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Grohs v. State (08/12/2005) ap-2001
Grohs v. State (08/12/2005) ap-2001
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
GARY L. GROHS,
)
) Court of
Appeals No. A-8753
Appellant,
)
Trial Court No. 4FA-02-4248 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2001 August 12, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. Timothy W. Terrell, 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.
Gary L. Grohs was stopped for not having an illuminated
rear license plate.1 Based on the state troopers observations
during this traffic stop, Grohs was arrested for driving under
the influence. Grohs then refused to submit to a breath test.
Based on this episode, and based on Grohss prior convictions for
driving while intoxicated, Grohs was indicted for felony driving
under the influence and felony breath test refusal.2
Following his indictment, Grohs asked the superior
court to dismiss the charges. Grohs contended that the traffic
stop had been pretextual, and that all of the governments
evidence should therefore be suppressed. When the superior court
denied the motion to dismiss, Grohs entered a Cooksey plea to the
felony breath test refusal charge, preserving his right to
litigate the claim of pretext stop on appeal.3 The State, for
its part, dismissed the felony DUI charge (as well as a related
misdemeanor charge of driving with a suspended license).
Felony breath test refusal is a class C felony,4 and
Grohs was a second felony offender. (He had a prior conviction
for felony driving under the influence.) Under Alaskas
sentencing law at that time, Grohs faced a presumptive term of 2
years imprisonment.5
The State proposed one aggravating factor: AS
12.55.155(c)(21) that Grohs had a history of repeated instances
of criminal conduct similar in nature to his present offense. To
prove this aggravating factor, the State relied on the fact that
Grohs had six prior convictions for driving while intoxicated
(the one prior felony, plus five earlier misdemeanor
convictions). At the sentencing hearing, Grohss attorney
conceded that this aggravator was proved.
The presence of this aggravating factor authorized the
superior court to exceed the 2-year presumptive term and consider
any sentence up to the 5-year maximum term for a class C felony.6
Based on the aggravator, the superior court sentenced Grohs to 4
years imprisonment with 1 years suspended (i.e., 2 years to
serve).
While Grohss case was on appeal, the United States
Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme
Court held that a defendant has a right to a jury trial (under
the Sixth Amendment to the United States Constitution) with
regard to any disputed factual issue, other than a prior
conviction, which increases the defendants maximum sentence.7
Grohs argues that the superior court violated Blakely
in his case by increasing his sentence above the 2-year
presumptive term, based on aggravator (c)(21), without offering
him a jury trial on this aggravator.
Based on the analysis in our recent decision in Nease
v. State, 105 P.3d 1145 (Alaska App. 2005), we conclude that
Grohs failed to establish that his traffic stop was pretextual.
And with regard to the Blakely issue, we conclude that Grohs has
failed to show plain error (for reasons that we explain in detail
below). We therefore affirm Grohss conviction and his sentence.
The claim that the traffic stop was pretextual
Grohs contends that, even though his rear
license plate may not have been illuminated as required
by 13 AAC 04.025(c), the state troopers true intention
was not to enforce this regulation (either by issuing a
citation to Grohs, or by warning Grohs that his vehicle
was not in compliance). Rather, Grohs suggests that
the troopers true intention was to investigate whether
Grohs might be driving while under the influence and
that, because the officer had no reasonable suspicion
to justify a DUI stop, the officer used the equipment
violation as an alternate justification for making
contact with Grohs. Grohs argues that we should
declare this type of police conduct unconstitutional.
Grohss argument is answered by our recent
decision in Nease v. State. In Nease, the police
stopped the defendants vehicle because it had a non-
functioning rear brake light.8 Nease claimed that the
officers decision to stop his vehicle was not prompted
by the non-functioning brake light, but rather because
the officer suspected that Nease might be driving while
under the influence. Because the officers action was
prompted by this ulterior motive, Nease asked us to
declare that the traffic stop was a pretext and
unlawful.9
We concluded that, even under the doctrine of
pretext stops, the police officers subjective
motivation for making the traffic stop is only one part
of the defendants required proof:
As Professor LaFave explains in his work
on search and seizure, the fact that a police
officer may have an ulterior motive for
enforcing the law is irrelevant for Fourth
Amendment purposes even under the doctrine
of pretext searches unless the defendant
proves that this ulterior motive prompted the
officer to depart from reasonable police
practices[.] ...
We assume for purposes of argument that
[the officer] decided to follow Neases
vehicle because he suspected that Nease might
be intoxicated ... . But [the officers]
decision to follow Neases vehicle did not
infringe Neases Fourth Amendment rights.
. . .
