 version).
With regard to Geisler's Blakely challenge to his sentence, his arguments fail for two main reasons. First, Geisler did not make a contemporaneous objection to the sentencing judge's failure to refer the aggravating factors to a jury, so Geisler must show plain error. With regard to three of the State's four proposed aggravators, there is no plain error under Blakely because (1) Geisler conceded these aggravators, and (2) there is no reasonable possibility that, had a jury been asked to decide these aggravators, the decision would have gone in Geisler's favor. Second, Geisler's composite sentence — 20 years' imprisonment with 13 years suspended (7 years to serve) — would be lawful even if the State had proved no aggravators at all. Geisler was convicted of three separate counts of first-degree robbery. Each count carried a presumptive term of 7 years' imprisonment, and the sentencing judge had the discretion to impose these sentences consecutively. Thus, even if Geisler had raised a Blakely objection, and the sentencing judge had agreed with Geisler that it would be improper for the judge to consider any of the State's aggravating factors in the absence of a jury verdict on those factors, the judge still would have had the authority to impose the same composite sentence.
Former AS 12.55.125(c)(2)(A) (pre-March 2005 version).
However, as we explain later in this opinion, Alaska sentencing law prohibited the superior court from relying on two of the State's four proposed aggravating factors. For this reason, we remand Geisler's case to the superior court for reconsideration of Geisler's sentence.
Underlying facts
On January 25, 2001, three teenage boys in a Pontiac Grand Prix were attempting to pull out of a residential driveway in Wasilla when they became the victims of a carjacking. The boys were approached by two men, one of whom brandished a handgun. The men had emerged from two cars that were parked nearby on the street.
One of the two men told the boys to get out of the Grand Prix. Then, from within one of the cars parked on the street, a voice instructed the two men to take the boys' money. As the teenagers fumbled for the money in their wallets, the man with the handgun fired his weapon into the air. The teenagers then relinquished their money and began moving quickly back toward the house. At this point, one of the two men shouted for the boys to surrender the keys to the Grand Prix. The boy who had been driving the Grand Prix threw his keys back toward the two men, and then all three boys retreated into the house unharmed.
As soon as the boys entered the house, they called 911 to report the carjacking. The two robbers continued to scramble around outside, and the boys were able to give the police a rough description of these men, as well as the two cars that they had arrived in. Eventually, the carjackers drove away in the Grand Prix, accompanied by the two other cars that had been parked on the street.
The next day, while on patrol in the Wasilla area, Alaska State Trooper Michael Burkmire saw a car that matched the description of one of the cars that the robbers had arrived in. Three people were in this car; two of them matched the boys' descriptions of the robbers.
Trooper Burkmire attempted to pull the vehicle over, but the vehicle sped away. A high-speed chase ensued. The car was eventually captured after the police used spike strips to puncture and deflate the car's tires.
The driver of this car was Jason Geisler. When the car came to a stop, Geisler got out and attempted to run away into the woods, but he surrendered to the officers after running a short distance. Geisler's two passengers (who remained in the car) were identified as Shannon Stenhoff and Yolanda Hernandez.
Neither Geisler nor his male passenger, Stenhoff, was immediately charged with the carjacking. However, after a two-month investigation, the police focused on Stenhoff as one of the two robbers. Stenhoff eventually admitted that he participated in the carjacking, and that he participated in another robbery committed that same night. Stenhoff told the police that Geisler was his accomplice during the carjacking, and that Geisler was the one who carried the handgun.
Stenhoff also told the police that Geisler's older brother, James McAnulty, was the one who instigated the carjacking and the other robbery that same night.
Eventually, Stenhoff reached a plea agreement with the State in which he agreed to testify against Geisler and McAnulty. Stenhoff testified before the grand jury that indicted Geisler and McAnulty, and he later testified at Geisler's trial. (The prosecution against McAnulty was ultimately resolved by a plea bargain.)
A jury convicted Geisler of three counts of robbery (one count for each victim).
