Touch N' Go®,
the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch
N' Go's Website to see how.
State v. Delagarza (9/15/00) ap-1685
State v. Delagarza (9/15/00) ap-1685
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7505
Petitioner, ) Trial Court No. 3AN-S95-7576 CR
)
v. )
) O P I N I O N
JESSE R. DELAGARZA, )
)
Respondent. ) [No. 1685 September 15, 2000]
)
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Elaine M. Andrews, Judge.
Appearances: Douglas H. Kossler, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Petitioner. Leslie Hiebert, Assistant Public Advocate, and Brant G.
McGee, Public Advocate, Anchorage, for Respondent.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
This case requires us to decide if Jesse R. Delagarza's
convictions on two Oregon criminal offenses, second-degree robbery
[Fn. 1] and first-degree burglary, [Fn. 2] are "prior felony
convictions" for purposes of presumptive sentencing under AS
12.55.125. Because the elements of each of these two offenses are
similar to the elements of Alaska felonies, we conclude that they
are "prior felony convictions."
Facts and Proceedings
On October 8, 1995, Delagarza entered the Denny's
Restaurant on Denali Street in Anchorage, approached an employee,
and told her to "give me the money." He then said, "I have a .44
magnum in my pants and I can show you the gun." The employee opened
the cash register and gave Delagarza approximately $600 in cash.
As Delagarza left, the employee cried out for help. A few customers
responded and tackled Delagarza before he could flee. Delagarza's
handgun discharged during the struggle.
The Anchorage Police responded and seized $691 from
Delagarza and a .44 magnum Colt revolver that was listed as a stolen
firearm. Delagarza admitted that he had armed himself and decided
to rob Denny's.
Delagarza reached a plea agreement with the State. In
return for his waiver of indictment and for his no contest plea to
an information charging first-degree robbery, a class A felony,
[Fn. 3] the State agreed to dismiss the other charges against
Delagarza. The State alleged that Delagarza faced a presumptive
sentence of 15 years under AS 12.55.125(c)(4) because Delagarza had
two 1984 Oregon convictions for second-degree robbery. Delagarza
also had a 1983 Oregon conviction for first-degree burglary and a
1985 Oregon conviction for second-degree burglary. [Fn. 4]
Delagarza appeared before Superior Court Judge Elaine M.
Andrews for sentencing. Judge Andrews found that four statutory
aggravating factors from AS 12.55.155 applied to Delagarza's
sentencing: (c)(1), a person other than an accomplice sustained
physical injury as a result of defendant's conduct; (c)(9),
Delagarza knew that the offense involved more than one victim;
(c)(15), Delagarza had three or more prior felony convictions; and
(c)(21), Delagarza had a criminal history of repeated violations of
law similar in nature to robbery. Judge Andrews imposed an
unadjusted 15-year presumptive term. Delagarza did not appeal his
sentence.
In September of 1998, Delagarza filed an application for
post-conviction relief under Criminal Rule 35.1 and requested that
an attorney be appointed to represent him. Delagarza was assigned
counsel.
Delagarza then filed a motion under Criminal Rule 35(a)
[Fn. 5] to vacate his sentence. Delagarza claimed that his sentence
was illegal because the two 1984 Oregon second-degree robbery
convictions could not be classified as prior felony convictions for
purposes of presumptive sentencing. Delagarza also moved to stay
his application for post-conviction relief pending the Rule 35(a)
motion.
Judge Andrews granted the stay and ordered the State to
respond to Delagarza's Rule 35(a) motion. The State argued that
Delagarza's Oregon robbery convictions were prior convictions for
purposes of presumptive sentencing because they were the equivalent
of second-degree robbery in Alaska. The State also argued that
Delagarza's 1983 Oregon first-degree burglary conviction and 1985
Oregon second-degree burglary conviction could be properly construed
as prior felony convictions for the purposes of presumptive
sentencing. Delagarza conceded only that his 1985 Oregon second-
degree burglary conviction was a prior felony conviction for
purposes of presumptive sentencing. Thus, Delagarza maintained that
he was only a second-felony offender for presumptive sentencing and
was subject to a presumptive 10-year sentence. [Fn. 6]
In a July 19, 1999 written order, Judge Andrews examined the
statutes at issue and ruled that neither Delagarza's two 1984
second-degree robbery convictions nor Delagarza's 1983 first-degree
burglary conviction could be considered prior felony convictions for
purposes of AS 12.55.155(c). Judge Andrews then ruled that
Delagarza's 1985 Oregon second-degree burglary conviction made him
a second-felony offender and invited the parties to brief the court
on what steps should be taken regarding resentencing.
