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Milligrock v. State (07/29/2005) ap-1999
Milligrock v. State (07/29/2005) ap-1999
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
SPIKE MILLIGROCK,
)
) Court of
Appeals No. A-8733
Appellant,
)
Trial Court No. 4FA-03-404 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 1999 July 29, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: J. John Franich, Assistant
Public Advocate, Fairbanks, and Joshua P.
Fink, Public Advocate, Anchorage, for the
Appellant. Terisia K. Chleborad, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, the defendant asserts that his sentence
was unlawfully increased based on three aggravating factors that
were found by his sentencing judge rather than a jury. The
defendant argues that this procedure violated his right to jury
trial as announced in Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004).
But, as we explain here, two of the aggravating factors
were based on the defendants prior convictions, and Blakely
allows a judge to rely on a defendants prior convictions without
submitting the issue to a jury. The third aggravator was not
based on a prior conviction; but proof of this aggravator that
the defendant and his victim shared the same household was
undisputed. We therefore conclude that the sentencing judges
consideration of this aggravator does not constitute plain error.
Underlying facts
Spike Milligrock was convicted of third-
degree assault for an attack on his long-time
girlfriend. Third-degree assault is a class C felony1,
and Milligrock was a third felony offender for purposes
of presumptive sentencing. (He had prior convictions
for second-degree theft and first-degree burglary,
stemming from separate incidents.) Milligrock
therefore faced a presumptive term of 3 years
imprisonment.2
The State proposed four aggravating factors
under AS 12.55.155(c). Milligrock disputed one of
these factors (AS 12.55.155(c)(10)), and the superior
court ultimately ruled in Milligrocks favor on this
aggravator.
However, Milligrocks attorney conceded the
other three proposed aggravators: (c)(7) that one of
Milligrocks prior felony convictions was for a more
serious class of felony than his current offense;
(c)(8) that Milligrock had a history of repeated
assaultive behavior; and (c)(18)(A) that Milligrocks
offense was committed against a person residing in the
same household as Milligrock. Moreover, the factual
basis for the defense attorneys concession of these
three aggravators is apparent from the record.
With regard to aggravator (c)(7), one of
Milligrocks prior felony convictions was for first-
degree burglary. First-degree burglary is a class B
felony3 and, thus, it is a more serious class of
felony than Milligrocks current offense.
With regard to aggravator (c)(8) (history of
repeated assaultive behavior), Milligrock had two prior
convictions for fourth-degree assault, as well as two
other instances of assaultive behavior that did not
lead to assault convictions.
And with regard to aggravator (c)(18)(A), the
record shows that the victim of Milligrocks assault was
his long-time girlfriend a woman who had lived with
Milligrock for five years and who was the mother of his
child.
Based on these three aggravating factors, the
sentencing judge increased Milligrocks sentence by
adding 1 year of suspended imprisonment to the 3-year
presumptive term. That is, Milligrock received a
sentence of 4 years with 1 year suspended.
In this appeal, Milligrock contends that this
sentence is illegal under Blakely to the extent that it
exceeds the 3-year presumptive term.
Our resolution of Milligrocks Blakely claim
In Blakely v. Washington, the Supreme Court
held that the Sixth Amendment to the United States
Constitution guarantees criminal defendants a right of
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. If the
defendant is denied this right, then the sentencing
judge can not exceed the prescribed statutory ceiling.
Id. at 2538.
Alaskas pre-2005 presumptive sentencing laws
are directly affected by the Blakely decision because,
under those laws, if a felony defendant was subject to
a presumptive term of imprisonment, the superior court
had no authority to increase that term of imprisonment
(even by the addition of suspended imprisonment) unless
the State proved one or more of the aggravating factors
listed in AS 12.55.155(c), or unless the State proved
extraordinary circumstances as defined in AS 12.55.165.
In particular, the pre-2005 version of AS 12.55.125(e)
(the statute under which Milligrock was sentenced)
declared that a defendant convicted of a class C 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.
Under Alaskas pre-2005 presumptive sentencing
law, proof of aggravating factors (or proof of
extraordinary circumstances) expanded the range of
sentences available to the superior court (to the
defendants detriment). Blakely holds that, under such
a sentencing scheme, a defendant has the right to a
jury trial on these factors (with the exception of
prior convictions). But under Alaskas pre-2005
presumptive sentencing laws, all rulings on aggravating
and mitigating factors, and all rulings on
extraordinary circumstances (whether favoring the
government or the defendant), were made by the
sentencing judge. Thus, Alaskas pre-2005 presumptive
sentencing laws provided for sentencing procedures that
violated the Sixth Amendment as interpreted in Blakely.
Moreover, Blakely declares that when the
defendants sentencing range hinges on contested
aggravating factors, the government is obliged to prove
these triggering aggravating factors beyond a
reasonable doubt. Blakely, 124 S.Ct. at 2536, 2542.
