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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).