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Edmonds v. State (07/29/2005) ap-1998
Edmonds v. State (07/29/2005) ap-1998
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
GILBERT T. EDMONDS,
)
) Court of
Appeals No. A-8998
Appellant,
)
Trial Court No. 3AN-00-6513 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 1998 July 29, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Gilbert T. Edmonds, in propria
persona, Florence, Arizona, for the
Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to decide whether, in
instances where a defendant is being sentenced for two or more
crimes, the United States Supreme Courts decision in Blakely v.
Washington affects a sentencing judges authority under pre-2004
Alaska law that is, under former AS 12.55.025(e) and (g) to
impose consecutive sentences exceeding the prescribed presumptive
term for the defendants most serious offense. Under those former
sentencing statutes, a sentencing judges authority to impose
consecutive sentences did not rest on proof of aggravating
factors or other special factual circumstances. We therefore
conclude (with one caveat, which we describe at the end of this
opinion) that Blakely does not alter or affect the pre-2004 law
governing a judges decision to impose consecutive versus
concurrent sentences.
Underlying facts
In 2000, in two separate incidents, Gilbert
T. Edmonds sexually assaulted an eleven-year-old girl
and a thirty-seven-year-old mentally impaired woman.
Edmonds ultimately pleaded no contest to four counts of
first-degree sexual assault and one count of attempted
first-degree sexual assault.
Edmonds was a third felony offender, so he
faced a presumptive term of 25 years imprisonment on
each of the four counts of sexual assault, and a
presumptive term of 15 years imprisonment on the
attempted sexual assault.1
Under Alaska sentencing law at that time
(i.e., under the pre-2005 version of our presumptive
sentencing laws), the sentencing judge had no authority
to exceed these presumptive terms unless the State
proved one or more of the aggravating factors listed in
AS 12.55.155(c).2
The State alleged three aggravating factors.
Edmonds conceded one of these factors the fact that
Edmonds had committed his offenses while on bail
release from another felony charge or a misdemeanor
charge involving assault. See AS 12.55.155(c)(12).
And, at the sentencing hearing, the superior court
found that the other two proposed aggravating factors
had been proved.
Under Alaskas pre-2005 sentencing law, these
aggravating factors authorized the court to increase
Edmondss sentences above the prescribed presumptive
terms, up to the maximum sentences for his crimes. See
AS 12.55.155(a). (At that time, the maximum sentence
for first-degree sexual assault was 30 years
imprisonment, and the maximum sentence for attempted
first-degree sexual assault was 20 years imprisonment.3
)
Nonetheless, the court decided not to
increase Edmondss sentences on account of these
aggravators. The superior court sentenced Edmonds to
the presumptive term of 25 years imprisonment on all
four counts of first-degree sexual assault. The court
declared that two of these 25-year terms would be
completely concurrent, and that 4 years of the other
two sentences would be consecutive. Thus, Edmonds
received a total of 33 years to serve for the four
counts of first-degree sexual assault.
On Edmondss remaining count, attempted first-
degree sexual assault, the court imposed the 15-year
presumptive term. The court made this term mostly
concurrent with the four counts of sexual assault, but
ordered that 4 years of this term would be consecutive
to Edmondss other sentences.
Thus, Edmondss composite sentence for his
five crimes was 37 years to serve.
These sentences were imposed on June 25,
2001, and the courts judgement was distributed on June
28th. Edmonds did not appeal the superior courts
judgement.
More than three years later, in October 2004,
Edmonds filed a motion to modify his composite
sentence. He claimed that his composite sentence was
imposed in violation of his right to jury trial 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), and Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In
particular, Edmonds contended that his sentencing judge
could not lawfully have imposed more than 15 years to
serve.
It is unclear how Edmonds arrived at this 15-
year ceiling. We assume that he was arguing that 15
years was the ceiling because this was the presumptive
term for his least serious offense (the one count of
attempted first-degree sexual assault), and because
Blakely and Apprendi somehow restricted his sentence to
the lowest penalty he faced for any of his five
offenses.
Superior Court Judge Philip R. Volland did
not attempt to clarify these details of Edmondss
argument. Rather, he concluded that Edmonds could not
claim the benefit of Blakely because Edmondss judgement
was final before Blakely was decided. (Blakely was
decided on June 24, 2004.) Judge Volland therefore
denied Edmondss motion.
The present appeal
Edmonds now appeals the superior courts
decision. However, most of his brief is devoted to
rebutting the superior courts assertion that Blakely
does not apply to defendants whose convictions were
final before Blakely was issued. This issue of
retroactivity is moot unless Edmonds demonstrates that
the sentencing procedures in his case did indeed
violate Blakely.
In Blakely and Apprendi, the Supreme Court
interpreted the right to jury trial guaranteed by the
Sixth Amendment to the United States Constitution.
Both decisions rest on a principle that was recently
reiterated in United States v. Booker, __ U.S. __, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005): Any fact (other
than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt. Booker, 125 S.Ct. at 756.