Geisler's attack on the grand jury indictment
A Palmer grand jury indicted Geisler on three counts of first-degree robbery arising from the carjacking. Geisler's brother, McAnulty, was indicted on those same three charges, as well as two other charges stemming from other incidents.
Stenhoff was one of the witnesses who testified at the grand jury. During his testimony, Stenhoff discussed certain conversations that he had with McAnulty. In these conversations (as related by Stenhoff), McAnulty spoke of his involvement in a criminal gang and of specific crimes in which he had participated. In particular, McAnulty claimed to have been involved in the kidnapping and subsequent homicide of a young man named Michael Palmer.
This evidence — Stenhoff's account of what McAnulty said to him — was offered to show why Stenhoff obeyed McAnulty when McAnulty directed him to commit a robbery. The prosecuting attorney expressly told the grand jurors that this evidence was not being offered to prove that McAnulty had actually committed the crimes that he discussed with Stenhoff; rather, the evidence was being offered "to give the grand jurors a complete picture of . . . McAnulty's interaction with . . . Stenhoff".
After Geisler was indicted, his defense attorney filed a motion asking the superior court to dismiss the indictment. The defense attorney argued that Stenhoff's testimony (the testimony we have just described) was inadmissible hearsay, and that the grand jury's deliberations were tainted by this inadmissible evidence.
But as Superior Court Judge Eric Smith correctly recognized, the challenged testimony was not hearsay. True, Stenhoff's testimony recounted McAnulty's out-of-court statements. But these out-of-court statements were not offered to prove the truth of the matters asserted by McAnulty. Rather, the statements were offered to prove the effect that these statements had on the person to whom they were addressed, Stenhoff. For this reason, Stenhoff's testimony was not hearsay. See Alaska Evidence Rule 801(c).
Even though Judge Smith properly rejected Geisler's argument that the challenged testimony was inadmissible hearsay, Judge Smith nevertheless considered whether the challenged testimony might have been unfairly prejudicial.
Judge Smith recognized that, given Geisler's family ties to McAnulty, and given their co-participation in the carjacking, the grand jurors might have surmised that Geisler was somehow connected to the other crimes that McAnulty described to Stenhoff. But the judge noted that the prosecutor repeatedly reminded the grand jurors of the limited purpose of Stenhoff's testimony.
Moreover, the grand jury record shows that the grand jurors understood that this information concerning McAnulty's potential other crimes was peripheral to the grand jury's task. When one of the grand jurors questioned the prosecutor as to whether the authorities were conducting a follow-up investigation into McAnulty's possible connection to the homicide of Michael Palmer, another grand juror responded that this inquiry was not relevant, and that they should not spend time on it: "It's not part of this indictment, so let's get going." A third grand juror immediately expressed agreement with this statement.
Based on this record, Judge Smith concluded that the grand jury's deliberations were not unfairly prejudiced by Stenhoff's testimony describing McAnulty's out-of-court statements. We have independently examined the record, and we agree.
Geisler's claim that Judge Smith unlawfully restricted Geisler's cross-examination of Stenhoff at trial
Before trial, Geisler's attorney filed a motion in limine, asking Judge Smith to prohibit the State from introducing evidence of Geisler's connection to his brother's criminal gang, and of Geisler's participation in another robbery that was committed on the same night as the carjacking. Although Geisler has not provided us with the portion of the record in which Judge Smith announced his ruling on Geisler's motion, it is obvious from later discussions that Judge Smith granted this motion.
While Judge Smith agreed to exclude evidence of any crimes other than the carjacking, the judge repeatedly warned Geisler's attorney that if the defense pursued certain types of inquiry when cross-examining Stenhoff, he (the judge) might re-examine and alter his ruling. Judge Smith suggested that certain lines of cross-examination might "open the door" to evidence of Geisler's connection to the gang, or of Geisler's participation in the other robbery, if this evidence was relevant to explain or lend context to Stenhoff's answers on cross-examination.
With one possible exception (which we discuss in detail below), Geisler's attorney chose to forego these avenues of cross-examination rather than risk having Judge Smith alter his ruling.