The Supreme Court recently reiterated this rule 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.
On this point as well, Alaskas pre-2005
presumptive sentencing laws provided for sentencing
procedures that violated the Sixth Amendment as
interpreted in Blakely because, under AS 12.55.155(f)
and AS 12.55.165(a), aggravating factors and
extraordinary circumstances did not have to be proved
beyond a reasonable doubt, but rather only by clear and
convincing evidence.
As we explained above, Milligrock faced a 3-
year presumptive term for third-degree assault. If no
aggravating factors had been proved, this 3-year
presumptive term would have been the ceiling on the
amount of imprisonment that Milligrock could receive.
But based on the States proof of aggravators (c)(7),
(c)(8), and (c)(18)(A), the superior court ultimately
increased Milligrocks sentence to 4 years with 1 year
suspended that is, the court added 1 year of suspended
imprisonment to Milligrocks 3-year presumptive term.
Milligrock was sentenced in November 2003,
approximately seven months before the Supreme Court
decided Blakely. Thus, in accordance with Alaskas
sentencing laws at that time, Milligrocks sentencing
judge (not a jury) decided these three aggravators, and
the judge assumedly applied a clear and convincing
evidence standard of proof rather than requiring the
government to prove the disputed aggravator beyond a
reasonable doubt. In both of these two respects,
Milligrocks sentencing violated the Sixth Amendment as
construed in Blakely.
Even though Milligrock did not object to
these procedures at the time, he is nevertheless
entitled to raise his Blakely claim in this appeal,
because his appeal was pending at the time that Blakely
was decided. Under federal law, a new rule for the
conduct of criminal prosecutions [applies]
retroactively to all cases, state or federal, pending
on direct review or not yet final. Griffith v.
Kentucky, 479 U.S. 314, 328; 107 S.Ct. 708, 716; 93
L.Ed.2d 649 (1987). However, because Milligrock did
not object to these sentencing procedures at the time,
he must now show plain error. Johnson v. United
States, 520 U.S. 461, 466-67; 117 S.Ct. 1544, 1548-49;
137 L.Ed.2d 718 (1997); Haag v. State, __ P.3d __,
Alaska App. Opinion No. 1996 (July 22, 2005), slip
opinion at 15-16.
With regard to aggravating factors (c)(7) and
(c)(8), we find no plain error indeed, no error at all
because these two aggravators are based on Milligrocks
prior criminal convictions.
Blakely expressly exempts a defendants prior
convictions from the requirement of jury trial. That
is, when a defendants prior conviction is the fact that
authorizes a sentencing judge to exceed an otherwise
applicable sentencing limit, the sentencing judge can
rely on that prior conviction despite the normal
Blakely requirement of a jury trial. We recently
explained the rationale for this exception in Edmonds
v. State: in the case of a prior conviction, the
defendants rights to jury trial and to proof beyond a
reasonable doubt have already been honored.4
Accordingly, under Blakely, Milligrocks
sentencing judge was authorized to decide aggravators
(c)(7) and (c)(8) without the need for a jury if the
judges decisions were based on Milligrocks prior
convictions.
Aggravator (c)(7) that one of the defendants
prior felonies is of a more serious class than the
defendants current offense is expressly based on a
defendants prior convictions. Assuming that there is
no dispute as to the existence of those prior felony
convictions, this aggravator presents no problem under
Blakely.
Aggravator (c)(8) a history of aggravated or
repeated instances of assaultive behavior does
potentially present a Blakely problem, because we have
construed aggravator (c)(8) to encompass not only prior
convictions for assault, but also other verified
instances of assaultive behavior.5 We note that the
pre-sentence report in Milligrocks case contains
descriptions of assaultive behavior on a couple of
occasions that did not result in assault convictions.
If the finding of aggravator (c)(8) in Milligrocks case
hinged on assaultive behavior that did not lead to
assault convictions, then this would raise a
substantial issue under Blakely.
But, as we explained above, Milligrock had
two prior convictions for fourth-degree assault. These
two prior convictions were, by themselves, sufficient
to establish aggravator (c)(8) because, in Andrews v.
State, we construed the word repeated in AS
12.55.155(c)(8) to mean more than once or on more than
one occasion.6 (See, for instance, Murray v. State,
770 P.2d 1131, 1139-1140 (Alaska App. 1989), where we
upheld the sentencing judges finding of aggravator
(c)(8) based on two prior convictions for assault.) We
therefore conclude that, under the facts of Milligrocks
case, the sentencing judge could properly find
aggravator (c)(8) without referring this issue to a
jury.
This leaves aggravator (c)(18)(A) the fact
that Milligrocks assault was committed upon the woman
who shared his household. With respect to this
aggravator, we conclude that any Blakely error was
harmless.
The United States Supreme Court has ruled
that constitutional errors involving a defendants Sixth
Amendment right to jury trial are not automatic grounds
for reversal of a criminal conviction. Rather, courts
must apply a harmless error analysis when assessing the
effect of Sixth Amendment errors.