The State filed a petition for review of Judge Andrews' order.
We granted the petition. The sole issue for our review is whether
Delagarza's Oregon convictions for first-degree burglary and second-
degree robbery qualify as felonies in Alaska for purposes of
presumptive sentencing under AS 12.55.125(c). This issue presents
a question of law that we review de novo. [Fn. 7]
Discussion
Alaska Statute 12.55.145(a)(1)(B) applies when the State
relies upon a conviction from another jurisdiction to trigger
presumptive sentencing. This statute provides:
(a) For purposes of considering prior
convictions in imposing sentence under
(1) AS 12.55.125(c), . . .
(B) a conviction in this or another
jurisdiction of an offense having elements similar to those of a
felony defined as such under Alaska law at the time the offense was
committed is considered a prior felony conviction[.] [Fn. 8]
In 1996, AS 12.55.145(a)(1)(B) replaced former AS
12.55.145(a)(2), which had provided:
(a) For purposes of considering prior
convictions in imposing sentence under AS 12.55.125(c), . . .
(2) a conviction in this or another
jurisdiction of an offense having elements substantially identical
to those of a felony defined as such under Alaska law is considered
a prior felony conviction. [Fn. 9]
In Harlow v. State, [Fn. 10] we observed that the
legislature's change from requiring that the elements of the out-of-
state offense have elements that were "substantially identical" to
a requirement that the elements be "similar," established a more
inclusive test for determining which out-of-state crimes qualify as
"prior felony convictions" for presumptive sentencing purposes. [Fn.
11]
Does first-degree burglary under Oregon law have elements
similar to a felony under Alaska law?
In Wells v. State, [Fn. 12] we concluded that second-
degree burglary under Oregon law had elements that were
"substantially identical" to second-degree burglary under Alaska
law. [Fn. 13] Accordingly, second-degree burglary under Oregon law
would necessarily satisfy the more inclusive test of "similar"
elements under AS 12.55.145(a)(1)(B). And because Oregon's first-
degree burglary statute requires proof of the elements of Oregon's
second-degree burglary statute, the Oregon crime of first-degree
burglary is necessarily similar to the Alaska felony of second-
degree burglary.
A person commits first-degree burglary under Oregon
Revised Statute (hereinafter ORS) 164.225 if:
the person violates ORS 164.215 [that is,
commits second-degree burglary] and the building is a dwelling, or
if in effecting entry or while in a building or in immediate flight
therefrom the person: (a) Is armed with a burglar's tool as defined
in ORS 164.235 or a deadly weapon; or (b) Causes or attempts to
cause physical injury to any person; or (c) Uses or threatens to use
a dangerous weapon.
In Martin v. State, the defendant pled no contest to
second-degree burglary in violation of AS 11.46.310. [Fn. 14] The
superior court examined Martin's prior Oklahoma conviction for
felony escape and found that the Oklahoma felony had elements
"substantially similar" to AS 11.56.310 (second-degree escape), and
that Martin could therefore be sentenced as a third-felony offender.
[Fn. 15] We held that the superior court did not err and stated:
Although there are differences between the
elements of the Oklahoma and Alaska statutes, those differences
render the Oklahoma statute more restrictive than the Alaska
statute. Accordingly, while it appears that there may be some cases
where a defendant convicted under the Alaska statute would not be
convicted under the Oklahoma law, the converse is not true: any
offender who could be convicted under the Oklahoma law would be
subject to conviction under the elements of the Alaska statute as
well. Under these circumstances, any differences between the
legislative schemes will not preclude a finding of substantial
similarity. [Fn. 16]
Under this analysis, an out-of-state conviction will be
treated as a prior felony for purposes of presumptive sentencing if
the elements of the out-of-state statute are more restrictive than
the Alaska statute. [Fn. 17] Oregon's first-degree burglary statute
meets this test. In order to prove first-degree burglary in Oregon,
the prosecution must prove all the elements of Oregon's second-
degree burglary statute and the additional elements specified in the
first-degree burglary statute. Any offender, like Delagarza, who
is convicted of first-degree burglary in Oregon, would necessarily
be convicted for second-degree burglary. We held in Wells that the
elements of Oregon second-degree burglary were "substantially
identical" to second-degree burglary in Alaska. Therefore, we
conclude that the elements of Oregon's first-degree burglary are
similar to an Alaska felony -- second-degree burglary.