On appeal, Geisler contends that Judge Smith improperly restricted him from cross-examining Stenhoff. As the preceding discussion illustrates, this is not true. Judge Smith granted the protective order that Geisler requested, but he warned Geisler that he might alter his ruling if, due to Geisler's cross-examination of Stenhoff, evidence of Geisler's other bad acts took on increased relevance.
Moreover, Geisler is procedurally barred from arguing on appeal that Judge Smith's ruling was erroneous. Rather than risk having Judge Smith re-appraise the scope of the protective order, Geisler chose not to pursue the types of cross-examination that Judge Smith was referring to. Thus, Judge Smith was never called on to re-examine the protective order and either re-affirm or alter it.
This leaves us with no final ruling to review. As the supreme court held in State v. Wickham and as we held in Sam v. State, a defendant in these circumstances forfeits the right to challenge a trial judge's preliminary ruling if the defendant chooses not to press the issue and force the judge to issue a final ruling.
State v. Wickham, 796 P.2d 1354, 1357-58 (Alaska 1990); Sam v. State, 842 P.2d 596, 598-99 (Alaska App. 1992).
There was, however, one particular exchange between the defense attorney and Judge Smith in which the judge may have improperly infringed Geisler's right of cross-examination.
During the defense attorney's recross-examination ( i.e., his second cross-examination) of Stenhoff, the defense attorney asked Stenhoff about two statements that Stenhoff had given to the police: one on March 16, 2001, and a subsequent one on April 2, 2001. The defense attorney asked Stenhoff if he was hoping to strike a deal with the police when he gave those two statements. Stenhoff replied that he had not been trying to strike a deal when he gave the earlier statement — because, at that time, he had not yet been arrested or charged. Stenhoff admitted, however, that he did try to strike a deal with the authorities after he was incarcerated.
The defense attorney was apparently dissatisfied with this answer. He asked Stenhoff, "Well, even before you were incarcerated, you knew enough [to try to strike a deal], didn't you?" The prosecutor objected that this question had already been asked and answered, and this objection led to a bench conference.
From the statements of the prosecutor and the defense attorney during this bench conference, it appears that Stenhoff had either given a statement or had testified earlier that he was trying to strike a deal with the police when he was interviewed on March 16th. However, it also appears that the deal that Stenhoff was contemplating did not relate to the carjacking that he and Geisler committed. Rather, Stenhoff was thinking about trying to strike a deal with the authorities regarding a shooting incident that involved James McAnulty and the theft of a snow machine.
Because Stenhoff had apparently been trying to negotiate a deal regarding an unrelated crime, the prosecutor objected that the defense attorney was attempting to use Stenhoff's words out of context. The defense attorney replied that it was not significant that Stenhoff was referring to another crime — because, no matter what crime Stenhoff was concerned about, his willingness to strike a deal with the authorities was important evidence of "his state of mind". By "state of mind", the defense attorney meant Stenhoff's general unwillingness "to say anything [to the authorities on March 16th] unless it help[ed] [him] out".
After hearing the defense attorney's explanation of why he thought this cross-examination was relevant, the prosecutor responded that if the defense attorney was allowed to ask questions on this topic, the State should be entitled to apprise the jury of the true context of Stenhoff's statement — by having the police testify about the other crimes that they were investigating when they questioned Stenhoff on March 16th.
Judge Smith put an end to this discussion by simply announcing, "The [State's] objection is sustained." This ruling is somewhat puzzling, because the only objection voiced by the prosecutor was "asked and answered". Given the discussion that occurred during the bench conference, it is fairly clear that "asked and answered" was not a proper objection to the proposed cross-examination.
Later that same day, Judge Smith had occasion to return to this ruling when the defense attorney announced that he "want[ed] to make sure [his] record [was] clear" for purposes of appeal. The defense attorney reiterated his position that Stenhoff's statement was relevant to prove his "state of mind", and that the proposed cross-examination was "clearly impeachment".