For instance, the case of Johnson v. United
States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718
(1997), involved a defendant who was convicted of
perjury under the federal statute. At the defendants
trial, the judge removed the materiality element of
perjury from the jurys consideration and decided this
element himself. The Supreme Court held that even
though the judges action clearly violated the
defendants right to a jury trial under the Sixth
Amendment, the defendant was still obliged to prove
plain error i.e., to prove that the judges error
substantially prejudiced her.7 The Supreme Court then
held that, because the materiality of the defendants
particular false statement was undisputed, the
defendant had failed to show prejudice, and thus the
Court ruled that her perjury conviction should stand.8
In United States v. Cotton, 535 U.S. 625, 122
S.Ct. 1781, 152 L.Ed.2d 860 (2002), the Supreme Court
applied a similar analysis to an Apprendi error. The
defendants in Cotton were indicted for, and ultimately
convicted of, conspiring to distribute (and to possess
with intent to distribute) a detectable amount of
cocaine. Federal law prescribed a penalty of up to 20
years imprisonment for possession of a detectable
amount of cocaine with intent to distribute. However,
at sentencing, the federal judge found (based on
testimony presented at the trial) that the defendants
had actually possessed more than two kilograms of
cocaine base. On the basis of this finding, the judge
sentenced the defendants to 30 years imprisonment under
a separate statute that provided much higher penalties
(up to life in prison) for drug offenses involving more
than 50 grams of cocaine base.9
The defendants did not object to the fact
that the judge increased their sentences based on a
fact that was not found by the jury. However, while
the defendants case was on appeal, the Supreme Court
decided Apprendi v. New Jersey.10 In Apprendi, the
Court held that any fact that increases the penalty for
the crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.11
Based on Apprendi, the government in the
Cotton appeal conceded that the sentencing judge had
violated the defendants Sixth Amendment right to jury
trial. However, the Supreme Court applied the same
harmless-error analysis that it had applied in Johnson
v. United States and, using that analysis, concluded
that the Apprendi error did not require reversal of the
defendants sentences.
The Court noted that [t]he evidence that the
[defendants] conspiracy involved at least 50 grams of
cocaine base was overwhelming and essentially
uncontroverted.12 Thus, the Court reasoned, any fact
finder who concluded that the conspiracy existed
[s]urely ... would have also found that the conspiracy
involved at least 50 grams of cocaine base.13 The
Court therefore concluded that there it was not plain
error for the judge to impose the enhanced sentence.
Rather, the Court declared, it would be a threat to the
fairness, integrity, and public reputation of judicial
proceedings if, because of a procedural error that the
defendants did not object to, the defendants were to be
granted a reduction of their sentences to the levels
prescribed for much less serious drug offenses.14
In Milligrocks case, the evidence was
undisputed that Milligrocks assault was committed upon
a woman who had lived with him for five years and who
had borne his child. It is true that, under Blakely,
Milligrock had a right to have this same household
issue decided by a jury, and a right to demand that the
State prove this issue beyond a reasonable doubt. But
given the undisputed evidence concerning Milligrocks
relationship with the victim, there is no reasonable
possibility that a jury would have found in Milligrocks
favor on this issue. Thus, the procedural error with
respect to aggravator (c)(18)(A) does not amount to
plain error.
Conclusion
We conclude that, with respect to aggravators
(c)(7) and (c)(8), there was no Blakely error. And,
with respect to aggravator (c)(18)(A), we conclude that
the Blakely error does not rise to the level of plain
error.
Accordingly, the judgement of the superior
court is AFFIRMED.
_______________________________
1AS 11.41.220(d).
2AS 12.55.125(e)(2).
3AS 11.46.300(b).
4See Edmonds, __ P.3d __, Alaska App. Opinion No. 1998 (July
29, 2005), slip opinion at page 6.
5See, e.g., Russell v. State, 934 P.2d 1335, 1347 (Alaska
App. 1997); Fagan v. State, 779 P.2d 1258, 1260 (Alaska App.
1989); Kankanton v. State, 765 P.2d 101, 102-03 (Alaska App.
1988).
6967 P.2d 1016, 1019 (Alaska App. 1998).
7Johnson, 520 U.S. at 466-67, 117 S.Ct. at 1548-49.
8Id., 520 U.S. at 468-470, 117 S.Ct. at 1549-1550.
9Cotton, 535 U.S. at 628, 122 S.Ct. at 1783-84.
10530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
11Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.
12Cotton, 535 U.S. at 633, 122 S.Ct. at 1786 (quoting
Johnson, 520 U.S. at 470, 117 S.Ct. at 1544).
13Cotton, 535 U.S. at 633, 122 S.Ct. at 1786.
14Id., 535 U.S. at 634, 122 S.Ct. at 1787.
