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Ned, Jr. v. State (08/19/2005) ap-2003
Ned, Jr. v. State (08/19/2005) ap-2003
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
FREDERICK L. NED JR.,
)
) Court of
Appeals No. A-8721
Appellant,
)
Trial Court No. 4FA-03-382 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2003 August 19, 2005]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mark I. Wood,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. John A. Scukanec, 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.
Frederick L. Ned Jr. was convicted of manslaughter and
sentenced to 10 years imprisonment with 3 years suspended (7
years to serve). In this appeal, Ned claims that the police
obtained a statement from him in violation of his rights under
Miranda v. Arizona.1 He also claims that his sentence is illegal
in two respects. First, Ned argues that he was denied his Sixth
Amendment right to jury trial, as construed in Blakely v.
Washington,2 on some of the questions of fact that the State was
required to prove in order to support the judges sentencing
decision. Second, Ned argues that the sentencing judge exceeded
the scope of permissible restitution when the judge required Ned
to reimburse the cost of air fare for several people to attend
the victims funeral; these people were related to the victim, but
not closely enough to qualify as victims of the offense under AS
12.55.185(17)(C).
For the reasons explained here, we conclude that Ned
was not in custody when he gave his statement to the police, and
therefore there was no Miranda violation. With regard to Neds
sentence, we conclude that, consistent with Blakely, the
sentencing judge could impose the applicable presumptive term of
7 years to serve. However, as we explain here, the judge
violated state law specifically, AS 12.55.155(e) when he relied
on aggravating factor AS 12.55.155(c)(4) to add an additional 3
years of suspended jail time to Neds sentence. We therefore
vacate those 3 suspended years. Finally, we agree with Ned that
he should not have been ordered to reimburse the cost of the air
fare for the people to attend the funeral.
Underlying facts pertaining to the Miranda issue, and
our resolution of this issue
On the afternoon of August 28, 2002, in
Allakaket, Frederick Ned and Brett Stevens decided to
go for a drive in Neds fathers pickup truck. The truck
was in a state of disrepair: it had no drivers side
door, the trucks front tires were of different sizes,
the trucks front brakes and emergency brake were
inoperable, and its rear brakes were badly worn. Both
Ned and Stevens had been drinking heavily the night
before and earlier that morning. Ned was driving the
truck, and Stevens was riding in the passenger seat.
Ned went to the Allakaket airport and drove
onto the runway. The airport runway ends in an
embankment with a 20-foot drop to the marshes below.
Ned launched the truck off the end of the runway. The
truck traveled about 15 to 20 feet through the air and
landed upside-down. Ned was uninjured, but Stevens was
killed.
The Alaska State Troopers were contacted, and
two troopers Sergeant Scott R. Grasle and Trooper Karl
R. Main arrived in Allakaket approximately four hours
after the accident. Upon their arrival, the troopers
briefly visited the site of the accident. Witnesses
informed them that Ned had been driving, and that he
appeared intoxicated. Then, a few minutes before 8:00
in the evening, the troopers went to Neds house to
speak to him.
Eliza Ned, Fredericks mother, answered the
door. When the troopers informed Mrs. Ned that they
wanted to speak to her son, Frederick, she told them
that he was asleep, and she directed them to the
bedroom where Ned was sleeping.
Trooper Main stood by the bedroom door while
Sergeant Grasle went to Neds bed and woke him up by
calling his name. When Ned awoke, the troopers asked
if they could talk to him. Ned told the troopers that
he needed to put on some clothes, so Grasle left the
room and the two troopers waited in the hallway,
talking to Mrs. Ned, while Ned dressed.
While the troopers were standing in the
hallway, Ned said something to them, apparently asking
what the troopers wanted to talk about, and Grasle
responded, Yeah, about the ... car accident. Ned
asked, Where?, and Grasle replied, At the end of the
runway.
When Ned emerged from the bedroom, Grasle
again asked Ned, Can we talk to you?, and then the
troopers accompanied Ned down the hall to the living
room, where they sat down. At this point, the troopers
began questioning Ned about the accident at the
airport. Ned contends that he was in custody during
this interview in his living room, and that therefore
the troopers were obliged to warn him of his rights
under Miranda.
Superior Court Judge Mark I. Wood, who
conducted the evidentiary hearing into this matter,
found that although the troopers assured Neds mother
that they had not come to arrest him, the troopers
never explicitly said this to Ned until toward the end
of the interview, and the troopers never told Ned that
he was under no obligation to speak to them.
Nevertheless, Judge Wood concluded that, under the
circumstances, a reasonable person in Neds position
would have believed that he was free to end the
conversation.
