Opinion
Court of Appeals No. A-9545.
April 25, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-00-5925 CR.
David W. Miner, Law Offices of David Miner, Seattle, Washington, 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 2000, Andreas S. Kirchner and a cohort robbed and assaulted Dwayne Clevenger. Based on this conduct, the grand jury charged Kirchner and his cohort with one count of first-degree robbery and one count of first-degree assault. Kirchner negotiated a plea bargain with the State. In exchange for Kirchner's no contest plea to first-degree robbery, the State agreed to dismiss the assault charge at sentencing. The parties agreed that Kirchner would face a 7-year presumptive term, that the State could propose aggravating factors, and that any additional jail time imposed would be suspended. At sentencing, the superior court imposed an 11-year term with 4 years suspended.
AS 11.41.500(a)(2) (3) and AS 11.41.200(a)(1) (3), respectively.
In 2005, Kirchner moved to correct an illegal sentence under Alaska Criminal Rule 35(a), arguing that the superior court's reliance on statutory aggravating factors to impose the 4 years of suspended imprisonment without submitting the aggravating factors to a jury violated Blakely v. Washington. Kirchner also claimed that the sentence was illegal because the superior court did not specifically find the aggravating factors or discuss the significance of the aggravating factors when imposing sentence. Because we reject Kirchner's arguments and find no plain error, we affirm the superior court's dismissal of Kirchner's Rule 35(a) claims.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Facts and proceedings
On May 29, 2000, Andreas S. Kirchner and Shaun R. Pagsolingan invited Dwayne Clevenger into a truck. Their plan was to rob Clevenger. Pagsolingan drove the three to a trailer park where Kirchner, who was sitting behind Clevenger, struck Clevenger in the back of the head with a baseball bat and attempted to take Clevenger's wallet and other property. Clevenger tried to escape and fell out of the moving truck. Pagsolingan drove over him, fracturing Clevenger's leg. (Restitution for Clevenger's medical expenses approached $20,000.) The grand jury indicted Kirchner and Pagsolingan for first-degree robbery and first-degree assault.
As a first felony offender, Kirchner faced a 7-year presumptive term and a 20-year maximum for each count because he had used a dangerous instrument (the baseball bat) and because he had caused serious physical injury during the commission of the crime.
See AS 11.41.500(b) AS 11.41.200(b); former AS 12.55.125(c)(2)(A).
Kirchner's plea agreement with the State called for Kirchner to plead no contest to first-degree robbery, and in exchange, the State agreed to dismiss the assault charge. The parties also agreed that any imprisonment imposed over the 7-year presumptive term would be suspended. After Kirchner entered his no contest plea, the prosecutor provided a factual basis for the plea that included facts that supported several aggravating factors. Kirchner did not object to or otherwise dispute this statement.
In its sentencing memorandum, the State provided written notice of its intent to rely on four statutory aggravating factors under AS 12.55.155: (c)(1) (Clevenger sustained physical injury as a direct result of the defendant's conduct); (c)(2) (Kirchner's conduct during the commission of the offense manifested deliberate cruelty to Clevenger); (c)(4) (Kirchner employed a dangerous instrument, the baseball bat, in furtherance of the offense); and (c)(10) (Kirchner's conduct constituting the offense was among the most serious conduct included in the definition of the offense). The State explained that although the facts underlying aggravators (c)(1) and (c)(4) were the same facts that triggered the increased presumptive term of 7 years, either one of these facts (use of a dangerous instrument or infliction of serious physical injury) was sufficient to trigger the increase in the presumptive term, so the other could be used as an aggravating factor.
See former AS 12.55.155(e) (prohibiting use of a factor to aggravate a presumptive term if it is a necessary element of the present offense or requires the imposition of the presumptive term).
Although Criminal Rule 32.1(d)(1) requires the defendant to file notice if he concedes or opposes the State's notice of aggravating factors, Kirchner did not do so.
At the sentencing hearing before Superior Court Judge Michael L. Wolverton, Kirchner did not dispute or oppose any of the aggravating factors. In fact, his attorney implicitly acknowledged that at least one aggravating factor was established because the attorney stated "[Kirchner] needs a significant period of suspended time [above the 7-year presumptive term]." In other words, the defense attorney was arguing for a sentence that would be unlawful in the absence of aggravating factors. Thereafter, Judge Wolverton made the following comments in imposing sentence:
I think the sentencing criteria would be met by the sentence that has been negotiated, to the degree of the 7-year period of incarceration, which meets the goals of community condemnation and isolation required for this type of offense. I think there does need to be a substantial period of suspended jail time in addition, based upon the aggravating factors involved, again to represent the community condemnation of this type of behavior and to serve as a deterrent for future conduct of that kind.
Judge Wolverton did not explicitly discuss the individual aggravating factors or the standard of proof. He imposed the 7-year presumptive term plus an additional 4 years of suspended imprisonment.