Does second-degree robbery under Oregon law have elements
similar to a felony under Alaska law?
The State asserts that Delagarza's Oregon convictions for
second-degree robbery are prior felony convictions for purposes of
presumptive sentencing. The State argues that Oregon's second-
degree robbery statute requires proof of the elements of Oregon's
third-degree robbery statute, and the elements of Oregon's third-
degree robbery statute are similar to Alaska's second-degree robbery
statute.
Oregon's second-degree robbery statute, ORS 164.405,
provides that a person commits that crime if "the person violates
ORS 164.395 [that is, commits third-degree robbery] and the person
(a) represents by word or conduct that the person is armed with what
purports to be a dangerous or deadly weapon; or (b) is aided by
another person actually present." Oregon's third-degree robbery
statute, ORS 164.395 provides that a person commits that crime if:
in the course of committing or attempting to
commit theft, the person uses or threatens the immediate use of
physical force upon another person with the intent of: (a)
preventing or overcoming resistance to the taking of the property
or to retention of the property thereof immediately after the
taking; or (b) compelling the owner of such property or another
person to deliver the property or to engage in other conduct which
might aid in the commission of the theft.
In Alaska, a person commits the crime of second-degree robbery if:
in the course of taking or attempting to take
property from the immediate presence and control of another, the
person uses or threatens the immediate use of force upon any person
with intent to (1) prevent or overcome resistance to the taking of
the property or the retention of the property after taking; or (2)
compel any person to deliver the property or engage in other conduct
which might aid in the taking of the property.
On their face, each statute requires the prosecution to
prove that a defendant used or threatened to use force on any person
to overcome the resistance of any person to the theft or taking of
property or to compel anyone to deliver the property or enable the
theft or taking of the property.
Delagarza argues that the elements of third-degree robbery
in Oregon are not similar to second-degree robbery in Alaska.
Delagarza notes that the Oregon statute penalizes assaultive conduct
"in the course of committing or attempting to commit theft" while
Alaska's statute penalizes assaultive conduct "in the course of
taking or attempting to take property."
Robbery is traditionally a combination of theft and
assault. [Fn. 18] Oregon's robbery statutes refer to the theft
requirement as "theft," while Alaska's robbery statutes, which were
derived from the Oregon robbery statutes, [Fn. 19] refer to the
theft requirement as "taking of property." Delagarza argues that
the Oregon robbery statute is not similar because Oregon emphasizes
the theft nature of the crime, whereas in Alaska, robbery is a crime
against the person. However, this contention is not supported by
Oregon case law. In State v. Hall, [Fn. 20] the Oregon Court of
Appeals reviewed the legislative history of their robbery statutes,
and concluded that "it appears that the legislature intended that
the assault aspect of the crime of robbery be dominant[.] . . . We
conclude that . . . the distinctive aspect of robbery is the threat
of violence to a person[.]" [Fn. 21]
Delagarza also argues that the Oregon and Alaska statutes
differ because Alaska's robbery statutes require that the property
that is the subject of the robbery must be in the "immediate
presence and control of another" whereas the Oregon statute does not
contain that specific language. Because of this, Delagarza posits
that in Oregon the property that is the subject of the robbery does
not have to be anywhere near a person who is subjected to the
element of force in a robbery. However, in McGrew v. State, this
court interpreted the robbery statute and observed that a person
commits robbery under AS 11.41.510 "whenever a defendant uses force
upon any person with the intent to prevent or overcome anyone's
resistance to the taking, or to compel any person to engage in
conduct that might facilitate the taking." [Fn. 22] This analysis
of the Alaska robbery statute does not require that the property be
in the presence of the person who is subjected to a defendant's
force or threat of force. For instance, an assault on a bank guard
standing outside a building would qualify as a robbery even though
the robber's ultimate goal was a vault located one hundred yards
away in the basement. Thus, we conclude that Delagarza has not
shown that a defendant's conduct that could result in a conviction
of third-degree robbery in Oregon would not also support a
conviction of second-degree robbery in Alaska.
