Opinion
Court of Appeals No. A-9400.
February 28, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-03-8702 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
In August 2003, Nestor E. Swindler stole a motor vehicle and drove it into a large rock by the side of the road. The police officers who arrived at the scene found Swindler passed out in the vehicle. Following his arrest, Swindler refused to take the mandatory breath test. Swindler had four prior convictions for driving under the influence; two of these prior convictions were felonies.
Based on this incident, Swindler was charged with felony driving under the influence, felony refusal to submit to a breath test, first-degree vehicle theft, and driving with a revoked license. These charges were ultimately resolved by a plea bargain.
Under the terms of the plea agreement, Swindler pleaded no contest to the felony DUI charge and to a reduced charge of attempted first-degree vehicle theft. Swindler further agreed that he would receive the maximum sentence for both of these offenses; that is, he would receive a sentence of 5 years' imprisonment for the felony DUI and a sentence of 1 year's imprisonment for the attempted first-degree vehicle theft. Finally, Swindler agreed that these two sentences would be imposed consecutively, for a composite sentence of 6 years to serve. In exchange, the State dismissed the remaining charges.
See AS 28.35.030(n) (felony DUI is a class C felony); AS 12.55.125(e) (the maximum penalty for a class C felony is 5 years' imprisonment); AS 11.46.360(c) (first-degree vehicle theft is a class C felony); AS 11.31.100(d)(5) (an attempt to commit a class C felony is a class A misdemeanor); AS 12.55.135(a) (the maximum penalty for a class A misdemeanor is 1 year's imprisonment).
Because Swindler was a third felony offender, he faced a 3-year presumptive term for felony DUI (under the pre-March 2005 version of Alaska's presumptive sentencing law). And, under Alaska's presumptive sentencing law, the superior court had no authority to exceed this presumptive term and impose the agreed-upon maximum sentence for felony DUI — 5 years' imprisonment — unless the State proved one or more of the aggravating factors listed in AS 12.55.155(c). Thus, in order for the plea agreement to go forward, the superior court had to find one or more aggravating factors.
Former AS 12.55.125(e)(2) (pre-March 2005 version).
See AS 12.55.125(e) and 12.55.155(a)(1) (pre-March 2005 versions).
To this end, Swindler and the State stipulated that aggravator (c)(21) was proved. That is, they stipulated that Swindler had a criminal history that included "repeated instances of [unlawful conduct] similar in nature to the [felony DUI] offense for which [Swindler was] being sentenced".
On May 21, 2004, Swindler entered the contemplated pleas and received the agreed-upon sentences. The superior court's written judgement was distributed on May 25th.
Exactly thirty days later, on June 24th, the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
The following year (in June 2005), Swindler filed a motion under Alaska Criminal Rule 35(a), asserting that he had been sentenced in violation of the Sixth Amendment right to jury trial as interpreted in Blakely. The superior court concluded that Blakely did not apply retroactively, and the court therefore denied Swindler's motion.
This Court recently held that the Blakely right to jury trial does indeed apply retroactively; that is, this right applies to all criminal convictions, even those that were already final when the Blakely decision was announced. See Smart v. State, 146 P.3d 15, 35 (Alaska App. 2006), hearing granted February 13, 2007 (Supreme Court File No. S-12493). However, our resolution of Swindler's case does not hinge on the retroactivity of Blakely.
Even if we proceed under the assumption that Blakely is retroactive, Swindler did not raise a contemporary jury trial objection to his sentencing proceedings — and thus he must now show that these sentencing proceedings constituted plain error under Blakely.
See, e.g., Paige v. State, 115 P.3d 1244, 1248 (Alaska App. 2005).
(The State also argues that Swindler could not properly raise a Blakely claim under Criminal Rule 35(a). This Court recently held that a sentence imposed in violation of Blakely is an "illegal" sentence for purposes of Criminal Rule 35(a) — and, thus, a motion under Rule 35(a) is a proper procedural vehicle for raising a Blakely claim. See Walsh v. State, 134 P.3d 366, 374 (Alaska App. 2006).)