Four years later, in February 2005, Kirchner filed a motion to correct an illegal sentence under Criminal Rule 35(a), arguing that Judge Wolverton violated Kirchner's Sixth Amendment right to jury trial under Blakely when he relied on aggravating factors that were not proved to a jury beyond a reasonable doubt to enhance Kirchner's sentence beyond the presumptive term. Judge Wolverton denied the motion, holding that Blakely did not apply because Kirchner's sentence was final before Blakely was decided. Kirchner filed another motion to correct an illegal sentence in May 2005, this time arguing that during the original sentencing Judge Wolverton failed to make specific findings with respect to the aggravating factors in violation of AS 12.55.155(f) and Juneby v. State. Judge W olverton denied the second motion, ruling that it was "clear from the change-of-plea proceedings that the parties contemplated and incorporated the referenced aggravating factor in the sentencing." This appeal follows. Discussion
641 P.2d 823 (Alaska App. 1982).
Former AS 12.55.155(f) provided that "[f]actors in aggravation and factors in mitigation must be established by clear and convincing evidence before the court sitting without a jury" and that "[a]ll findings must be set out with specificity." When we discussed this subsection in Juneby, we stated as follows:
We believe that the provisions of subsection (f) must be read to require more than a pro forma, conclusory statement that an aggravating or mitigating factor has or has not been shown by clear and convincing evidence. Such a finding is of little utility in preserving the rights of the parties in a sentence appeal. We conclude that subsection (f)'s requirement that findings "be set out with specificity" calls for sentencing judges to include, in their remarks on the record, the following specific information: (1) the specific factors in aggravation and in mitigation found to have been established by clear and convincing evidence; (2) the evidence upon which the court has relied in finding the existence of aggravating or mitigating factors; (3) an explanation of the weight given by the court to each aggravating or mitigating factor, and the relative importance of each factor in comparison with other aggravating or mitigating factors established; and (4) an evaluation of the totality of the aggravating and mitigating factors in light of the Chaney criteria, as expressed in AS 12.55.005, in order to determine the amount by which the presumptive sentence for the particular offense should be adjusted.
Id. at 846.
The record shows that Judge Wolverton did not make specific findings about the aggravating factors when he increased Kirchner's sentence above the presumptive term other than his general comment quoted above: "I think there does need to be a substantial period of suspended jail time in addition, based upon the aggravating factors involved[.]" Kirchner argues that his sentence is illegal under Juneby because Judge Wolverton did not make specific findings.
The State notes that Kirchner did not dispute or object to the proposed aggravators, and failed to object to the prosecutor's recitation of the factual basis for his plea, particularly the facts that Clevenger suffered physical injury and that Kirchner used a baseball bat to strike Clevenger — facts that support aggravating factors (c)(1) and (c)(4) respectively. Nor did Kirchner contest any parts of the presentence report that described Kirchner's conduct in the offense. Kirchner still does not dispute those facts.
In Haire v. State, the defendant conceded four statutory aggravating factors but the sentencing judge made no specific findings concerning those factors. Haire argued on appeal that the judge erred by failing to make express findings that the aggravators were supported by the evidence. We ruled that the judge's failure to make specific findings was not plain error because the record contained sufficient information to support the aggravating factors.
877 P.2d 1302 (Alaska App. 1994).
Id. at 1303-04.
Id. at 1304.
Id.
We reach the same conclusion in this case. The record in the case contains sufficient information to establish the aggravating factors proposed by the State. Therefore, it was not plain error to fail to discuss the aggravating factors individually.
Kirchner next argues that his Sixth Amendment right to jury trial was violated because the aggravating factors were not proved to a jury beyond a reasonable doubt. The State argues that Kirchner's sentence is not "illegal" under Criminal Rule 35(a), but we have already ruled that "a sentence imposed in violation of Blakely . . . is an 'illegal sentence' for purposes of Criminal Rule 35(a)." Although Kirchner was sentenced long before Blakely was decided, we have also held that Blakely applies retroactively.
Walsh v. State, 134 P.3d 366, 374 (Alaska App. 2006).
Smart v. State, 146 P.3d 15, 35 (Alaska App. 2006).
Kirchner did not dispute the State's sentencing memorandum and did not object under Criminal Rule 32.1(d)(5) to the information contained in the presentence report. At sentencing, Kirchner implicitly conceded that aggravating factors were proved when he suggested that Judge Wolverton aggravate his sentence by imposing suspended time above the presumptive term.
Under Cleveland v. State, one Blakely-compliant statutory aggravating factor authorizes a sentencing judge to aggravate a presumptive term. However, even if there was error under Blakely, that error is harmless if there is no reasonable possibility that a jury (applying the "beyond a reasonable doubt" standard of proof) would not have found aggravating factors (c)(1) or (c)(4). That is the case here. There is no reasonable possibility that a jury would find in Kirchner's favor on either (c)(1) or (c)(4). Therefore, even if there were any Blakely error, it would be harmless.
143 P.3d 977 (Alaska App. 2006).
Id. at 984-85.
See Ned v. State, 119 P.3d 438, 444 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005).
Finally, there is an additional reason why any potential Blakely error in Kirchner's case is not plain error. Kirchner was sentenced pursuant to a plea bargain negotiated with the State. Kirchner's Rule 35(a) motion explicitly asked the judge to eliminate his suspended imprisonment, but implicitly asked the court to hold the State to its side of the bargain. As part of the plea bargain, the State dismissed another class A felony charge, first-degree assault, that appeared to be well supported by the facts. We addressed a similar issue in Grasser v. State.
119 P.3d 1016 (Alaska App. 2005).
If Grasser now believes that he agreed to an illegal procedure or an illegal sentence when he negotiated his plea bargain with the State, his proper course of action is to ask the [trial] court to allow him to withdraw his pleas ( i.e., rescind the plea bargain). Because Grasser negotiated a plea agreement with the government, and because he was sentenced under the terms of that agreement, Grasser can not now claim the benefit of the portions of the agreement that he likes while, at the same time, mounting an appellate attack on the portions that he does not like.
Id. at 1018.
Thus when a defendant wishes to challenge the sentence imposed pursuant to a plea agreement as being unlawful, the defendant must move to withdraw from the agreement instead of seeking elimination of those provisions unfavorable to the defendant. Conclusion
The judgment of the superior court is AFFIRMED.