Edmondss argument that Blakely prohibited the superior
court from imposing individual sentences of 25 years
imprisonment on Edmondss four counts of first-degree
sexual assault
In his brief to this Court, Edmonds argues
that, unless the State proved unspecified factual
issues to a jury, Blakely imposed a 15-year ceiling on
Edmondss composite sentence for the four counts of
first-degree sexual assault and the one count of
attempted first-degree sexual assault. But Edmonds
offers little explanation of how he reached this
conclusion.
Edmonds appears to be arguing that 15 years
was the sentencing ceiling because his least serious
offense (the one count of attempted first-degree sexual
assault) carried a 15-year presumptive term for third
felony offenders like himself. In other words, Edmonds
appears to be contending that, when a defendant faces
sentencing for two or more offenses, Blakely and
Apprendi restrict the defendants sentence to the lowest
penalty that could be imposed for any of those
offenses, unless the State proves aggravating facts to
a jury. This argument is mistaken.
Blakely holds that the Sixth Amendment to the
United States Constitution guarantees criminal
defendants a right to jury trial on all factual issues
that are necessary to establish a 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 a right to demand a jury trial on those
aggravating factors (with the exception of prior
criminal convictions). Blakely, 124 S.Ct. at 2537-38.
But when a defendant (like Edmonds) is
convicted of some crimes that carry a greater sentence
and other crimes that carry a lesser sentence, the
factual circumstance that triggers the sentencing
judges authority to impose the greater sentence is the
fact that the defendant was convicted of the crime(s)
that carry that greater sentence.
For the defendant to be convicted of the
crime that carried the greater sentence, one of three
things had to happen: either (1) the defendant
exercised their right to trial by jury, and the jury
found the defendant guilty; or (2) the defendant was
offered a jury trial but waived it, choosing instead to
be tried by a judge, and the judge found the defendant
guilty; or (3) the defendant was offered a jury trial
but waived trial altogether, choosing instead to enter
a plea of guilty or no contest. Regardless of how the
defendant was found guilty, the defendants right to
jury trial and the defendants right to proof beyond a
reasonable doubt were both honored and thus Blakely is
satisfied.
Accord United States v. Ordu¤o-Mireles, 405
F.3d 960, 961-62 (11th Cir. 2005); United States v.
Johns, 336 F.Supp.2d 411, 422 (M.D. Pa. 2004); State v.
Chiappetta, 107 P.3d 366, 374 (Ariz. App. 2005); L¢pez
v. People, 113 P.3d 713, 730-31 (Colo. 2005); State v.
Lowery, 826 N.E.2d 340, 352 (Ohio App. 2005); State v.
P‚rez, 102 P.3d 705, 708-710 (Or. App. 2004); State v.
Hughes, 110 P.3d 192, 201 (Wash. 2005).
For these reasons, the superior court could
properly subject Edmonds to the prescribed 25-year
presumptive term for each of his four counts of first-
degree sexual assault. And, as we explained above,
even though the superior court found three aggravating
factors, the court did not exercise the enhanced
sentencing authority that these aggravating factors
conferred. Rather, the court sentenced Edmonds to the
unadjusted presumptive term of 25 years imprisonment on
each count.
(Similarly, the court sentenced Edmonds to
the unadjusted presumptive term of 15 years
imprisonment on the one count of attempted first-degree
sexual assault.)
To summarize: None of Edmondss individual
sentences exceeded the applicable presumptive term for
a third felony offender convicted of that crime. Thus,
none of Edmondss individual sentences was imposed in
violation of the right to jury trial recognized in
Blakely.
Edmondss argument that Blakely prohibited the superior
court from imposing consecutive (or partially
consecutive) sentences totaling more than 25 years
As explained above, the superior court
imposed partially consecutive sentences on Edmondss
four counts of first-degree sexual assault. In
addition, the superior court imposed a partially
consecutive sentence for Edmondss fifth crime,
attempted first-degree sexual assault. All told,
Edmonds received a composite sentence of 37 years to
serve.
Edmonds contends that Blakely prohibits a
sentencing judge from imposing consecutive (or
partially consecutive) sentences. However, Edmondss
argument consists of two conclusory sentences in which
he simply asserts that, under Blakely and Apprendi, his
composite sentence could not exceed the presumptive
term for any of his individual crimes.
Blakely and Apprendi declare that, with the
exception of prior convictions, when a judges
sentencing authority hinges on proof of facts beyond
those established by the guilty verdict or the
defendants plea, those additional facts must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt. (Conceivably, a third option exists:
the defendant might waive the right to jury trial and
consent to have the additional facts litigated to the
judge.)
But the superior courts authority to impose
consecutive sentences on Edmonds did not hinge on proof
of any additional facts. At the time of Edmondss
sentencing (i.e., in June 2001), a sentencing judges
authority to impose consecutive sentences was governed
by former AS 12.55.025(e) and (g).4 These two sections
required consecutive sentences in certain
circumstances, and in all other instances they gave a
sentencing judge discretion as to whether a defendants
sentences should be imposed consecutively or
concurrently. In fact, both this Court and the Alaska
Supreme Court construed former AS 12.55.025(e) and (g)
as creating a preference for consecutive sentences,
which a sentencing judge had the discretion to reject.5
We note that the California Supreme Court
recently held that Blakely does not affect a sentencing
judges discretionary decision whether to impose a
defendants sentences consecutively or concurrently.