In response, the prosecutor reiterated her concern that the defense attorney was trying to lift Stenhoff's statement out of context. The prosecutor again asserted that Stenhoff's statement referred to a shooting incident involving James McAnulty and the theft of a snow machine. In other words, it was evidence relating to another crime purportedly committed by Geisler's brother — the kind of evidence that Judge Smith had prohibited the State from introducing.
After hearing these additional arguments, Judge Smith explained that he had sustained the State's objection because, if he had allowed the defense attorney to ask the proposed questions, he would have been obliged to let the State introduce explanatory evidence relating to the snow machine incident:
The Court: It's clear . . . that the comment Mr. Stenhoff made [during the March 16th interview] . . . is probative of [his] state of mind[, that] it is relevant to . . . the issue of whether Mr. Stenhoff had any understanding whatsoever of what it meant to talk to a policeman[.] [But Stenhoff's] comment has to be analyzed . . . in the context of the snow machine incident, as opposed to . . . the carjacking incident. It also bleeds in[to] the issue of the Hatcher Pass robbery [another robbery committed by Stenhoff and McAnulty just before the carjacking].
[T]o allow [Stenhoff's] statement in[to evidence] would essentially force some further questioning regarding the context of that statement, and that kicks open the door that I've been trying to wedge firmly shut, to protect the defendant. . . . We would be moving into realms that would prove to be more prejudicial to Mr. Geisler. And while it's not for me to decide whether [defense] counsel should or shouldn't kick open the door, [defense counsel was trying] not to kick open the door but still [get] the statement in. And viewed within that . . . context, my ruling was that it was more prejudicial than probative to allow that statement to be used for impeachment purposes.
In other words, Judge Smith told the attorneys that he had not allowed the defense attorney to engage in the proposed cross-examination because (1) the proposed cross-examination would require a modification of the pre-existing protective order, and (2) the defense attorney gave no indication that he was willing to have the protective order modified so that he could pursue the proposed cross-examination.
We can understand why this explanation may have come as a surprise to the defense attorney. Earlier, when Judge Smith sustained the State's objection to the defense attorney's proposed cross-examination of Stenhoff, the judge said nothing to suggest that he was engaging in this type of analysis.
However, Judge Smith's explanation of his earlier ruling was, at least in part, an invitation to the defense attorney: an invitation to speak up if the defense attorney was indeed willing to risk a modification of the protective order as the price for pursuing the proposed cross-examination of Stenhoff. But the defense attorney's only response to Judge Smith's explanation was, "Thank you, Judge. That's all I have." Given these facts, we believe that our rulings in Wickham and Sam apply, and that the defense attorney forfeited his right to challenge the judge's ruling on appeal.
But even assuming that the defense attorney properly preserved an objection to Judge Smith's ruling, and further assuming that Judge Smith committed error when, before making his initial ruling, he failed to explicitly give the defense attorney the choice of pursuing the proposed cross-examination with the understanding that this would mean a modification of the protective order ( i.e., authorization for the State to introduce evidence of other crimes), we nevertheless conclude that any error was harmless beyond a reasonable doubt.
During Stenhoff's testimony, the jury was repeatedly apprised that Stenhoff had agreed to testify against Geisler as part of a plea bargain. Under the terms of this plea bargain, Stenhoff was allowed to plead guilty to a single count of robbery (he was facing four counts), and Stenhoff received the promise of a sentence of between 7 and 20 years, with the State conceding one mitigating factor. (Presumably, this was the mitigator for providing aid to the authorities — former AS 12.55.155(d)(12), now renumbered as (d)(11).)
Indeed, the jury heard that Stenhoff had already been sentenced when he testified at Geisler's trial — that Stenhoff received a mitigated sentence of only 3½ years to serve (with an additional 3½ years suspended), and that Stenhoff had already been released by the time of Geisler's trial.
See former AS 12.55.155(a)(2) (when the applicable presumptive term exceeded 4 years, proof of mitigating factors authorized the sentencing judge to reduce the defendant's prison term, but by no more than fifty percent of the applicable presumptive term).
