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Peltola v. State (07/22/2005) ap-1994
Peltola v. State (07/22/2005) ap-1994
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.
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD J. PELTOLA,
)
) Court of
Appeals No. A-8925
Appellant,
)
Trial Court No. 4BE-04-217 CR
)
v.
) O P
I N I O N
)
STATE OF ALASKA,
)
)
Appellee.
)
[No. 1994 - July 22, 2005]
)
Appeal from the
Superior Court, Fourth Judicial District,
Bethel, Richard D. Savell, Judge.
Appearances: Myron Angstman, Angstman Law
Office, Bethel, for Appellant. W. H. Hawley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Scott J. Nordstrand, Acting Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
We are again confronted with the issue of the effect
the United States Supreme Courts recent decision in Blakely v.
Washington1 has on the sentencing of first-felony offenders
convicted of class B and C felonies. These offenders are not
subject to a presumptive term under Alaskas presumptive
sentencing laws.
Peltola entered into a plea agreement where he pled no
contest to a consolidated bootlegging charge which encompassed
several charges that he illegally sold alcohol without a license
in an area where this was prohibited.2 Bootlegging is a class C
felony. Peltola was a first-felony offender. He therefore was
not subject to a presumptive term of imprisonment.3
Alaska Statute 12.55.125(k)(2) provides that when a
first-felony offender is not subject to a presumptive term of
imprisonment that offender may not be sentenced to a term of
unsuspended imprisonment that exceeds the presumptive term for a
second-felony offender convicted of the same crime unless the
sentencing court finds one or more aggravating factors specified
in AS 12.55.155(c) or extraordinary circumstances as defined in
AS 12.55.165. The presumptive term for a second-felony offender
convicted of a class C felony is 2 years of unsuspended
imprisonment.4 Therefore AS 12.55.125(k)(2) only limits the
sentence which Judge Savell could impose in one respect he could
not sentence Peltola to more than 2 years of unsuspended
imprisonment unless he found statutory aggravating factors or
extraordinary circumstances. The statute places no limit on
Judge Savells authority to impose suspended incarceration.
Judge Savell imposed a sentence of 34 months with 18
months suspended. Judge Savell placed Peltola on probation for 3
years following his release from confinement. Since this
sentence was less than 2 years of unsuspended time to serve,
Judge Savell did not need to find statutory aggravating factors
or extraordinary circumstances to impose this sentence under AS
12.55.125(k)(2).
Peltolas appeal raises several issues. He argues that,
under Blakely v. Washington, Judge Savell could not sentence him
to more than 2 years of imprisonment, including the suspended
term of imprisonment, unless a jury found aggravating factors or
extraordinary circumstances. He points out that Judge Savell
considered general sentencing criteria such as Peltolas age and
prospects for rehabilitation in imposing the sentence. He
argues that these were impermissible aggravating factors which
Judge Savell could not consider under Blakely because a jury had
not found these aggravating factors beyond a reasonable doubt.
Peltolas case is governed by State v. Gibbs.5 In
Gibbs, we explained the Apprendi and Blakely decisions as
follows:
In Apprendi v. New Jersey,[6] the United
States Supreme Court held that, with the
exception of a defendants prior convictions,
any [disputed] fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury, and proved beyond a reasonable
doubt.[7] In Blakely, the Supreme Court
clarified that, for purposes of Apprendi, the
statutory maximum is the maximum term of
imprisonment that a judge may lawfully impose
solely on the basis of the facts reflected in
a jury verdict or admitted by the
defendant.[8]
In Gibbs, we pointed out that AS 12.55.125(k)(2) only
placed a maximum limit on the unsuspended jail time that may be
imposed on a first felony offender convicted of a class B or
class C felony, absent proof of one or more of the aggavating
factors listed in AS 12.55.155(c) or proof of extraordinary
circumstances under AS 12.55.165.9 Under our analysis in Gibbs,
Judge Savell had the authority to impose up to 2 years of actual
imprisonment without finding aggravating factors or extraordinary
circumstances. Because Peltolas sentence was less than 2 years
of unsuspended time, Judge Savell did not need to find any
statutory aggravating factors or extraordinary circumstances to
impose this sentence. Blakely only applies to factual findings
that must be found to increase a defendants sentence beyond a
statutory maximum. The restrictions which Blakely places on
sentencing courts do not apply in Peltolas case.
