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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.