Judge Wood pointed out that the troopers did
not roust Ned from his bed; rather, they woke him up by
calling his name, and then they asked if they could
speak to him. When Ned indicated a desire to dress,
the troopers left the bedroom and conversed with his
mother in the hallway while Ned dressed. The judge
further found that, when Ned and the troopers walked to
the living room, the troopers took seats at the far end
of the room, while Ned seated himself on the couch,
close to the door. In other words, as Judge Wood
explained, there was no trooper standing between [Ned]
and the door.
Judge Wood further noted that the interview
took place in mid-evening in the summer, when people
were normally up and about, and that Neds mother came
in and out of the room during the troopers conversation
with her son. In fact, as Judge Wood found, Trooper
Main was the one who primarily conducted the interview;
Sergeant Grasle asked a few questions, but he too (like
Neds mother) was in and out [of the room], ... [not]
hovering around.
Judge Wood also found that the tone of the
interview was polite, and that the questions that the
troopers addressed to Ned were non-accusatory. The
judge concluded that [t]he pace of the interview, the
nature of the questions, [and] the tone of the
interview all indicated that the troopers were just ...
trying to get through a very difficult time in a very
polite and considerate tone. Judge Wood found that the
circumstances of the interview carried none of the
indication[s] and concerns that the ... Miranda court
had about ... heavy-handed interrogation and coercion.
Instead, the interview was conducted in a most casual,
relaxed atmosphere, and the troopers were patient in
listening to his answers. According to Judge Wood, the
non-custodial tenor of the interview was corroborated
by the fact that, even though Ned admitted that he had
been quite intoxicated when he drove the car (during
the interview, some five hours after the incident, Ned
described himself as still being 7 on a scale of 1 to
10), the troopers did not arrest Ned at the end of the
interview; instead, they left his house.
We have reviewed the audio tape of the
troopers visit to Neds house, as well as the testimony
presented at the evidentiary hearing, and we find that
this record supports Judge Woods characterization of
what occurred. Based on these facts, we agree with
Judge Wood that Ned was not in custody for Miranda
purposes during the interview at his house.
Neds claims based on Blakely v. Washington: underlying
facts
Ned was a first felony offender. His
offense, manslaughter, is a class A felony.3 Under AS
12.55.125(c), a first felony offender convicted of
manslaughter faces a presumptive term of 5 years
imprisonment unless their offense falls within the
circumstances enumerated in AS 12.55.125(c)(2)(B) or
(2)(C), in which case the applicable presumptive term
is 7 years.
In Neds case, the State asserted that Neds
offense fell within subsection 125(c)(2)(C). This
subsection applies when the conduct resulting in the
[defendants] conviction [for manslaughter] involved
driving while under the influence of an alcoholic
beverage. Neds attorney filed a responsive pleading in
which the defense attorney acknowledged that the State
was correct that Ned was subject to sentencing under
subsection (2)(C). And, because the parties agreed
that Ned was subject to the 7-year presumptive term
specified in subsection (2)(C), Judge Wood sentenced
Ned on this basis.
Neds attorney also conceded the applicability
of one aggravating factor under AS 12.55.155(c):
(c)(4) that Ned employed a dangerous instrument (a
motor vehicle) in committing the offense. Based on
aggravator (c)(4), Judge Wood increased Neds sentence
by adding 3 suspended years to the 7-year presumptive
term. Thus, Neds final sentence was 10 years with 3
years suspended.
Now, on appeal, Ned (represented by a
different attorney) contends that this procedure
violated his Sixth Amendment right to jury trial as
construed in Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004). Ned actually makes
two Blakely arguments, both of them contained in a
single conclusory sentence.
First, Ned asserts that even though his trial
attorney expressly conceded the fact that triggered the
7-year presumptive term (i.e., that Ned committed
manslaughter while he was driving under the influence)
and also conceded the applicability of aggravator
(c)(4) (i.e., that Neds offense involved the use of a
dangerous instrument), the sentencing judge was not
authorized to rely on the defense attorneys
concessions. Ned argues that, because the right to
jury trial was at stake, the sentencing judge was
required to address Ned personally and obtain Neds
personal and knowing waiver of jury trial regarding
both of these facts.
Second, Ned asserts that even if he had
personally waived the right to jury trial and had
personally conceded (a) that he was driving under the
influence and (b) that his offense involved the use of
a dangerous instrument, this would not have been
enough. Ned argues that, because Blakely holds that he
had a right to ask for a jury trial on these issues, he
must also be accorded the right to a grand jury
indictment on these issues. Ned points out that his
grand jury was never asked to consider these issues.
Because of this, Ned contends that the sentencing judge
had no authority to impose the higher presumptive term
or to enhance Neds presumptive term based on aggravator
(c)(4).
