Opinion
Court of Appeals No. A-9337.
February 7, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court No. 4FA-02-817 CR.
James M. Hackett, Law Office of James M. Hackett, Fairbanks, 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
Seneca L. White contends that the superior court illegally found several statutory aggravating factors codified in AS 12.55.155(c). White argues that, under the United States Supreme Court's decision in Blakely v. W ashington, the Sixth Amendment guarantees a right to jury trial with respect to these aggravating factors.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The superior court found that several statutory aggravating factors applied. We conclude that Blakely is satisfied because one of the aggravating factors found by the superior court, aggravator (c)(7), which requires the State to show that an undisputed prior felony conviction was of a more serious class of felony, presents a question for the sentencing judge, not a question for a jury.
Factual and procedural background
On February 22, 2002, the police arrested White for possessing cocaine. The State charged White with fourth-degree misconduct involving a controlled substance, a class C felony. At the time White was arrested, he was on probation for a prior conviction for second-degree sexual abuse of a minor, a class B felony.
AS 11.71.040(a) (d).
AS 11.41.436(a) (b).
At trial, the jury convicted White as charged. White was a third felony offender, and under the pre-2005 sentencing code, he faced a presumptive 3-year term. The State alleged six statutory aggravating factors from AS 12.55.155: (c)(7) (White had a prior felony conviction of a more serious class than the present offense); (c)(10) (White's conduct constituting the offense was among the most serious included in the definition of the offense); (c)(20) (White was on probation for a prior felony conviction); (c)(21) (White has a criminal history of repeated instances of conduct violative of criminal laws similar in nature to the present offense); (c)(24) (White was convicted of a felony drug offense that involved the transportation of controlled substances into the state); and (c)(25) (White's felony drug offense involved large quantities of a controlled substance).
See former AS 12.55.125(e)(2).
White conceded aggravators (c)(7) and (c)(20), and contested the others. He also asserted one mitigator, (d)(14) (White's felony drug offense involved small quantities of a controlled substance).
At sentencing, Superior Court Judge Niesje J. Steinkruger confirmed that White had conceded aggravators (c)(7) and (c)(20). Judge Steinkruger also found that each of the other four aggravators were proven by clear and convincing evidence and rejected the mitigating factor. Judge Steinkruger imposed the maximum 5-year term. Two weeks later, Superior Court Judge Charles R. Pengilly revoked White's probation in the sexual abuse case and imposed 2 years' suspended imprisonment.
See former AS 12.55.125(e).
White appealed his conviction and sentence, challenging Judge Steinkruger's finding of aggravators (c)(10) and (c)(25), and also arguing that his sentence was excessive. This court affirmed both his conviction and his sentence.
See White v. State, Alaska App. Memorandum Opinion and Judgment No. 4994 at 19 (July 20, 2005), 2005 WL 1683551 at *9.
White then filed a motion to correct an illegal sentence under Alaska Criminal Rule 35(a). White argued that Judge Steinkruger's reliance on aggravating factors that were not found by a jury violated his rights under the Sixth Amendment as established by Blakely. Judge Steinkruger denied White's motion.
Whether a defendant's undisputed prior felony conviction is a more serious class of offense than the defendant's present felony is an issue to be decided by the sentencing judge, not the jury
Although Judge Steinkruger found six aggravators, we must only determine if any one of those aggravators is Blakely-compliant. We held in Cleveland v. State that "the defendant's right to jury trial under Blakely is satisfied if there is at least one Blakely-compliant aggravating factor — i.e., at least one aggravating factor that flows directly from the jury's verdict, or is admitted by the defendant, or is based on the defendant's prior convictions."
143 P.3d 977 (Alaska App. 2006).
Id. at 984-85.
The right to jury trial recognized in Blakely does not apply to aggravator (c)(7) when the existence of the prior conviction is undisputed. White conceded the fact of his prior conviction for second-degree sexual abuse of a minor. Accordingly, Judge Steinkruger's acceptance of White's concession of aggravator (c)(7) involved only an application of the law to undisputed facts. Under Alaska law, second-degree sexual abuse of a minor is a more serious class of felony than fourth-degree misconduct involving a controlled substance, White's present offense. For these reasons, we reject White's claim that his sentencing violated Blakely.
Milligrock v. State, 118 P.3d 11, 16 (Alaska App. 2005).
Compare AS 11.41.436(b) (second-degree sexual abuse of a minor is a class B felony) with AS 11.71.040(d) (fourth-degree misconduct involving a controlled substance is a class C felony).
Conclusion
The judgment of the superior court is AFFIRMED.