Even if there might be conduct that would be penalized by
the Oregon statute, but not Alaska's, that does not prevent a
conclusion that the elements of the Oregon statute are similar. In
Borja v. State, [Fn. 23] we examined whether the elements of a
California offense were sufficiently similar to an Alaska felony for
purposes of presumptive sentencing. In Borja, we analyzed that
question under AS 12.45.145(a)(2), the predecessor to AS
12.45.145(a)(1)(B), the statute we apply here. [Fn. 24] We observed
as follows:
Moreover, even if it were possible to identify
conduct that was clearly included within the California offense and
clearly excluded from the Alaska offense, this would not necessarily
be fatal to the superior court's ruling. AS 12.55.145(a)(2) does
not require that the out-of-state offense be identical to an Alaska
felony--only that its elements be "similar" to those of an Alaska
felony. Implicit in this statutory wording is the possibility that
there will be some acts covered by one statute that will not be
covered by the other. [Fn. 25]
Therefore, we conclude that Oregon's third-degree robbery statute
has elements similar to Alaska's second-degree robbery statute.
Delagarza was convicted of two counts of second-degree
robbery in Oregon in violation of ORS 164.405. As noted above, that
statute requires proof of the elements of third-degree robbery from
ORS 164.395. Under the analysis from Martin v. State that we
applied above, an out-of-state conviction is a prior felony for
purposes of presumptive sentencing if the elements of the out-of-
state offense are more restrictive than those of a corresponding
Alaska felony. [Fn. 26] Oregon's second-degree robbery statute
satisfies this requirement. In order to prove second-degree robbery
in Oregon, the prosecution must prove all the elements of Oregon's
third-degree robbery statute and the additional and more restrictive
elements specified in Oregon's second-degree robbery statute.
Because Oregon's offense of third-degree robbery is similar to
Alaska's offense of second-degree robbery, we conclude that Oregon's
second-degree robbery statute has elements similar to an Alaska
felony.
Conclusion
The order of the superior court granting Delagarza's
Criminal Rule 35(a) motion is REVERSED.
FOOTNOTES
Footnote 1:
Or. Rev. Stat. sec. 164.405(1).
Footnote 2:
Or. Rev. Stat. sec. 164.225(1).
Footnote 3:
See AS 11.41.500(b).
Footnote 4:
Or. Rev. Stat. sec. 164.215(1).
Footnote 5:
Alaska Rule of Criminal Procedure 35(a) provides: "Correction
of Sentence. The court may correct an illegal sentence at any time."
Footnote 6:
See AS 12.55.125(c)(3).
Footnote 7:
See Scroggins v. State, 951 P.2d 442, 443 (Alaska App. 1998)
(citing Borja v. State, 886 P.2d 1311, 1313-14 (Alaska App. 1994)).
Footnote 8:
Emphasis added.
Footnote 9:
Emphasis added.
Footnote 10:
820 P.2d 307 (Alaska App. 1991).
Footnote 11:
Id. at 309.
Footnote 12:
687 P.2d 346 (Alaska App. 1984).
Footnote 13:
Id. at 351.
Footnote 14:
704 P.2d 1341 (Alaska App. 1985).
Footnote 15:
Id. at 1342.
Footnote 16:
Id. (emphasis added).
Footnote 17:
Id.
Footnote 18:
See A.L.I., Model Penal Code and Commentaries Part 11 sec.
222.1,
at 96-115 (1980).
Footnote 19:
See Alaska Criminal Code Revision, Tentative Draft, Part 2, p.
110.
Footnote 20:
942 P.2d 882 (Or. App. 1997), reversed in part on other
grounds, 966 P.2d 208 (Or. 1998).
Footnote 21:
Id. at 885.
Footnote 22:
872 P.2d 625, 626 (Alaska App. 1994).
Footnote 23:
886 P.2d 1311 (Alaska App. 1994).
Footnote 24:
Id. at 1312.
Footnote 25:
Id. at 1314.
Footnote 26:
See Martin, 704 P.2d at 1342.
