Opinion
Court of Appeals No. A-9378.
January 10, 2007.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-2794 Cr.
Laura C. McDonald, Assistant Public Defender, Palmer, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Marquez, Attorney General, Juneau, for the Appellee.
Before: COATS, CHIEF JUDGE, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION
Michael L. Thorn pleaded no contest to felony driving under the influence, AS 28.35.030(n). The State asserted, and Thorn did not dispute, that Thorn had five prior felonies for presumptive sentencing purposes. Thus, Thorn was a "third felony offender" as defined in AS 12.55.185(17) and, under the pre-March 2005 version of Alaska's presumptive sentencing law, he faced a 3-year presumptive term of imprisonment.
See AS 28.35.030(n) (felony DUI is a class C felony) and former AS 12.55.-125(e)(2) (pre-March 2005 version) (providing a 3-year presumptive term of imprisonment for a third felony offender convicted of a class C felony).
The State proposed one aggravating factor: AS 12.55.155(c)(15) — that Thorn had more than two prior felony convictions. Thorn did not dispute that, as a factual matter, he had more than two prior felonies. However, he argued that, under the Sixth Amendment right to jury trial as interpreted in Blakely v. Washington, he was entitled to a jury trial on this proposed aggravator.
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Thorn's defense attorney acknowledged that the State "ha[d] a good argument" that aggravator (c)(15) fell within the Blakely exception for aggravating factors based on a defendant's prior convictions. Nevertheless, the defense attorney contended that, under Blakely, Thorn was entitled to a jury trial on this aggravator — or that, in the alternative, Alaska's entire presumptive sentencing scheme was irretrievably unconstitutional because of Blakely.
See Blakely, 542 U.S. at 301, 124 S.Ct. at 2536. And see Apprendi v. New Jersey, 530 U.S. 466, 490; 120 S.Ct. 2348, 2362-63; 147 L.Ed.2d 435 (2000).
Superior Court Judge Eric Smith ruled that aggravator (c)(15) fell within the Blakely exception for prior convictions — and that, because the presumptive sentencing law was constitutional as applied to Thorn, Thorn had no standing to challenge the overall constitutionality of the sentencing law. Judge Smith then found that the State had proved aggravator (c)(15). Based on this aggravator, Judge Smith sentenced Thorn to 4 years' imprisonment ( i.e., one year more than the presumptive term).
Thorn now appeals his sentence. However, he does not challenge Judge Smith's ruling that aggravator (c)(15) falls within the Blakely exception for prior convictions, nor does he challenge Judge Smith's ruling that the State had proved this aggravator. Rather, Thorn argues that he is entitled to relief under the Alaska Constitution. In particular, Thorn argues that the Alaska Constitution guarantees a right of jury trial similar to the Sixth Amendment right to jury trial recognized in Blakely — except that the Alaska counterpart to Blakely contains no exception for a defendant's prior convictions.
This argument was not preserved when Thorn's case was litigated in the superior court. Thorn must therefore demonstrate that Judge Smith committed plain error when he failed to sua sponte recognize and apply this purported rule of Alaska constitutional law, even though the defense attorney made no mention of it.
Thorn's argument hinges on an expansive interpretation of the Alaska Supreme Court's decision in Donlun v. State, 527 P.2d 472 (Alaska 1974). According to Thorn, Donlun stands for the proposition that, when a defendant is subject to presumptive sentencing, aggravating factors must be pleaded in the grand jury indictment and must be proved to the trial jury beyond a reasonable doubt. We recently rejected this interpretation of Donlun. See State v. Dague, 143 P.3d 988, 994-98 (Alaska App. 2006).
In fact, in State v. Malloy, 46 P.3d 949 (Alaska 2002), the Alaska Supreme Court itself rejected the notion that Donlun required the State to allege aggravating factors in the indictment and ultimately prove these factors to a jury. The court stated: " Donlun . . . recognize[s] that an increased sentence resulting from a finding of statutory aggravating circumstances is not a harsher maximum sentence [for purposes of the Donlun / Apprendi rule]." Malloy, 46 P.3d at 955.
It thus appears that Thorn's argument is mistaken. But even assuming that Thorn's argument is debatable, it is no more than debatable. Because of this, Judge Smith did not commit plain error when he failed to raise this issue of Alaska constitutional law sua sponte (and then rule in Thorn's favor). A claim of plain error fails if reasonable judges could differ as to what the law requires. The judgement of the superior court is AFFIRMED.
See Heaps v. State, 30 P.3d 109, 116 (Alaska App. 2001); Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).