Opinion
Court of Appeals No. A-9012, 5221.
May 16, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge., Trial Court No. 1SI-00-175 CR., Trial Court No. 3AN-03-13088 CR.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Douglas H. Kossler, 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
Frank Guertin contends that insufficient evidence supports his conviction for first-degree burglary. We reject this claim because we conclude that fair-minded jurors exercising reasonable judgment could conclude that the State had proven this charge beyond a reasonable doubt.
AS 11.46.300(a)(1).
Guertin also argues that the superior court violated Blakely v. Washington by finding that certain statutory aggravating factors applied at sentencing. But the aggravating factors the superior court found were Blakely-compliant because the court relied on Guertin's prior convictions to find those aggravating factors. Thus, we reject Guertin's attack on his sentence and affirm his conviction.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Background facts and proceedings
On December 13, 2003, Yale Metzger and his wife Susan Richmond were watching television in their bedroom when a burglar alarm signaled an intrusion. Metzger armed himself with a heavy flashlight and a shotgun and left the bedroom to investigate. Metzger discovered a man (Guertin) in the basement.
Metzger chambered a round in the shotgun and told Guertin to submit. Despite Metzger's instructions, Guertin advanced toward Metzger. The two wrestled for control of the shotgun but Guertin succumbed after Metzger struck him several times with the flashlight. Richmond had called 911 and the police arrived shortly thereafter.
Guertin had been carrying a sleeping bag belonging to Metzger and there were other items of value disturbed in the house.
The police arrested Guertin. The grand jury charged Guertin with first-degree burglary for entering the Metzger/Richmond house with the intent to commit theft. The prosecutor also filed an information charging fourth-degree assault. The trial jury convicted Guertin as charged.
AS 11.41.230(a)(3).
At sentencing, Superior Court Judge Dan A. Hensley relied on Guertin's prior convictions to find two statutory aggravating factors from AS 12.55.155: (c)(8) (Guertin's prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior) and (c)(21) (Guertin's criminal history included repeated instances of illegal conduct similar in nature to the present offense). Guertin did not face a presumptive term. Judge Hensley imposed a 9-year term with 3 years suspended for first-degree burglary. Judge Hensley also imposed 1 year of imprisonment for the fourth-degree assault, to run consecutively to the burglary sentence. Guertin appeals.
Discussion Sufficient evidence supported Guertin's burglary conviction
When we consider a claim that insufficient evidence supports a conviction, we view the evidence presented at trial and the reasonable inferences arising from the evidence in the light most favorable to upholding the verdict. Viewing the evidence in this manner, we decide whether a fair-minded juror exercising reasonable judgment could conclude that the State proved that the defendant was guilty beyond a reasonable doubt.
Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989).
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Silvernail, 777 P.2d at 1172.
Guertin concedes that he entered the house unlawfully but claims there was insufficient evidence to support the element that he entered with an intent to steal. Guertin asserts that he only entered the house to find a warm place to sleep. But Guertin erroneously advances a view of the evidence most favorable to his case.
Guertin entered the Metzger/Richmond house late at night. When confronted by Metzger, Guertin was holding a sleeping bag owned by Metzger. In addition, evidence showed that Guertin had rummaged through other areas of the basement, examining the property in those areas. A supply of coins usually found in the laundry area was also disturbed.
Viewing the evidence presented at trial in the light most favorable to the State, we conclude that sufficient evidence supported the jury's verdict.
Sentencing issues
Guertin challenges several aspects of Judge Hensley's rulings at sentencing. The jury convicted Guertin of first-degree burglary, a class B felony. Guertin did not face a presumptive term for this offense, and under former AS 12.55.125(k)(2), Guertin could not be sentenced to a term to serve in excess of 4 years unless statutory aggravating factors or extraordinary circumstances applied. Judge Hensley found aggravating factors (c)(8) and (c)(21) and imposed 6 years to serve for the burglary charge.
AS 11.46.300(b).
See former AS 12.55.125(d)(1).
Guertin argues that Judge Hensley violated Blakely when he found aggravating factors (c)(8) and (c)(21) without requiring the State to prove those aggravating factors to a jury beyond a reasonable doubt. In Blakely, the United States Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."
United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 2005) (discussing Blakely, 542 U.S. 296, 124 S. Ct. 2531).
In Milligrock v. State, we held that aggravator (c)(8) is Blakely-compliant when a sentencing judge relies on a defendant's undisputed prior criminal convictions to find the aggravating factor. The record shows that Judge Hensley based his finding of aggravator (c)(8) on Guertin's prior convictions.
118 P.3d 11 (Alaska App. 2005).
Id. at 16.
In Grohs v. State, we held that a sentencing judge can properly find aggravator (c)(21) when the judge relies on the defendant's undisputed prior convictions to find the factor. The record shows that Judge Hensley based his finding of aggravator (c)(21) on Guertin's prior convictions.
118 P.3d 1080 (Alaska App. 2005).
Id. at 1084.
Guertin further argues that aggravator (c)(21) necessarily presents a question of fact for a jury under Blakely because the fact-finder must assess whether the defendant's prior criminal history includes conduct similar in nature to the present offense. But the State simply relied on the fact of Guertin's prior convictions and the legal elements of those convictions, not on the underlying facts in each case.
Id.
Guertin also claims that the prior conviction exception is no longer valid. In Shepard v. United States, Justice Thomas suggested in a concurring opinion, that Almendárez-Torres v. United States, the Supreme Court decision that exempts a defendant's prior convictions from the requirement of a jury trial under Blakely, "has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and [that] a majority of the Court now recognizes that Almendárez-Torres was wrongly decided." But in Tyler v. State, this court ruled that we will continue to apply the prior conviction exception until the Supreme Court overrules or modifies it.
544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).
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 690.
Guertin also contends that Judge Hensley erroneously found that he was a worst offender. Under Alaska law, before a sentencing judge imposes a maximum sentence, the judge must find that the defendant is a "worst offender." But Judge Hensley did not impose a maximum sentence. Therefore, even if Judge Hensley's finding that Guertin is a worst offender is erroneous, this issue is moot.
See State v. Wortham, 537 P.2d 1117 (Alaska 1975).
Id. at 1120.
See AS 12.55.125(d) (providing for a maximum penalty of 10 years for a class B.
Conclusion
The judgment of the superior court is AFFIRMED.