Neds claims are waived because they are inadequately
briefed
As we noted above, both of Neds arguments are
contained in a single conclusory (albeit lengthy)
sentence.4 This Court and the Alaska Supreme Court
have repeatedly held that arguments presented in this
sort of conclusory manner are inadequately briefed, and
are therefore waived.5
Even if Neds claims had not been waived, there was no
plain error when Judge Wood applied the 7-year
presumptive term, based on a finding that Ned committed
the homicide while driving under the influence
Even if Neds arguments regarding the
applicability of the 7-year presumptive term had not
been waived on account of his inadequate briefing, we
would still find no reversible error.
In the superior court, Ned raised no claim
concerning his right to jury trial or his right to a
grand jury decision as to whether he killed Stevens
while he was driving under the influence, or as to
whether the State could prove aggravator (c)(4).
Therefore, if Ned is to prevail in this appeal, he must
show plain error.
We turn first to Neds claim that he was
entitled to a jury trial on the fact that triggered the
higher presumptive term under AS 12.55.125(c)(2)(C)
the fact that he committed the homicide while he was
driving a motor vehicle under the influence.
Under Alaska law (even before the Blakely
decision), if Ned had contested this fact, the State
would have been obliged to prove this fact beyond a
reasonable doubt.6 This is the same burden of proof
that Blakely requires. Thus, if Alaska sentencing law
departed from Blakely, it did so only in one respect
that the finder of fact was the sentencing judge rather
than a jury.
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 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
Like the defendants in Johnson and Cotton,
Ned also asserts that his sentencing judge violated his
right to jury trial under the Sixth Amendment. We must
therefore engage in a harmless error analysis.
Under Alaska sentencing law at the time of
Neds offense and sentencing, he faced a 5-year
presumptive term for manslaughter unless the State
proved that Neds homicidal conduct involved driving
under the influence, in which case Ned faced a 7-year
presumptive term. We assume, for purposes of argument,
that Blakely applies to this situation, and that Ned
was therefore entitled to a jury trial on this issue of
fact. However, under Johnson and Cotton, Ned is not
entitled to reversal of his sentence unless he can show
that he was prejudiced by this error. At a minimum,
Ned must show that there is a reasonable possibility
that the decision on the specified issue of fact would
have been different if Blakely had been complied with.
As we noted above, even at the time of Neds
sentencing (i.e., before the Blakely decision), Alaska
law required the State to prove any fact that triggered
a higher presumptive term beyond a reasonable doubt.
We can therefore infer, from the defense attorneys pre-
sentencing concession of this issue, that the defense
attorney concluded that the evidence in Neds case
established beyond a reasonable doubt that Ned had
killed Stevens while driving under the influence.
The record shows that, even at the start of
Neds trial, his defense attorney had already concluded
that it was pointless to dispute the fact that Ned was
driving under the influence at the time of the
homicide. Neither in her opening statement nor in her
summation did Neds attorney dispute (1) that Ned was
driving the truck when Brett Stevens was killed, and
(2) that Ned was intoxicated at the time. Moreover,
the evidence presented at Neds trial provides ample
support for both of these conclusions. With regard to
Neds level of intoxication, here is a summary of the
evidence:
Neds uncle, Vincent Simon, testified that he
saw Ned driving the truck shortly before the accident,
and that when he saw Ned immediately after the
accident, Ned appeared intoxicated. Eliza Ned (Neds
mother) testified that when Ned came home after the
accident, she could tell he had been drinking, and that
he was drunk. Trooper Karl Main testified that, during
his interview with Ned (some four to five hours after
the homicide), he asked Ned how drunk he was on a scale
of 1 to 10. Ned replied that he was currently a 7, and
that he had been a 13 the night before.
Finally, the State presented testimony from
an expert who had analyzed a blood sample that Ned gave
to the troopers at the conclusion of his interview.
This expert testified that Neds blood alcohol level at
the time of his interview with the troopers was .232
percent that is, nearly four times the concentration
of alcohol that would support a conviction for driving
under the influence (.08 percent).
Based on this record, we conclude that the
evidence was overwhelming and essentially
uncontroverted that Neds blood alcohol level was at
least .08 percent at the time of the accident and
that, therefore, Ned was driving under the influence as
that offense is defined in AS 28.35.030(a)(2). Ned has
failed to show that there is any reasonable possibility
that the decision on this question would have been
different if the issue had been tried to a jury.
Thus, even assuming that it was
constitutional error under Blakely for Judge Wood to
decide this issue (rather than having a jury decide
it), Ned has failed to show plain error because he has
failed to show a reasonable possibility that he was
prejudiced by the error.
For similar reasons, we conclude that Ned has
failed to show plain error with respect to his claim
that he was entitled to a grand jury indictment on this
factual issue.
