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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.

             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


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.