Opinion
Court of Appeals No. A-9240.
September 12, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, and Michael L. Wolverton, Judges, Trial Court No. 3AN-00-10009 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 Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Ronnie G. Smith was convicted, following a plea agreement, of one count each of assault in the third degree, failing to stop at the direction of a peace officer in the first degree, and driving while intoxicated. The assault and failing to stop charges were class C felonies and the DWI was a class A misdemeanor. Smith was convicted under the pre-March 2005 sentencing provisions. Smith was a third felony offender for purposes of presumptive sentencing. Therefore, under the pre-2005 sentencing provisions, he faced a presumptive term of 3 years of imprisonment on each of the class C felonies. Superior Court Judge Dan A. Hensley found several aggravating factors and imposed aggravated presumptive sentences of 5 years with 2 years suspended for each felony offense. He imposed the sentences consecutively in part, for a composite sentence of 8 years with 4 years suspended. Judge Hensley placed Smith on probation for 10 years following his release from incarceration. (The misdemeanor sentence is not in issue.)
AS 11.41.220(a)(1), AS 28.35.182(a), and AS 28.35.030(a)(1), respectively.
AS 11.41.220(d), AS 28.35.182(e), and AS 28.35.030(b), respectively.
Former AS 12.55.125(e) (2002).
After serving his sentence of incarceration, Smith's probation was revoked. Superior Court Judge Michael L. Wolverton ordered him to serve 8 months of his previously suspended time.
Smith filed a motion under Criminal Rule 35(a) in which he argued that Judge Hensley's original sentences, which relied on judge-found aggravating factors, violated his rights under Blakely v. Washington. Judge Wolverton denied the motion, holding that Blakely did not apply retroactively to Smith's case. Smith appeals this decision.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Factual background
Just after midnight on November 22, 2000, Anchorage Police Officer Hobson was monitoring traffic on Ingra Street when he observed a maroon Cadillac traveling at a high rate of speed. Officer Hobson observed the Cadillac speeding to catch up to slower traffic, and making abrupt lane changes to avoid hitting slower vehicles. Officer Hobson measured the Cadillac's speed in excess of 75 miles per hour. He activated his overhead emergency lights and attempted to conduct a traffic stop. But the driver of the Cadillac (later identified as Ronnie Smith) attempted to evade Officer Hobson by driving erratically, abruptly veering back and forth between lanes and cutting off traffic, and zigzagging through residential neighborhoods and alleys.
As the Cadillac reached the intersection of East Ninth Avenue and Karluk Street, the driver veered into oncoming traffic to avoid vehicles stopped at the intersection's stop sign. The Cadillac proceeded through the stop sign without stopping. Anchorage Police Officer Matthew Bloodgood, monitoring the pursuit on his patrol car radio, observed the Cadillac cross Karluk Street and proceed onto East Ninth Avenue. While traveling westbound in the eastbound lane of Ninth Avenue, the Cadillac drove straight toward Officer Bloodgood's marked patrol car. As Officer Bloodgood prepared to swerve to avoid a head-on collision, the Cadillac veered around the police car. Officer Bloodgood estimated that the vehicle swerved about two or three car lengths before it would have struck the front of his patrol car.
Smith continued to evade pursuing police vehicles and proceeded through a red light back onto Ingra Street. The Cadillac collided with a Subaru driven by Ronald Aksamit, who suffered a contusion to his right outer knee. The Cadillac then collided with the passenger side of a Chevrolet driven by Michael Baldwin, who suffered cuts and abrasions to his arm. The impact caused the Chevrolet to turn on its side and slide into another vehicle. The passenger in this vehicle, Trinidad Villaester, suffered head, neck, and back injuries. The Cadillac also struck a Plymouth driven by Laura Bain, who suffered head and neck injuries.