[The officer] observed that Nease had a
non-functioning brake light. [He] pulled
Nease over to cite him for this traffic
offense a stop that was supported by
probable cause. Even if we were to subscribe
to the doctrine of pretext stops, the
question would be whether Nease proved that
[the officer] departed from reasonable police
practice when he decided to stop Nease
because of the non-functioning brake light.
Nease, 105 P.3d at 1148-49 (quotation from
LaFave and footnotes omitted).
We noted that [t]here are numerous
factors that a police officer may properly
consider when deciding whether to stop a
motorist for a traffic violation including
the egregiousness or seriousness of the
violation (i.e., whether it poses a danger to
safety), any earlier police contacts with the
motorist or the vehicle, the time of day or
night, the weather and road conditions, and
the press of other business (or lack
thereof).10
We also noted that Nease presented
no evidence that the traffic stop in his case
was a departure from reasonable police
practice:
Nease presented no evidence to suggest
that police officers never stop motorists to
issue citations for equipment violations, or
that they would never do so under the
circumstances of this case. Moreover, Nease
has never asserted (much less shown) that
[the officer] manipulated the traffic stop in
this case by abnormally expanding or
extending his contact with Nease so that he
could investigate Neases potential drunk
driving.
There is no evidence that [the officers]
contact with Nease exceeded the normal
duration or scope of a traffic stop for an
equipment violation. As far as we can tell
from this record, it was immediately apparent
to [the officer], when he contacted Nease
during the traffic stop, that Nease might be
impaired. And because [the officers] initial
contact with Nease gave him reasonable
suspicion to believe that Nease was driving
while under the influence, [the officer]
could properly ask Nease to perform field
sobriety tests.
Nease, 105 P.3d at 1149-1150.
For these reasons, we concluded
that even if we were to adopt the doctrine of
pretext stops and searches, Nease failed to
establish that his traffic stop was improper
under this doctrine. Id. at 1150.
We reach the same conclusion in
Grohss case; the superior court properly
found that the traffic stop was lawful.
The Blakely claim
As explained above, Grohs was originally
indicted for both felony driving under the
influence and felony breath test refusal; however,
as part of the plea bargain in this case, the
State dismissed the driving under the influence
charge, and Grohs was allowed to plead no contest
to the single charge of felony breath test
refusal.
Under Alaskas pre-2005 presumptive sentencing
laws, because Grohs was a second felony offender, he
faced a 2-year presumptive term. This 2-year term
would have constituted the upper boundary of the judges
sentencing authority unless the State proved one or
more aggravating factors under AS 12.55.155(c).
The State proposed one aggravating factor:
(c)(21) that Grohs had a history of repeated instances
of criminal conduct similar in nature to the offense
for which [Grohs was] being sentenced. To prove this
aggravating factor, the State relied on the fact that
Grohs had six prior convictions for driving under the
influence (or, as it used to be called, driving while
intoxicated).
Conceivably, Grohs might have argued that his
prior convictions for driving under the influence were
not similar in nature to his present offense of breath
test refusal. However, the proper resolution of this
legal issue is not clear,11 and Grohs arguably had a
tactical reason for declining to raise this legal issue
(because, if Grohs raised this objection, the State
might try to withdraw from the plea bargain).
In any case, Grohs never argued that, as a
legal matter, his six prior convictions for driving
under the influence did not qualify as similar criminal
conduct for purposes of aggravating factor (c)(21).
Instead, Grohss attorney conceded that, because of his
prior convictions, the aggravating factor was proved.
Relying on this aggravator, the judge increased Grohss
sentence above the applicable 2-year presumptive term.
(Grohs received 2 years to serve, plus an additional 1
years suspended.)
On appeal, Grohs challenges this aggravator.
He does not dispute the fact that he has six prior
convictions for driving under the influence (or driving
while intoxicated). Nor does Grohs argue that, as a
legal matter, his prior DUI convictions were
insufficiently similar to the offense of breath test
refusal. Rather, Grohs takes issue with the procedures
that the sentencing judge followed when she found
aggravator (c)(21).
In Blakely v. Washington,12 the United
States Supreme Court held that the Sixth Amendment to
the United States Constitution guarantees criminal
defendants the right to a jury trial, and the right to
demand proof beyond a reasonable doubt, with regard to
any disputed factual issue, other than a prior
conviction, which increases the defendants maximum
sentence.13
Grohs argues that the sentencing judges
finding of aggravator (c)(21) contravened Blakely
because Grohs never received a jury trial on this
aggravating factor, and because the State was never
made to prove this aggravating factor beyond a
reasonable doubt. (Under the pre-2005 version of
AS 12.55.155(f), aggravating factors and mitigating
factors were to be proved by clear and convincing
evidence.)
