Opinion
Court of Appeals No. A-8978.
June 21, 2006.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge. Trial Court No. 3PA-03-577 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
Phillip C. Pooley entered into a plea agreement that called for him to plead no contest to one count of first-degree sexual abuse of a minor. The agreement barred the superior court from imposing more than 10 years of unsuspended imprisonment. In exchange, the State dismissed a count in the indictment charging Pooley with first-degree sexual assault. Pooley faced an 8-year presumptive term for first-degree sexual abuse of a minor. The State alleged two statutory aggravating factors from AS 12.55.155(c): (c)(18) (Pooley committed the felony sexual offense against a member of his household and/or Pooley engaged in other criminal sexual misconduct with the same or another victim) and (c)(10) (Pooley's conduct constituting the offense was among the most serious within the definition of the offense).
AS 11.41.434(a)(1).
AS 12.55.125(i).
At sentencing on June 1, 2004, Pooley conceded aggravator (c)(18), but objected to aggravator (c)(10). The parties agreed that the superior court would resolve the dispute over (c)(10) by relying on the presentence report. After reviewing the presentence report, Superior Court Judge Beverly W. Cutler found, by clear and convincing evidence, that Pooley's conduct was among the most serious within the definition of the offense. Judge Cutler imposed the 8-year presumptive term of unsuspended imprisonment and added an additional 7 years of suspended imprisonment, relying on aggravator (c)(10). Judge Cutler signed a written judgment on June 1, but the judgment was not distributed until June 30, 2004.
In the intervening period, the United States Supreme Court decided Blakely v. Washington. Because Pooley's conviction was not final when Blakely was issued, Blakely applies to Pooley's case.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649 (1987).
On August 26, 2004, Pooley filed a motion under Criminal Rule 35(a) seeking correction of his sentence. Pooley argued that, under Blakely, his sentence was illegal because the two aggravating factors should have been presented to a jury. Pooley argued the superior court had no authority to impose a sentence greater than the 8-year presumptive term that applied to Pooley's offense.
The State opposed Pooley's motion, but did not address the merits of Pooley's Blakely argument. Instead, the State claimed only that Pooley could not raise this argument in a Rule 35(a) motion.
After receiving the State's opposition, Judge Cutler summarily denied Pooley's motion. Because Judge Cutler offered no explanation of her decision, it appears that she adopted the State's position that Criminal Rule 35(a) was not a proper vehicle for raising a Blakely claim.
Recently, in Walsh v. State, we ruled that a sentence imposed in violation of Blakely is an "illegal sentence" for purposes of Criminal Rule 35(a). Thus, Pooley was entitled to pursue his Blakely claim in a Rule 35(a) motion, and the superior court erred when it dismissed Pooley's motion on the procedural ground argued by the State.
134 P.3d 366, (Alaska App. 2006).
Id. at 374.
Conclusion
The superior court's order dismissing Pooley's Rule 35(a) motion is REVERSED. We remand the case for further proceedings on Pooley's motion.