Opinion
Court of Appeals No. A-9311.
April 4, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge, Trial Court No. 4BE-96-0734 CR.
Linda K. Wilson, Assistant Public Defender, 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
Thomas Mute filed a motion under Alaska Criminal Rule 35(a) in which he argued that his sentence was illegal based upon the United States Supreme Court's decision in Blakely v. Washington. In Blakely, the Court held that the Sixth Amendment to the United States Constitution guarantees a defendant the right to have a jury determine beyond a reasonable doubt any disputed factual issue, other than a prior conviction, which increases the defendant's potential maximum sentence. In his motion, Mute claimed that the superior court violated Blakely by increasing the maximum sentence that he could receive based upon statutory aggravating factors without submitting those aggravating factors to a jury.
1542 U.S.296, 124 S.Ct. 2531, 159 L. Ed. 2d 403 (2004).
Id., 542 U.S. at 301-03, 124 S.Ct. at 2536-37.
The superior court denied Mute's motion. Mute appeals. We affirm the superior court because we conclude that at least one of the challenged aggravating factors was based upon Mute's prior convictions, and was therefore Blakely compliant.
Factual background
In 1997, Mute entered into a plea agreement with the State to plead no contest to sexual assault in the first degree. Under the pre-2005 sentencing provisions in effect at the time of Mute's conviction, sexual assault in the first degree was an unclassified felony with a maximum sentence of 30 years of imprisonment. Mute was a first-felony offender and was subject to a presumptive term of 8 years of imprisonment. Under the former code, if the State could prove an aggravating factor to the court by clear and convincing evidence, the court could impose a sentence up to the 30-year maximum.
AS 11.41.410(a)(1).
Former AS 12.55.125(i) (1998).
See former AS 12.55.125(i)(1) (1998).
See former AS 12.55.125(i) (1998) former AS 12.55.155(a)(2), (f) (1998).
Mute and the State agreed that Mute would receive a term of imprisonment of 9 years to serve. The agreement left the determination of the amount of suspended time and any conditions of probation up to the sentencing judge.
The State asserted, and Superior Court Judge Mary E. Greene found, several aggravating factors. One of those aggravating factors, which Mute conceded, was that Mute's "prior criminal history includes conduct involving aggravating or repeated instances of assaultive behavior." Judge Greene sentenced Mute to a total term of 18 years with 9 years to serve and 9 years suspended.
AS 12.55.155(c)(8).
After Mute served his initial term of imprisonment and was released on probation, the State filed a petition to revoke Mute's probation. The petition to revoke was based upon Mute's conviction for resisting arrest. Mute then filed a motion under Alaska Criminal Rule 35(a), arguing that his sentence was illegal under Blakely v. Washington because Judge Greene had relied on aggravating factors to increase his sentence above the 8-year presumptive term. He argued that his sentence was illegal under Blakely because the State had not proven these aggravating factors to a jury beyond a reasonable doubt.
Superior Court Judge Dan A. Hensley denied Mute's motion. Judge Hensley ruled that the Blakely decision did not apply retroactively to Mute's case and also that Mute could not properly bring his motion under Criminal Rule 35(a). Mute appeals this decision. Why we uphold Judge Hensley's decision denying Mute's 35(a) motion
In his appeal, Mute argues that his original sentence is illegal under Blakely to the extent that it exceeds the 8-year presumptive term. In the time since Judge Hensley's decision, this Court has decided several cases interpreting Blakely. We have decided that, contrary to Judge Hensley's ruling, the Blakely decision applies retroactively, and that Criminal Rule 35(a) is a proper vehicle to bring a Blakely challenge. But Judge Hensley's ruling is supported independently by several other recent decisions. The former sentencing code permitted the sentencing judge to impose up to the maximum sentence if the State proved a single aggravating factor. Therefore, in Cleveland v. State, we held that a sentencing court could, consistent with Blakely, impose up to the maximum sentence if the State proved one Blakely-compliant aggravating factor. In Milligrock v. State, we held that the aggravating factor that the defendant has a "[prior criminal] history of aggravated or repeated instances of assaultive behavior" could be established when it was based upon at least two undisputed assault convictions. This is because Blakely only guarantees the "right to a jury trial . . . with regard to any disputed factual issue, other than a prior conviction, which increases the defendant's maximum sentence." In the present case, Mute conceded the prior assault conviction aggravator and this aggravator is based upon the undisputed fact that Mute has several prior convictions for assault.
Smart v. State, 146 P.3d 15, 35 (Alaska App. 2006).
Walsh v. State, 134 P.3d 366, 373-74 (Alaska App. 2006).
Former AS 12.55.155(a)(2) (1998).
143 P.3d 977 (Alaska App. 2006).
Id. at 984-85, 988.
118 P.3d 11 (Alaska App. 2005).
Id. at 16.
Grohs v. State, 118 P.3d 1080, 1081 (Alaska App. 2005) (emphasis added) (citing Blakely, 542 U.S. at 301-03, 124 S. Ct. at 2536-38).
Mute argues against the continuing validity of the prior conviction exception to Blakely which we relied upon in Milligrock. But in Tyler v. State, we concluded that we are bound to follow this Supreme Court precedent "unless and until the United States Supreme Court actually modifies or eliminates this exception." Mute also argues that the prior conviction exception is not valid under Alaska Constitutional law. We recently rejected this contention in Active v. State.
133 P.3d 686, 689-90 (Alaska App. 2006).
Id. at 689-90.
___ P.3d ___, ___, Alaska App. Opinion No. 2086 at 25-26 (Mar. 9, 2007), 2007 WL 706629 at *14.
Furthermore, Mute's sentence was the result of a plea agreement with the State. In the event that Mute wants to withdraw from the plea agreement on the ground that he agreed to an illegal sentence, Mute should have moved to withdraw his plea. In Grasser v. State, we discussed a case where a defendant argued that the sentence that he agreed to was illegal:
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.
We have held that this reasoning applies to Blakely claims, such as Mute's. Therefore, because Mute's plea and sentence were the result of a plea agreement, he was required to move to rescind the plea agreement in order to attack his agreed-upon sentence as illegal.
Woodbury v. State, P.3d, Alaska App. Opinion No. 2081 at 7-8 (Jan. 26, 2007), 2007 WL 196003 at *4.
Conclusion
The judgment of the superior court is AFFIRMED.