Opinion
No. A-9410.
January 24, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Court of Appeals No. A-9410, Trial Court No. 3AN-02-2791 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
On April 4, 2002, Ignatius A. Tyson eluded Anchorage Police patrol cars during a pursuit that covered several miles on the Glenn Highway. For his conduct leading up to his eventual stop, the grand jury charged Tyson with five felonies: first-degree eluding a police officer, two counts of third-degree assault, second-degree criminal mischief, and first-degree vehicle theft. Tyson reached a plea agreement with the State: the State filed a two-count information charging first-degree eluding a police officer and second-degree criminal mischief, both class C felonies, and Tyson stipulated that statutory aggravating factor AS 12.55.155(c)(20) — Tyson was on felony probation when he committed the present offenses — applied to his convictions. Because Tyson had a prior felony conviction, he faced a presumptive 2-year term on each count under the pre-March 2005 sentencing code.
AS 28.35.182(a); AS 11.41.220(a)(1)(A); former AS 11.46.482(a)(1); and AS 11.46.360(a)(1), respectively.
AS 28.35.182(a) and former AS 11.46.482(a)(1), respectively.
AS 28.35.182(e) and former AS 11.46.482(b), respectively.
See former AS 12.55.125(e)(1).
The superior court accepted the parties' stipulation that aggravator (c)(20) applied. The superior court imposed 4 years with 2 years suspended on each count. The unsuspended imprisonment was imposed concurrently, and the suspended imprisonment was imposed consecutively. Thus, the superior court imposed a composite term of 6 years with 4 years suspended.
Tyson was released on probation on February 5, 2005. Shortly after his release, the State filed a petition to revoke his probation, requesting that the superior court impose at least 1 year of Tyson's suspended imprisonment.
Tyson filed a motion to correct an illegal sentence under Alaska Criminal Rule 35(a), arguing that the superior court's reliance on aggravator (c)(20) violated his right to jury trial under the Sixth and Fourteenth Amendments to the federal Constitution, as interpreted by the United States Supreme Court in Blakely v. Washington.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Superior Court Judge Philip R. Volland rejected Tyson's Blakely argument, revoked Tyson's probation, and imposed 1 year of Tyson's suspended imprisonment.
In this appeal, Tyson renews his argument that his sentence is illegal because a jury did not find beyond a reasonable doubt that he was on probation at the time of the Glenn Highway incident.
In Snelling v. State, we held that when "it is undisputed that [the defendant] was a felony probationer when he committed his current offense, any error in failing to give him a jury trial on [aggravator (c)(20)] is harmless beyond a reasonable doubt."
123 P.3d 1096 (Alaska App. 2005).
Id. at 1099.
Tyson has not disputed that he was on felony probation in the superior court or in this appeal.
In fact, Tyson stipulated to the aggravator as part of the plea agreement. In Grasser v. State, 119 P.3d 1016, 1018 (Alaska App. 2005), we ruled that the proper remedy for a defendant claiming that he had negotiated an illegal sentence was to move to withdraw the plea rather than attack only the portion of the plea agreement he no longer liked.
We conclude that Tyson's potential Blakely claims are harmless beyond a reasonable doubt.
Conclusion
The judgment of the superior court is AFFIRMED.