People v. Black, 113 P.3d 534, __; 29 Cal.Rptr.3d 740,
757-58 (Cal. 2005).
Thus, it would appear that Blakely did not
alter or restrict the sentencing judges authority to
make Edmondss sentences partially consecutive.
We say it would appear because one might
conceivably argue that Blakely applies to pre-2004
consecutive sentencing in Alaska because of the Neal-
Mutschler rule. The Neal-Mutschler rule is a common-
law rule (that is, a sentencing rule announced by the
Alaska Supreme Court) which states that a sentencing
judge should not impose consecutive sentences that
total more than the maximum sentence for the defendants
most serious offense unless the sentencing judge
expressly finds that such a sentence is necessary to
protect the public.6
Edmonds does not discuss the Neal-Mutschler
rule in his brief, much less the possibility that
Blakely might affect the operation of the Neal-
Mutschler rule. Moreover, we note that appellate
courts in other jurisdictions have suggested that
Blakely does not apply to sentencing decisions such as
how lengthy a sentence is needed to adequately protect
the public because such decisions do not hinge on
proof of particular specified facts, but rather involve
a traditional exercise of sentencing discretion.
See People v. Rivera, __ N.E.2d __, 2005 WL
1362184 (N.Y. June 9, 2005), footnote 8 (no page
references available); Brown v. Greiner, 409 F.3d 523,
533 (2nd Cir. 2005); State v. Satterwhite, __ N.E.2d
__, 2005 WL 1356445 at *6 (Ohio App. (10th Dist.) June
9, 2005); State v. Lett, __ N.E.2d __, 2005 WL 1274217
at *4-5 (Ohio App. (8th Dist.) May 31, 2005) (en banc);
State v. Rivera, 102 P.3d 1044, 1055-56, 1059-1062
(Haw. 2004).
Because this issue has not been briefed, and
because it is not clear whether Blakely applies at all
to the Neal-Mutschler rule, we do not resolve the
question of whether, or how, Blakely affects
consecutive sentencing in cases governed by the Neal-
Mutschler rule that is, cases in which the sentencing
judge wishes to impose consecutive sentences that total
more than the maximum sentence for the defendants most
serious offense.
Conclusion
We do not reach the issue of whether Blakely
applies retroactively to convictions that were final
before Blakely was decided. Instead, we conclude that
even if Blakely did apply to Edmondss sentencing, the
procedures employed at Edmondss sentencing did not
violate Blakely.
On this basis, the judgement of the superior
court is AFFIRMED.
_______________________________
1First-degree sexual assault is an unclassified felony, AS
11.41.410(b), and an attempt to commit first-degree sexual
assault is a class A felony, AS 11.31.100(d)(2). The sentencing
laws in effect at the time of Edmondss offenses prescribed a
presumptive term of 25 years imprisonment for a third felony
offender convicted of first-degree sexual assault,
AS 12.55.125(i)(4) (2000), and a presumptive term of 15 years
imprisonment for a third felony offender convicted of a class A
felony, AS 12.55.125(c)(4) (2000).
2The pre-2005 versions of AS 12.55.125(c), (d), (e), and (i)
all declared: a defendant convicted of [the specified
felony] shall be sentenced to the following presumptive
terms, subject to adjustment as provided in AS 12.55.155
12.55.175 (emphasis added) that is, subject to adjustment
for the aggravating and mitigating factors listed in
AS 12.55.155(c)-(d), or for extraordinary circumstances as
defined in AS 12.55.165.
3AS 12.55.125(i) (2000) and AS 12.55.125(c) (2000),
respectively.
4These two sections were repealed in 2004 and replaced with
a new statute, AS 12.55.127. See SLA 2004, ch. 125, 7
(effective July 1, 2004).
5See State v. Hodari, 996 P.2d 1230, 1233 (Alaska 2000);
State v. Andrews, 707 P.2d 900, 909 (Alaska App. 1985),
affirmed 723 P.2d 85 (Alaska 1986); Contreras v. State, 767
P.2d 1169, 1174 (Alaska App. 1989); Jones v. State, 744 P.2d
410, 411 (Alaska App. 1987).
6 See Neal v. State, 628 P.2d 19, 21 (Alaska 1981): Our
past decisions imply that where consecutive sentences for
two or more counts exceed the maximum sentence for any
single count, the sentencing judge should make a formal
finding that confinement for the combined term is necessary
to protect the public. (Citing Mills v. State, 592 P.2d
1247, 1248 (Alaska 1979), and Mutschler v. State, 560 P.2d
377, 381 (Alaska 1977)); Powell v. State, 88 P.3d 532, 537
(Alaska App. 2004).