The jury heard Stenhoff admit that, after he was arrested, one of his goals in speaking with the police was to strike a deal. Stenhoff admitted that he "wasn't completely honest with [the police]" in his earlier statements. He told the jury that he decided to help the authorities "because [he] figured [that his cooperation] would help [him] out." Stenhoff admitted that he was trying to get the best deal that he could.
Judge Smith stopped the defense attorney from cross-examining Stenhoff concerning the precise date on which Stenhoff decided to try to strike a deal with the authorities. Given the other testimony that the jury heard on the issue of Stenhoff's bias — testimony regarding Stenhoff's desire to cooperate with the authorities, his reasons for doing so, and the benefits he derived from that cooperation — we conclude that even if Judge Smith's ruling was improper, any error was harmless beyond a reasonable doubt.
Geisler's contention that his sentence violates the Austin rule, and that his sentence is excessive
As explained above, Geisler was convicted of three counts of first-degree robbery (one for each of the three victims). First-degree robbery is a class A felony. Because Geisler was a first felony offender, and because he carried a firearm during his commission of these offenses, Geisler faced a presumptive term of 7 years' imprisonment on each count. Judge Smith sentenced Geisler to three concurrent terms of 20 years with 13 years suspended. In other words, Geisler's composite sentence is 7 years to serve and another 13 years suspended.
AS 11.41.500(b).
Former AS 12.55.125(c)(2)(A) (pre-March 2005 version).
Geisler contends that his sentence violates the rule announced by this Court in Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), and later codified in former AS 12.55.125(k)(2). But the Austin rule applied only to first felony offenders convicted of a class B or class C felony — i.e., offenders who did not face a presumptive term. See former AS 12.55.125(k)(2); see also Cook v. State, 36 P.3d 710, 730 (Alaska App. 2001). Geisler was convicted of class A felonies, and his sentencing was governed by the 7-year presumptive term prescribed in the pre-2005 version of AS 12.55.125(c)(2). Thus, the Austin rule does not apply to his case.
Geisler also contends that his composite sentence is excessive. But his argument is based on the assertion that his 13 years of suspended imprisonment are the equivalent of 13 years to serve. In his brief, Geisler asserts that he has been "sentenced . . . to 20 years", and that his sentence "exceeds the [10-year] presumptive sentence [for a second felony offender] by ten years". This is simply wrong.
Even though Geisler was convicted of three separate counts of first-degree robbery, he received only a composite 7 years to serve — well below the 10-year presumptive term that a second felony offender would have faced for one count of first-degree robbery under former AS 12.55.125(c)(3).
Judge Smith carefully explained why, despite Geisler's lengthy history of juvenile delinquency, he decided to sentence Geisler to serve only the 7-year presumptive term for first-degree robbery. Judge Smith also explained why he decided to add a substantial amount of suspended time to Geisler's sentence in order to insure that the public was protected in the event that Geisler returned to criminal activity. Having independently reviewed the record, we conclude that Judge Smith's sentencing decision is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentencing court's decision unless the sentence is clearly mistaken).
Geisler's contention that his right to trial by jury, as construed in Blakely v. Washington , was violated when Judge Smith relied on aggravating factors that had not been presented to a jury and proved beyond a reasonable doubt
As noted above, Geisler's sentencing was governed by Alaska's pre-2005 presumptive sentencing laws. Under those laws, (1) Geisler faced a presumptive 7-year term of imprisonment for each of the three counts of first-degree robbery, and (2) if the State proved one or more of the aggravating factors listed in AS 12.55.155(c), Geisler could receive any sentence up to the statutory maximum of 20 years' imprisonment on each count.
The State proposed four aggravating factors in Geisler's case: (c)(4) — that Geisler employed a dangerous instrument in furtherance of his offenses; (c)(6) — that Geisler's conduct created a risk of imminent physical injury to three or more persons; (c)(19) — that Geisler's criminal history included a delinquency adjudication for conduct that would have been a felony if he had been an adult; and (c)(29) — that Geisler committed the robberies for the benefit of, at the direction of, or in association with a criminal street gang.
Geisler conceded the first three of these aggravators, but he contested aggravator (c)(29) (that the robberies were gang-related).