Although Blakely holds that a defendant is normally entitled to a jury trial (and entitled to demand proof beyond a reasonable doubt) on any issue of fact that will increase the defendant's maximum sentence, Blakely makes an exception for aggravating factors that are based on the defendant's prior convictions. We have repeatedly held that Blakely is not violated when the sentencing judge relies on a defendant's uncontested prior convictions to establish aggravating factors. In particular, we held in Grohs v. State, 118 P.3d 1080, 1084 (Alaska App. 2005), that a defendant has no right to jury trial on aggravator (c)(21) — the aggravating factor at issue in Swindler's case — when the State's proof of this aggravator is based on the defendant's uncontested prior convictions.
See Blakely, 542 U.S. at 301-02, 124 S.Ct. at 2536-37.
See, e.g., Cleveland v. State, 143 P.3d 977, 981-82 (Alaska App. 2006); Walsh v. State, 134 P.3d 366, 374 (Alaska App. 2006); Grohs v. State, 118 P.3d 1080, 1083-84 (Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 15-16 (Alaska App. 2005).
Swindler has never contested (either at his sentencing hearing, or in his Criminal Rule 35(a) motion in the superior court, or in his appellate briefs to this Court) that he has four prior convictions for driving under the influence. These convictions were a proper basis, under Blakely, for the superior court to find aggravator (c)(21) without submitting this issue to a jury.
Swindler argues that even if Blakely recognizes an exception for aggravators based on a defendant's prior convictions, the Alaska constitutional guarantee of jury trial also applies to the aggravators listed in AS 12.55.155(c), and Swindler further argues that the Alaska Constitution makes no exception for aggravators based on prior convictions. This argument was not presented to the superior court, so it is not preserved for appeal.
Moreover, Swindler can not possibly show plain error on this point. In State v. Malloy, 46 P.3d 949 (Alaska 2002), the Alaska Supreme Court expressly rejected the notion that the Alaska Constitution's guarantee of jury trial — as interpreted in Donlun v. State, 527 P.2d 472 (Alaska 1974) — required the State to prove sentencing aggravating factors to a jury beyond a reasonable doubt. The supreme court stated: " Donlun . . . recognize[s] that an increased sentence resulting from a finding of statutory aggravating circumstances is not a harsher maximum sentence [— and thus does not trigger a right to jury trial under Donlun]." Malloy, 46 P.3d at 955.
Given the supreme court's decision in Malloy (a decision which essentially rejected, on state law grounds, the position that the United States Supreme Court later adopted in Blakely), it is obvious that Swindler can not show that the superior court committed plain error by failing to recognize, sua sponte, a right to jury trial under the Alaska Constitution for aggravating factors — much less a right to jury trial that does not include any exception for aggravators based on prior convictions.
Swindler also asks us to predict, based on recent United States Supreme Court decisions, that the Supreme Court will ultimately abandon the prior-conviction exception to the Sixth Amendment right to jury trial.
Again, this argument was not presented to the superior court, so it is not preserved for appeal. Moreover, we recently explained why we must continue to apply the exception for prior convictions unless and until the Supreme Court changes the law — in other words, why we have no authority to anticipate the Supreme Court's possible reversal of its own precedent. See Tyler v. State, 133 P.3d 686, 689-691 (Alaska App. 2006).
In short, Swindler has failed to show that there was any Blakely error at his sentencing, much less plain error, and he has failed to show that the superior court committed plain error when the court failed to recognize, sua sponte, some broader right to jury trial under Alaska law.
Finally, there is one more reason why the superior court correctly denied Swindler's motion to correct his sentence.
Swindler's 5-year sentence for felony DUI was an integral part of his plea bargain. Swindler agreed to receive this maximum sentence (and a consecutive maximum sentence for the misdemeanor offense of attempted vehicle theft) in exchange for (1) reduction of the vehicle theft charge from a felony to a misdemeanor and (2) the dismissal of the remaining charges.
In Swindler's motion to "correct" his sentence, Swindler essentially asked the superior court to hold the State to its side of the bargain, but at the same time reduce Swindler's agreed-upon sentence from 5 years down to 3 years. Granting this request would have produced injustice, not cured it. We recently held, in Woodbury v. State, __ P.3d __, Alaska App. Opinion No. 2081 (January 24, 2007), 2007 WL 196003, that when a defendant wishes to challenge an already consummated plea agreement as being unlawful under Blakely, the defendant must seek rescission of the agreement — not selective enforcement of only those provisions favorable to the defendant. Woodbury, slip opinion at pp. 7-8, 2007 WL 196003 at *4.
For all of these reasons, the decision of the superior court is AFFIRMED.