At this point, heavy smoke was emanating from the Cadillac and it was driving on the rim of a flat front tire. The Cadillac had sustained heavy front-end and driver-side damage as a result of the various collisions. Smith continued to attempt to elude police by driving into the post office parking lot at East Ninth Avenue and Ingra Street. Smith drove over the sidewalk and into the parking lot, where it struck a parked sedan. The Cadillac proceeded toward East Eighth Avenue and attempted to turn westbound when it struck a silver Dodge pickup truck parked in the lot of an auto repair shop. The Cadillac pushed the truck several feet before coming to a stop. Smith then climbed out of the car window and attempted to flee on foot from Officer Hobson. Smith ignored several verbal commands to stop before he was apprehended by the police a short distance away from the Cadillac.
Arresting officers noted that Smith had an odor of alcohol about his person, his speech was slightly slurred, his movements were jerky, and he was extremely agitated. He appeared to be under the influence of some type of substance and was yelling that he was being chased by "demons."
Smith did not contest these facts at sentencing. Smith did not object to the fact that the "presentence report writer and the State seem to be ignoring that Mr. Smith suffers from a serious and significant mental illness: schizophrenia."
Discussion
Under the pre-March 2005 sentencing provisions, Smith as a third felony offender, was subject to a 3-year presumptive term on each class C felony. But, if the court found one or more aggravating factor, the court was authorized to impose up to the 5-year maximum sentence. Judge Hensley found several aggravating factors. Smith argues that, under the Blakely decision, the State was required to prove the aggravating factors to a jury beyond a reasonable doubt. To resolve this case, we need only focus on a single aggravating factor: that "the defendant's conduct created a risk of imminent physical injury to three or more persons, other than accomplices." This is because, if Judge Hensley found a single Blakely-compliant aggravating factor, he was legally authorized to impose up to the maximum sentence.
Former AS 12.55.125(e) (2002).
AS 12.55.155(c)(6).
Cleveland v. State, 143 P.3d 977, 988 (Alaska App. 2006).
Under Blakely, a judge is authorized to find aggravating factors based upon facts admitted by the defendant. This means that when the defendant concedes an aggravating factor, the sentencing judge is entitled to rely on that aggravating factor. In the present case, Smith conceded aggravating factor (c)(6) as to both charges. It is not plain error for a judge to accept an attorney's concession of an aggravating factor without obtaining a personal waiver from the defendant of his right to a jury trial.
Blakely, 542 U.S. at 303-04, 124 S. Ct. at 2537.
Peltola v. State, 117 P.3d 771, 773 (Alaska App. 2005).
Cooper v. State, 153 P.3d 371, 372-73 (Alaska App. 2007).
Furthermore, a sentencing judge does not commit plain error when there is no reasonable possibility that, if the aggravator had been submitted to a jury, the jury would have found in the defendant's favor. In the present case, Smith conceded the facts as set out in the pre-sentence report. Based upon these facts, there is no reasonable possibility that a jury would have found in Smith's favor on the question of whether his driving endangered three or more persons. Under very similar facts we concluded, in Walsh v. State, that any error in failing to submit the aggravator that the defendant's conduct endangered three or more persons was harmless beyond a reasonable doubt.
Id. at 373.
134 P.3d 366 (Alaska App. 2006).
Id. at 374.
Additionally, Smith argues that the Alaska Constitution provides a separate right to a jury trial at sentencing. But we have held that there is no independent right under the Alaska Constitution to a jury trial on aggravating factors.
Lockuk v. State, 153 P.3d 1012, 1017 (Alaska App. 2007).
We accordingly conclude that Judge Hensley did not commit plain error in finding the aggravating factor that Smith's conduct endangered three or more persons. Therefore, Judge Hensley was authorized by statute to impose up to the maximum sentence of 5 years of imprisonment on each of Smith's convictions. Because Judge Hensley did not impose an illegal sentence, Judge Wolverton did not err in dismissing Smith's Criminal Rule 35(a) motion.
The judgment of the superior court is AFFIRMED.