Geisler proposed one mitigator: AS 12.55.155(d)(4) — that his conduct was substantially influenced by another more mature person (his brother, James McAnulty).
Judge Smith found that the State had proved all four of its proposed aggravators. The judge also found that Geisler had proved his proposed mitigator.
Based on the aggravating factors, Judge Smith imposed robbery sentences that exceeded the 7-year presumptive term, although (as explained above) he suspended all of the additional imprisonment above 7 years.
In this appeal, Geisler argues that this sentencing procedure violated his Sixth Amendment right to jury trial as construed in Blakely v. Washington. Specifically, Geisler argues that Judge Smith violated his right to jury trial when, based on aggravating factors that were not presented to a jury, Judge Smith increased Geisler's three robbery sentences above the prescribed 7-year presumptive term (by adding 13 years of suspended imprisonment).
As we explained in Haag v. State, 117 P.3d 775 (Alaska App. 2005), Alaska's pre-2005 presumptive sentencing laws violated the right to jury trial announced in Blakely:
In Blakely v. Washington, the Supreme Court held that the Sixth Amendment to the United States Constitution guarantees criminal defendants a right to jury trial on all factual issues that are necessary to establish a sentencing judge's authority to impose the type of sentence that the defendant received. Thus, when a sentencing judge has no authority to exceed a specified sentencing ceiling unless particular aggravating factors are proved, the defendant has a right to demand a jury trial on those aggravating factors (with the exception of prior criminal convictions). Blakely, [ 542 U.S. at 303-05;] 124 S.Ct. at 2537-38. If the defendant is denied this right, then the sentencing judge can not exceed the prescribed statutory ceiling. Id.[, 542 U.S. at 305; 124 S.Ct.] at 2538.
. . .
Alaska's pre-2005 presumptive sentencing laws are directly affected by the Blakely decision — because, under those laws, if a felony defendant was subject to a presumptive term of imprisonment, the superior court had no authority to increase that term of imprisonment (even by the addition of suspended imprisonment) unless the State proved one or more of the aggravating factors listed in AS 12.55.155(c), or unless the State proved extraordinary circumstances as defined in AS 12.55.165. . . .
Thus, under Alaska's pre-2005 presumptive sentencing law, proof of aggravating factors (or proof of extraordinary circumstances favoring the government) expanded the range of sentences available to the superior court — to the defendant's detriment. Blakely holds that, under such a sentencing scheme, a defendant has the right to a jury trial on these factors (with the exception of prior convictions). But under Alaska's pre-2005 presumptive sentencing laws, all rulings on aggravating and mitigating factors, and all rulings on extraordinary circumstances (whether favoring the government or the defendant), were made by the sentencing judge. Thus, Alaska's pre-2005 presumptive sentencing laws provided for sentencing procedures that violated the Sixth Amendment as interpreted in Blakely.
Haag, 117 P.3d at 782.
Moreover, as we also explained in Haag, the Blakely ruling applies to all defendants whose judgements of conviction were not yet final when Blakely was decided (June 24, 2004). This includes defendants who, like Geisler, were sentenced before Blakely but whose direct appeals were pending when Blakely was issued. Haag, 117 P.3d at 783.
Thus, Geisler is entitled to claim the benefit of Blakely. However, because Geisler raised no contemporaneous challenge to the sentencing procedures, he must show that those procedures constituted plain error under Blakely.
As we noted earlier, Geisler conceded three of the State's proposed aggravators. In Paige v. State, 115 P.3d 1244, 1248 (Alaska App. 2005), we held that it is not plain error for a sentencing judge (at a pre- Blakely sentencing hearing) to rely on aggravating factors that are expressly conceded by the defense. Thus, Geisler can not show plain error with respect to the three aggravators that he conceded.
Moreover, in Greist v. State, 121 P.3d 811, 814-15 (Alaska App. 2005), this Court held that aggravator (c)(19) — defendant's criminal history includes a delinquency adjudication for conduct that would have been a felony if the defendant had been an adult — falls within the Blakely exception for prior convictions. Thus, Judge Smith committed no Blakely error at all when he relied on this aggravator.
