From Casetext: Smarter Legal Research

Haugen v. State

Court of Appeals of Alaska
Dec 6, 2006
Court of Appeals No. A-9540 (Alaska Ct. App. Dec. 6, 2006)

Opinion

Court of Appeals No. A-9540.

December 6, 2006.

Prison Health Services, Inc. v. Baltimore County, Maryland, Trial Court No. 4FA-04-1998 CR.

Appearances: S. Tye Menser, Assistant Public Defender, Fairbanks, 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


Christopher L. Haugen entered into an agreement with the State to plead no contest to robbery in the first degree. At sentencing, Haugen argued that he had only agreed to a presumptive 5-year term. But Superior Court Judge Pro Tem Jane F. Kauvar found that when Haugen entered into the plea agreement, he had agreed that he faced a 7-year presumptive sentence based upon his concession that he had used a dangerous instrument (a knife) during the robbery. Judge Kauvar found a mitigating factor and sentenced Haugen to a mitigated presumptive sentence of 7 years with 1 year suspended.

AS 11.41.500(a)(1).

Former AS 12.55.125(c)(2)(A).

On appeal, Haugen argues that he never agreed to the 7-year presumptive term when he entered into the plea agreement. He argues that, under Blakely v. Washington, the finding that he used a knife during the robbery (and thus was subject to the 7-year presumptive term) could only be found by a jury beyond a reasonable doubt. He also argues that Judge Kauvar erred in rejecting two of his proposed mitigating factors.

We conclude that the record supports Judge Kauvar's finding that Haugen agreed the 7-year presumptive term applied when he entered the plea agreement. We also conclude that Judge Kauvar did not err in rejecting Haugen's proposed mitigating factors. We conclude that the sentence that Judge Kauvar imposed was not clearly mistaken.

Factual and procedural background

On June 10, 2004, Haugen hitchhiked from Fairbanks to Delta Junction with the intent of robbing a grocery store there. Haugen entered an IGA store and approached a clerk at the checkout counter, sixteen-year-old Jennifer McMillan. Haugen took out a knife, grabbed McMillan by the arm, and told her to stay still. McMillan tried to run away and screamed. Other employees in the store came to McMillan's rescue and tackled Haugen. The knife, which was described as a 7 1/2;-inch-long Harley-Davidson knife with a red handle and three-inch blade, came out of Haugen's hand when he hit the floor.

The store employees restrained Haugen until a state trooper arrived. McMillan was visibly shaken and had noticeable scratches and abrasions. When the troopers questioned him, Haugen admitted that he had been planning to rob the IGA store for a couple of days. He admitted using the knife with the intent of scaring McMillan into giving him the money. He stated that he had committed the crime because he needed money to support his three children and his fiancee's four children. He stated that they had no place to live and had run out of money. The State initially charged Haugen with robbery in the first degree, a class A felony, and assault in the third degree, a class C felony. Ultimately, Haugen entered into a plea agreement with the State. Haugen agreed to enter a plea of no contest to robbery in the first degree. The State agreed to dismiss the assault charge.

AS 11.41.500 and AS 11.41.220, respectively.

Under the pre-2005 sentencing code, Haugen faced a 7-year presumptive term of imprisonment for a class A felony if he used a dangerous instrument during the offense. A knife meets the definition of a dangerous instrument because it is capable of causing death or serious physical injury. If Haugen had not used a dangerous instrument during the offense, he would have faced a presumptive term of 5 years. If the State proved aggravating factors, the court was authorized by statute to increase the sentence up to the 20-year maximum sentence. If Haugen proved mitigating factors, the court was authorized to reduce the presumptive sentence by up to half of the presumptive term. In entering his plea, Haugen agreed to a maximum term of 7 years of imprisonment, the presumptive term for robbery where a defendant used a dangerous instrument. The State agreed that it would not propose any aggravating factors. Haugen was permitted to argue for mitigating factors. The parties agreed that, if the court found mitigating factors, the court was authorized to lower Haugen's sentence to 3 1/2; years of imprisonment.

Former AS 12.55.125(c)(2)(A).

AS 12.55.185(4); AS 11.81.900(b)(15)(A).

Former AS 12.55.125(c)(1).

Former AS 12.55.155(a)(2).

Four months later, when Haugen appeared at sentencing, he argued that he had not agreed to the 7-year presumptive term. He argued that he only agreed to the possibility of a 7-year maximum sentence. He also contended that the 7-year presumptive term had to be based upon a finding that he had used a knife during the robbery, which under Blakely v. Washington, had to be proved to a jury beyond a reasonable doubt. Judge Kauvar found that Haugen had agreed to the 7-year presumptive term when he entered into the plea agreement and proceeded to sentencing.