Peltola objects to the factors which Judge Savell
considered in imposing sentence. Peltola did not raise this in
the trial court. He therefore could only prevail if he
established plain error. But even if Peltola did not have this
burden, his claim has no merit. As we have previously explained,
Apprendi and Blakely will not apply if the trial court must make
a factual finding in order to increase the statutory penalty
which the defendant faces. In Peltolas case, Blakely would apply
if Judge Savell had imposed unsuspended jail time exceeding 2
years of imprisonment. But Judge Savell did not impose such a
sentence.
There is nothing in Blakely that prevents a trial court
from making factual findings to sentence a defendant within a
sentencing range that was authorized by the jurys verdict.
Alaska Statute 12.55.005 incorporates the sentencing criteria set
out in State v. Chaney.10 These criteria, such as defendants
prior criminal histories, their likelihood of rehabilitation,
and the seriousness of their present offenses are all factors
which a court may properly consider in imposing a sentence within
an authorized range. As we have pointed out, Judge
Savell did not need to find a statutory aggravating factor to
impose Peltolas sentence because he did not impose a term of
unsuspended imprisonment in excess of 2 years. But in this case,
the State proposed an aggravating factor. And Peltola conceded
the aggravating factor at sentencing. In Blakely, the Supreme
Court stated that the maximum term of imprisonment is the maximum
term that a judge could lawfully impose solely on the basis of
the facts reflected in a jury verdict or admitted by the
defendant.11 Because Peltola conceded the aggravating factor,
Judge Savell could have found the aggravating factor and legally
imposed a sentence of unsuspended time to serve of up to 5 years,
the maximum sentence for a class C felony offender, without
violating AS 12.55.125(k)(2) or Blakely.
Conclusion
We therefore conclude that the sentence which Judge
Savell imposed was legal. Peltola also argues that his sentence
was excessive. But, because the sentence did not exceed 2 years
of imprisonment and also because it was imposed in accordance
with a plea agreement that provided for imposition of a sentence
equal to or less than a specified maximum sentence, we have no
jurisdiction to review this sentence on the ground that it is
excessive.12 We therefore refer this case to the Alaska Supreme
Court for discretionary review of this issue.13
MANNHEIMER, Judge, concurring.
Ronald Peltola was indicted on five counts of felony
bootlegging (selling alcoholic beverages without a license in a
community that has exercised its statutory option to restrict the
possession or sale of alcoholic beverages).1
This offense is a class C felony. Peltola was a first
felony offender, so he was not subject to presumptive sentencing.
Rather, his sentencing would have been governed by AS
12.55.125(k)(2). This statute would have prohibited the superior
court from sentencing Peltola to more than 2 years to serve
unless the court found one or more of the aggravating factors
listed in AS 12.55.155(c), or extraordinary circumstances as
defined in AS 12.55.165.
However, Peltola ultimately reached a plea and
sentencing agreement with the State. Under the terms of this
agreement, Peltola pleaded no contest to a single count of felony
bootlegging, although he further agreed to concede all five
illegal sales for sentencing purposes. In addition, Peltolas
plea agreement specified that he would receive no more than 18
months to serve thus rendering moot the 24-month statutory
ceiling that would have governed his sentencing under AS
12.55.125(k)(2).
Even though Peltolas agreed-upon sentence was not going
to exceed this statutory ceiling, the State nevertheless filed a
pre-sentencing notice in which it announced its intention to rely
upon one aggravating factor: AS 12.55.155(c)(21) (history of
repeated instances of similar criminal conduct), based on the
fact that Peltola had a prior conviction for bootlegging, as well
as the five instances of bootlegging involved in the current
case. Peltolas sentencing hearing took place on
September 21, 2004 some three months after the United States
Supreme Court announced its decision in Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Peltolas
attorney was aware of the Blakely decision because the State
cited Blakely in its pre-sentencing notice of aggravating
factors. (The State asserted that its proposed aggravating
factor was consistent with Blakely because the factor was based
on a prior criminal conviction.)
Even though Peltolas attorney had been alerted to
Blakely, he never raised a Blakely issue at the sentencing
hearing. Instead, Peltolas attorney expressly conceded the
States proposed aggravator (c)(21), and he further conceded
aggravator (c)(10) (conduct among the most serious within the
definition of the offense):
Defense Attorney: Mr. Peltola does not
dispute [the States proposed] aggravator in
this case, but [he] notes that [his prior
bootlegging conviction occurred almost] 20
years ago. [It was] 16 or 18 years ago, and
most courts ... consider older offenses less
important than more recent offenses. ...