We begin our analysis of Grohss Blakely claim
by noting that the aggravating factor at issue here, AS
12.55.155(c)(21), is not limited to proof of a
defendants prior convictions. As we said in Turpin v.
State, when AS 12.55.155(c)(21) speaks of a defendants
criminal history, this term includes acts that could
have been charged as crimes, regardless of whether the
defendant was ever prosecuted and convicted for those
acts.14 Thus, in Grohss case, the State theoretically
might have attempted to prove this aggravator by
offering evidence that Grohs had committed prior
uncharged acts of driving under the influence.
But the State did not rely on uncharged
criminal conduct in Grohss case. Instead, the State
relied on Grohss six prior convictions for DUI. And a
defendants prior convictions are exempted from the
right to jury trial recognized in Blakely.15 That is,
when a defendants maximum sentence hinges on the
defendants prior convictions, at least when the
defendant does not dispute the fact of those prior
convictions, a sentencing judge can rely on the prior
convictions without submitting them to a jury.
We recently explained that this exception for
prior convictions makes sense because the fact of a
criminal conviction necessarily means that the
defendant was offered the right to trial by jury and
the right to make the government prove the charge
beyond a reasonable doubt:
For [a] defendant to be convicted of [a]
crime ... , 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.
Edmonds v. State, __ P.3d __, Alaska App.
Opinion No. 1998 (July 29, 2005), slip
opinion at p. 6.
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).
We accordingly hold that,
consistent with Blakely, a sentencing judge
under Alaskas pre-2005 presumptive sentencing
laws could properly rely on a defendants
prior convictions as a basis for finding
aggravator (c)(21) at least when the
defendant did not dispute the fact of those
convictions, and when the State relied simply
on the convictions themselves and the legal
elements of those crimes, rather than
attempting to introduce evidence of the
particular facts underlying the prior
convictions.16
For these reasons, there was no
Blakely error at Grohss sentencing.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
113 AAC 04.025(c): Either a taillight or a separate light
must illuminate, with a white light, the rear registration plate,
so that it is clearly visible from a distance of 50 feet to the
rear [of the vehicle]. The light must be wired so as to be
illuminated when the headlights or auxiliary driving lights are
illuminated.
2AS 28.35.030(n) and AS 28.35.032(p), respectively.
3See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
4AS 28.35.032(p).
5See former AS 12.55.125(e)(1) (pre-2005 version).
6See the pre-2005 versions of AS 12.55.155(a)(1) and AS
12.55.125(e).
7Blakely, 542 U.S. at __, 124 S.Ct. at 2536-38.
8Nease, 105 P.3d at 1146-47.
9Id., 105 P.3d at 1146.
10Id. at 1149.
11On the one hand, the act of refusing the breath test is
obviously distinct from the act of driving under the
influence. A defendant can be guilty of DUI and yet not
guilty of breath test refusal or vice-versa. On the other
hand, the Alaska legislature obviously considers these two
offenses to be significantly related. Under AS 28.35.030,
when a defendant is charged with driving under the influence
and the question is to determine the applicable mandatory
minimum sentence or whether, based on the defendants
criminal history, the offense should be charged as a felony,
both the defendants prior convictions for DUI and the
defendants prior convictions for breath test refusal count
equally. See AS 28.35.030(b), (n), (t)(4). The same is
true when a defendant is charged with breath test refusal.
See AS 28.35.032(g), (p), (t)(2).
12542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
13542 U.S. at __, 124 S.Ct. at 2536-38.
14Turpin, 890 P.2d 1128, 1132 (Alaska App. 1995), citing
Fagan v. State, 779 P.2d 1258, 1260 (Alaska App. 1989).
15Blakely, 542 U.S. at __, 124 S.Ct. at 2536. And see
United States v. Booker, __ U.S. __, 125 S.Ct. 738, 756; 160
L.Ed.2d 621 (2005).
16Our resolution of Grohss case should be compared with the
ruling of the United States Supreme Court in Shepard v.
United States, __ U.S. __, 125 S.Ct. 1254, 1262; 161
L.Ed.2d 205 (2005) (While the disputed fact here can be
described as a fact about a prior conviction, it is too
far removed from the conclusive significance of a prior
judicial record, and too much like the findings subject
to [the rule announced in] Apprendi, to say that
Almend rez-Torres [523 U.S. 224, 118 S.Ct. 1219, 140
L.Ed.2d 350 (1998)] clearly authorizes a judge to
resolve the dispute. (emphasis added)); and the ruling
of the Oregon Court of Appeals in State v. P‚rez, 102
P.3d 705, 709-710 (Or. App. 2004).