On appeal, Haugen renews his claim that, under Blakely, the State was required to prove the fact that he used a knife during the robbery to a jury beyond a reasonable doubt. But the Blakely decision only applies to factual issues that the defendant disputes. Therefore, if Haugen entered into the plea agreement by conceding that the 7-year presumptive term applied because he had used a knife during the robbery, he waived his rights under Blakely.

We conclude that the record supports Judge Kauvar's finding that Haugen agreed to the 7-year presumptive term when he entered into his plea agreement. The only reasonable reading of the record is that Haugen agreed to the 7-year presumptive term. Part of Haugen's agreement was that the State would not file any aggravating factors. If, as Haugen contends, the presumptive term that Haugen faced was 5 years, and the State could not propose any aggravating factors, the court would not have any authority to impose more than the 5-year presumptive term. But in entering the plea agreement, the parties agreed that, if the court found mitigating factors, the court could impose a sentence as low as 3 1/2; years. Under the former sentencing code, if Haugen faced a presumptive term of 5 years of imprisonment, the court would have had the authority to reduce the presumptive sentence by half, to 2 1/2; years, if the court found mitigating factors. Therefore, the statements that Haugen made in entering his plea are inconsistent with his position that he did not agree to the 7-year presumptive term.

Former AS 12.55.155(a)(2).

Id.

Why we conclude that Judge Kauvar did not err in rejecting Haugen's proposed mitigating factors

Judge Kauvar found one mitigating factor: that Haugen "was motivated to commit the offense solely by an overwhelming compulsion to provide for emergency necessities for [his] immediate family." Haugen argues that Judge Kauvar erred in rejecting the mitigating factor that he committed the offense under duress. But Haugen relied on the same facts to argue the duress mitigator that he presented for the providing necessities mitigator. Judge Kauvar fully considered this mitigating evidence in imposing Haugen's sentence. We find no error.

Former AS 12.55.155(d)(11).

Former AS 12.55.155(d)(3).

Haugen also argues that Judge Kauvar erred in rejecting Haugen's proposed mitigating factor that his conduct was "among the least serious conduct included in the definition of the offense." In rejecting this mitigating factor, Judge Kauvar pointed out that Haugen had planned the robbery. She pointed out that the store clerk was only sixteen years old and that Haugen had not only threatened her with the knife but had grabbed her, causing injury. We agree with Judge Kauvar that the facts of this case do not establish that the robbery was a least-serious offense.

Former AS 12.55.155(d)(9).

In sentencing Haugen, Judge Kauvar fully considered the mitigating evidence that Haugen presented. But she concluded that Haugen's actual offense was not mitigated. Haugen had planned the robbery, had threatened the young store clerk with "a scary knife," and had grabbed the victim, causing obvious visible physical injury. Judge Kauvar concluded that there was no basis to mitigate Haugen's sentence substantially below the presumptive term. The sentence that Judge Kauvar imposed is supported by the record and is not clearly mistaken.

McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

The sentence is AFFIRMED.


I write separately to explain some additional facts of this case which lead me to the same conclusion reached by the majority: the conclusion that the record supports a finding that Haugen's plea agreement included a concession on his part that he had, in fact, used a dangerous instrument and was therefore subject to a 7-year presumptive term rather than a 5-year presumptive term.Haugen was indicted for first-degree robbery under AS 11.41.500(a)(1), the subsection that deals with robberies in which the perpetrator is armed with a "deadly weapon". Under AS 11.81.900(b)(17), a knife is a deadly weapon. Thus, the fact that Haugen carried a knife during the robbery was sufficient to make his offense first-degree robbery.

However, Haugen would not be subject to the 7-year presumptive term specified in AS 12.55.125(c)(2)(A) unless he used the knife during the commission of his offense; otherwise, he would be subject to the 5-year presumptive term specified in subsection 125(c)(1) of the statute. In early October 2004, Haugen reached a plea agreement with the State. Haugen agreed to plead no contest to the robbery, and the State dismissed an accompanying assault charge.

Ostensibly, Haugen further agreed that he would be subject to the 7-year presumptive term specified in subsection 125(c)(2)(A), and the State agreed that it would not propose any aggravating factors. Without aggravating factors, the 7-year presumptive term effectively became the maximum sentence that Haugen might receive, even if the superior court rejected all three of his proposed mitigating factors.

However, more than eleven weeks after this plea agreement was announced, Haugen filed a pleading in which he asserted that, under Blakely v. Washington, he could not lawfully be subjected to the 7-year presumptive term (as opposed to the 5-year presumptive term) unless the State proved the distinguishing issue of fact — Haugen's use of the knife — to a jury beyond a reasonable doubt.