The Court: Doesnt the consolidation of
these [five] counts into one give rise to
[the] aggravator of most serious [conduct]?
Defense Attorney: Oh, I suppose.
Despite these two conceded
aggravating factors, the superior court
adhered to the terms of the plea bargain and
gave Peltola a sentence of 16 months to serve
(34 months with 18 suspended).
Now, on appeal, Peltola contends
for the first time that the sentencing judge
violated Blakely when the judge, in his
sentencing remarks, adverted to other facts
in Peltolas history (his age, his recurring
problems with alcohol, and his other problems
with the law) that had not been proved to a
jury. Because Peltola raised no objection to
these matters at the sentencing hearing, he
must prove plain error.
There is no plain error in Peltolas
case. His argument in this appeal
misapprehends the Blakely decision.
As we recently explained in State
v. Gibbs, 105 P.3d 145 (Alaska App. 2005),
the primary holding in Blakely is that a
defendant has a right to a jury trial on all
factual issues that are necessary to
establish the sentencing judges authority to
impose the type of sentence that the
defendant received. Thus, when a sentencing
judge has no authority to exceed a specified
sentencing ceiling unless particular
aggravating factors are proved, the defendant
has the right to demand a jury trial on those
aggravating factors. If the defendant is
denied this right, the sentencing judge can
not exceed the prescribed statutory ceiling.2
But, as Judge Coats points out in
his lead opinion, Blakely does not regulate
or restrict a sentencing judges traditional
consideration of the many factors that
potentially affect the selection of a case-
appropriate sentence within the applicable
statutory bounds. Rather, Blakely addresses
a defendants right to a jury trial on the
factual issues that establish those
applicable sentencing bounds.
Under Blakely, there are two
questions to be asked. First, what is the
maximum sentence prescribed by the
legislature for the defendants offense, given
the defendants prior convictions and given
the particular facts that (a) were found by
the defendants jury or (b) were admitted by
the defendant in lieu of demanding a jury
trial? And second, does the defendants
sentence exceed this statutory maximum?
Once this point is understood,
Peltolas Blakely claim evaporates.
Peltolas plea agreement insured
that his case would raise no immediate
Blakely issue. Under that plea agreement,
Peltola could not receive more than 18 months
to serve six months less than the 24 months
to serve that would otherwise have been
authorized by the governing sentencing
statute, AS 12.55.125(k)(2), in the absence
of any aggravating factors.
Peltola did receive an additional
year and a half of suspended time. If, in
the future, Peltolas probation is revoked and
some or all of that suspended time is
imposed, his total sentence could exceed the
normal ceiling of 24 months to serve, and
this might raise a Blakely issue.3
I note, however, that Peltola
expressly conceded two aggravating factors
(c)(10) and (c)(21) at his sentencing
hearing. Under AS 12.55.125(k)(2), either
one of these aggravating factors is legally
sufficient to empower the superior court to
exceed the normal sentencing ceiling of 24
months to serve. Moreover, these factors
were based on (a) Peltolas prior conviction
for bootlegging and (b) the five instances of
bootlegging that Peltola, in his plea
agreement with the State, expressly conceded
for purposes of sentencing in this case.
_______________________________
1 542 U.S. _____, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
2 AS 04.11.010(a).
3 AS 12.55.125(e).
4 AS 12.55.125(e)(1).
5 105 P.2d 145 (Alaska App. 2005).
6 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
7 Id. at 490, 120 S.Ct. at 2362-63.
8 Gibbs, 105 P.2d at 147 (quoting Blakely, 542 U.S. at
_____, 124 S.Ct. At 2537 (citations omitted) (emphasis in
original)).
9 Id. at 147.
10 477 P.2d 441 (Alaska 1970).
11 542 U.S. at _____, 124 S.Ct. at 2537 (citations
omitted) (emphasis in original).
12 Appellate Rule 215(a)(1).
13 Appellate Rule 215(k).
1 AS 04.11.010 and AS 04.16.200(b).
2 Gibbs, 105 P.3d at 147-48.
3 See Gibbs, 105 P.3d at 148.
