Opinion
Court of Appeals No. A-9147.
November 22, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-95-7762 CR.
David W. Miner, Assistant Public Advocate, and Joshua Fink, Public Advocate, 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
In 1995, the grand jury charged Galacia A. Hiratsuka with first-degree sexual assault and second-degree assault. In March 1996, Hiratsuka pleaded to one count of attempted first-degree sexual assault. As part of that plea agreement, Hiratsuka agreed that the superior court would impose the 7-year presumptive term to serve and that the court would be authorized to impose additional suspended imprisonment if it found statutory aggravating factors. Superior Court Judge Mark C. Rowland found several aggravating factors and, in addition to the 7-year presumptive term, imposed 5 years of suspended imprisonment.
AS 11.41.410(a)(1) AS 11.41.210(a)(1), respectively.
AS 11.41.410(a)(1) AS 11.31.100.
Eight years later, while Hiratsuka was awaiting disposition of his fourth petition to revoke probation, the United States Supreme Court decided Blakely v. Washington. Hiratsuka filed a motion for discharge from probation, arguing that his original sentence of 12 years with 5 years suspended was unconstitutional under Blakely. Under Blakely, a defendant normally has a right to jury trial, and a right to demand proof beyond a reasonable doubt, when a court's maximum sentencing authority hinges on issues of fact. But Blakely exempts from this rule issues of fact that are based on a defendant's prior convictions, at least when the fact of those convictions is not disputed.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Superior Court Judge Larry D. Card denied Hiratsuka's motion, concluding that Blakely did not apply retroactively to Hiratsuka's case because his conviction was final before Blakely was issued. Hiratsuka appeals.
We affirm because we conclude that Hiratsuka's sentence complies with Blakely. Discussion
Hiratsuka's plea agreement provided that the court could impose no more than the 7-year presumptive term to serve, but that the court could impose additional suspended time if it found aggravating factors. The State proposed four statutory aggravating factors under AS 12.55.155(c): (c)(1), that a person other than an accomplice sustained physical injury as a direct result of the defendant's conduct; (c)(4), that the defendant employed a dangerous instrument in furtherance of the offense; (c)(8), that the defendant's prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior; and (c)(10), that the conduct constituting the offense was among the most serious conduct included in the definition of the offense. Hiratsuka conceded aggravator (c)(4), but the parties agreed that, because Hiratsuka's presumptive term had already been enhanced based on his use of a firearm, it should not be used to further aggravate his sentence. Hiratsuka did not concede or object to the other aggravators. Judge Rowland found all the proposed aggravators.
Pursuant to the plea agreement, Judge Rowland imposed the 7-year presumptive term to serve. He imposed an additional 5 years of suspended imprisonment based on the aggravating factors he found. Hiratsuka did not appeal his sentence.
On September 23, 2003, the State filed its fourth petition to revoke Hiratsuka's probation. The petition alleged that Hiratsuka had violated special condition two of his probation by purchasing and consuming alcohol. While awaiting resentencing on the petition to revoke probation, Hiratsuka filed a motion for discharge from probation. Hiratsuka argued that his original sentencing proceeding violated his right to a jury trial under Blakely because Judge Rowland imposed the 5 years of suspended time based on aggravating factors that were not submitted to a jury.
Hiratsuka brought his Blakely claim as a challenge to the imposition of suspended time upon revocation of his probation. In the superior court, the State interpreted Hiratsuka's motion as a Criminal Rule 35(a) motion to correct an illegal sentence and argued that Hiratsuka's claim could not be heard in a Rule 35(a) motion.
In this appeal, the State renews its argument that Hiratsuka's Blakely claim is not cognizable as a Rule 35(a) motion. But, in Walsh v. State, we held that a defendant could use a Rule 35(a) motion to attack a sentence purportedly imposed in violation of Blakely.
134 P.3d 366 (Alaska App. 2006).
Id. at 373-74.
The State also argues that Blakely does not apply retroactively to a conviction that was final before Blakely and its predecessor, Apprendi v. New Jersey, were issued. But we recently held that Blakely is fully retroactive. Consequently, Hiratsuka is entitled to challenge his sentence under Blakely because the court imposed his 5-year suspended term of imprisonment based on aggravating factors that were not submitted to a jury.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Smart v. State, ___ P.3d ___, Alaska App. Opinion No. 2070 (Oct. 27, 2006), 2006 WL 3042821.
See Haag v. State, 117 P.3d 775, 783-84 (Alaska App. 2005).
As noted earlier, Hiratsuka brought his Blakely claim as a challenge to the imposition of suspended time upon revocation of his probation. We have not decided whether a defendant is entitled to pursue a Blakely challenge to his original sentence in a probation revocation proceeding. But we need not resolve that claim in this case because the State relied only on Hiratsuka's criminal convictions to establish aggravating factor (c)(8). In Milligrock v. State, we held that aggravator (c)(8) falls within Blakely's prior conviction exception when it is based entirely on a defendant's prior convictions.
118 P.3d 11 (Alaska App. 2005).
Id. at 16.
Under the pre-2005 sentencing code, once the court found any statutory aggravating factor it was authorized by law to impose a sentence up to the maximum for the offense. Recently, in Cleveland v. State, we held that Blakely is satisfied when a sentencing court finds at least one Blakely-compliant aggravating factor. Thus, after finding aggravator (c)(8), the sentencing court could consider other aggravating factors that had not been found by a jury without violating Blakely. We conclude that Judge Card properly denied Hiratsuka's motion to discharge him from probation.
Former AS 12.55.155(a)(2) (pre-March 2005 version).
143 P.3d 977, Alaska App. Opinion No. 2060 (Aug. 25, 2006), 2006 WL 2458578.
Id., Opinion No. 2060 at 22, 2006 WL 2458578 at *11.
Conclusion
The judgment of the superior court is AFFIRMED.