At an ensuing court hearing, Haugen's assistant public defender told the superior court that he had given Haugen bad advice. The defense attorney said that, initially, he told Haugen that the 7-year presumptive term governed his sentencing. But later, the attorney arrived at the conclusion that Haugen had a right to trial by jury on the issue of whether he used the knife during the robbery — and that, if the State failed to prove this fact beyond a reasonable doubt, Haugen would face only a 5-year presumptive term. Based on these representations, the superior court allowed Haugen to withdraw his plea.

Haugen's case proceeded to trial. But after the jury had been selected and sworn, Haugen again changed his mind about the plea bargain. Haugen's defense attorney (not the same attorney, but another assistant public defender) told the court that Haugen had decided to accept the State's original offer. That is, Haugen agreed that he was subject to the 7-year presumptive term; the State agreed that it would offer no aggravating factors (thus capping Haugen's sentence at 7 years); and the parties agreed that Haugen could propose mitigating factors in an attempt to obtain a reduced sentence. The superior court accepted Haugen's plea, and Haugen's trial ended.

This appeal arises from the fact that when Haugen appeared for sentencing, his original defense attorney appeared and renewed the Blakely argument that had derailed the first plea agreement. That is, the defense attorney argued that Haugen could not be subjected to the 7-year presumptive term unless the State convinced a jury that Haugen had used his knife during the commission of the robbery.

The superior court found that Haugen had conceded the applicability of the 7-year term as part of the plea agreement — and that, for this reason, no jury finding was needed. Despite this adverse ruling, Haugen did not attempt to withdraw his plea, nor did he claim unilateral mistake concerning the terms of the plea agreement. Instead, he proceeded to argue his proposed mitigating factors. The superior court found that Haugen had proved one of these mitigators and, on the basis of this mitigator, the court suspended 1 year of the 7-year presumptive term.

On appeal, Haugen renews his argument that, under Blakely, he was entitled to have a jury decide the issue of fact — Haugen's use of the knife — that would determine whether Haugen was subject to a 5-year presumptive term under AS 12.55.125(c)(1) or a 7-year presumptive term under AS 12.55.125(c)(2)(A).

It may be true that Haugen was entitled to a jury trial on this issue. (Even before the Blakely decision, Alaska law required the State to prove this issue of fact beyond a reasonable doubt. See Huf v. State, 675 P.2d 268, 271-72 (Alaska App. 1984), re-affirmed in Tuttle v. State, 65 P.3d 884, 887 (Alaska App. 2002).) But given the facts of this case, the real issue is whether Haugen agreed to the 7-year presumptive term as part of the plea bargain.

If, as part of his plea bargain, Haugen agreed that the 7-year presumptive term governed his sentencing, then it makes no difference whether Haugen would have been entitled to a jury trial under Blakely if he had chosen to dispute the applicability of the 7-year presumptive term. Haugen's agreement that the 7-year term (and not the 5-year term) applied to his case means that he would have to move to withdraw his plea if he wanted to dispute that issue now.

The superior court found that Haugen had, in fact, agreed that the 7-year presumptive term would apply. And, as explained in Judge Coats's majority opinion, the record supports this finding.

In the superior court, the parties referred to the fact that Haugen faced a maximum sentence of 7 years. Given the State's agreement not to propose aggravating factors, this 7-year maximum sentence was possible only if the 7-year presumptive term applied to Haugen's sentencing. (Otherwise, the maximum sentence would be 5 years.)

In addition, when discussing the potential proof of mitigating factors, the parties referred to the fact that the superior court might reduce Haugen's sentence to 3 1/2; years. Again, this figure of 3 1/2; years makes sense only if Haugen agreed that his sentencing was governed by the 7-year presumptive term.

Under AS 12.55.155(a)(2), if the defendant's presumptive term is greater than 4 years, the superior court can reduce the defendant's sentence by up to fifty percent based on mitigating factors. Thus, if the applicable presumptive term is 7 years, a reduction to as little as 3 1/2; years is possible. (On the other hand, if the 5-year presumptive term had applied, then the superior court would have been authorized to reduce the sentence to 2 1/2; years.)

Based on these circumstances, I agree with my colleagues that the superior court could reasonably conclude that Haugen agreed to the 7-year presumptive term as part of his plea bargain with the State. And because of this, Haugen has no right to bring his Blakely attack on the sentencing proceedings in his case. If Haugen wishes to challenge the applicability of the 7-year presumptive term, he must move to withdraw his plea (and allow the State to reinstate the dismissed assault charge).


Summaries of

Haugen v. State

Court of Appeals of Alaska
Dec 6, 2006
Court of Appeals No. A-9540 (Alaska Ct. App. Dec. 6, 2006)
Case details for

Haugen v. State

Case Details

Full title:CHRISTOPHER L. HAUGEN, Appellant v. STATE OF ALASKA, Appellee

Court:Court of Appeals of Alaska

Date published: Dec 6, 2006

Citations

Court of Appeals No. A-9540 (Alaska Ct. App. Dec. 6, 2006)