Finally, and most importantly, Geisler's Blakely arguments are moot — because, even in the absence of any aggravating factors, Judge Smith had the authority to impose Geisler's composite term of 20 years with 13 years suspended.
Geisler was convicted of three counts of first-degree robbery. Each count carried a presumptive term of 7 years' imprisonment. Under Alaska law, Judge Smith had the authority to run these three sentences consecutively. And when a defendant is being sentenced for two or more offenses, Blakely does not govern the sentencing judge's decision regarding whether to impose those sentences concurrently or consecutively. Vandergriff v. State, 125 P.3d 360, 363 (Alaska App. 2005); Edmonds v. State, 118 P.3d 17, 18 (Alaska App. 2005).
Thus, even in the absence of any aggravating factors, Judge Smith had the authority (based on the jury's verdicts in Geisler's case) to impose up to three consecutive 7-year terms — i.e., to impose any term of imprisonment up to 21 years. This means that Geisler's composite term of 7 years to serve with an additional 13 years suspended does not present a Blakely problem; it is within the range of sentences authorized by the jury's verdicts.
But even though Geisler's Blakely arguments have no merit, there were two flaws in his sentencing.
Judge Smith's reliance on aggravators (c)(4) and (c)(6) violated state law
As we noted earlier, Judge Smith found that Geisler's offenses were aggravated under AS 12.55.155(c)(4) because Geisler employed a handgun in furtherance of his offenses, and under AS 12.55.155(c)(6) because Geisler's conduct created a risk of imminent physical injury to three or more persons.
However, as the State forthrightly acknowledges in its brief, Judge Smith's reliance on aggravator (c)(4) was improper under AS 12.55.155(e). This statute declares that a sentencing judge is prohibited from relying on an otherwise applicable aggravating factor if this aggravating factor independently "requires the imposition of a . . . presumptive [term] under AS 12.55.125(c)(2)".
The pre-March 2005 version of this statute used the phrase "requires the imposition of a presumptive term". In March 2005, the statute was amended so that, in keeping with Alaska's revised presumptive sentencing law, it now reads "requires the imposition of a sentence within the presumptive range". See SLA 2005, ch. 2, § 20. The principle codified in this statute remains the same.
AS 12.55.125(c)(2) lists various circumstances in which a first felony offender convicted of a class A felony will be subject to an increased presumptive term — i.e., a presumptive term greater than the normal 5-year presumptive term specified in former AS 12.55.125(c)(1). Geisler was subject to a 7-year presumptive term under one of the subsections of 125(c)(2) — specifically, subsection (2)(A) — because he used a firearm during the robberies. Even though this same fact would support a finding of aggravator (c)(4), AS 12.55.155(e) prohibited Judge Smith from relying on that aggravator.
Judge Smith was also prohibited from relying on aggravator (c)(6). It is true that Geisler's conduct created a risk of injury to three persons, but Geisler received a separate conviction and sentence for his robbery of each of these three persons. In Juneby v. State, 641 P.2d 823, 842 (Alaska App. 1982), and 665 P.2d 30, 38 (Alaska App. 1983) (opinion on rehearing), this Court held that a sentencing judge can not rely on an aggravating factor that is premised on conduct for which the defendant is being separately sentenced. Judge Smith's reliance on aggravator (c)(6) violated this rule.
Thus, as a matter of state law, neither aggravator (c)(4) nor aggravator (c)(6) could be used to enhance Geisler's sentence.
As we explained in the preceding section of this opinion, Geisler's sentence would be lawful even if Judge Smith had not found any aggravating factors. However, given the fact that Judge Smith may have relied on all four aggravating factors when he determined Geisler's sentence, and given the fact that it was error (as a matter of state law) for Judge Smith to rely on two of these aggravators, we conclude that we should remand Geisler's case to the superior court so that Judge Smith can re-evaluate Geisler's sentence.
Conclusion
Geisler's convictions are AFFIRMED. However, we REMAND this case to the superior court with directions to reconsider Geisler's sentence.