The federal Fifth Amendment right to grand
jury indictment does not apply to the states; it is not
a component of the due process of law guaranteed by the
Fourteenth Amendment.15 And Ned cites no authority to
support his assertion that the Blakely right to jury
trial (a right founded on the Sixth Amendment to the
United States Constitution) triggers a corresponding
right to grand jury indictment under the Alaska
Constitution. Finally, given the facts of Neds case,
there is no reasonable possibility that a grand jury,
presented with these facts, would have found in Neds
favor on the issue of whether he was driving under the
influence when he killed Stevens.
Despite the fact that Ned waived his Blakely attack on
aggravator (c)(4) by inadequately briefing the issue,
there is an obvious independent ground under Alaska law
for vacating the sentence enhancement that Ned received
on account of this aggravator
As we explained above, Neds attorney
conceded, and Judge Wood found, that aggravator AS
12.55.155(c)(4) applied to Neds case because Ned
employed a dangerous instrument i.e., a motor vehicle
when he committed the manslaughter.
As we also explained above, Neds Blakely
attack on aggravator (c)(4) is inadequately briefed and
is therefore waived. However, the Blakely issue is
ultimately moot. The superior courts enhancement of
Neds sentence based on aggravator (c)(4) was improper
for an altogether separate reason.
Aggravator (c)(4) declares that an offense is
aggravated if the defendant employed a dangerous
instrument in committing the offense. In Neds case,
the dangerous instrument was a motor vehicle, and it
was obvious that this aggravator applied.16
But AS 12.55.155(e) declares that there are
two circumstances in which a sentencing judge is
prohibited from relying on an applicable aggravating
factor to enhance a defendants presumptive term. The
first circumstance is when the aggravating factor is a
necessary element of the ... offense for which the
defendant is being sentenced. The second circumstance
is when the presence of the aggravating factor requires
the imposition of a presumptive term under
AS 12.55.125(c)(2).
Neds case is an example of this second
circumstance. Ned was sentenced to one of the
presumptive terms specified in AS 12.55.125(c)(2).
In particular, Ned was subject to a 7-year presumptive
term under subsection (c)(2)(C) because he committed
manslaughter while he was driving a motor vehicle under
the influence. Because Neds use of a motor vehicle was
a necessary element of the States proof that Ned was
subject to this 7-year presumptive term, Judge Wood was
prohibited from relying on aggravator (c)(4) to enhance
Neds sentence based on this same fact.
For this reason, Neds Blakely attack on
aggravator (c)(4) would be moot even if it had not been
waived. As a matter of state law, AS 12.55.155(e)
forbade the use of aggravator (c)(4) to enhance Neds
sentence.
Aggravator (c)(4) was the sole aggravating
factor that Judge Wood found to be proved. Thus,
without aggravator (c)(4), Judge Wood had no authority
to impose a sentence that exceeded the 7-year
presumptive term.17 We accordingly vacate the 3 years
of suspended imprisonment that Judge Wood added to Neds
sentence based on this aggravator.
The challenged restitution order
Many of Brett Stevenss out-of-town relatives
flew to the village of Evansville to attend his
funeral. As part of Neds sentence, Judge Wood ordered
Ned to pay restitution for the money spent on these air
fares.
Ned points out that many of these relatives
were not so closely related to Stevens as to fall
within the definition of victim contained in
AS 12.55.185(17)(C). This statute, which defines
victim for purposes of homicide cases, states that a
victim is a person living in a spousal relationship
with the deceased before the deceased died, [or] an
adult child, parent, brother, sister, grandparent, or
grandchild of the deceased, [or] any other interested
person [who has been] designated by a person having
[legal] authority to [make the designation].
Ned was ordered to pay the air fares of
various family members who attended Stevenss funeral;
some of these family members fall within the statutory
definition of victim, and some do not. On appeal, Ned
concedes that Judge Wood could properly order him to
pay restitution for the travel expenses incurred by
family members who qualify as victims under the
statute. But Ned argues that it was improper to order
him to pay the travel expenses of other, more distantly
related relatives, or the travel expenses of friends.
Ned contends that these expenses were not a
sufficiently direct consequence of a homicide.
The State responds to Neds argument by
pointing out that, under AS 12.55.045(a), restitution
is not strictly limited to victims. Rather, a
sentencing court is authorized to order the defendant
to pay restitution to the victim or other person
injured by the offense. And the State points out that
the air fares in dispute here were real, quantifiable
expenses which, but for Neds crime, would not have been
incurred.
As the parties acknowledge, there are few
decisions from other states on this point, and those
decisions are split. Some courts have upheld
restitution for travel expenses incurred by relatives
of the deceased, especially when that travel was
necessary not only to attend the funeral but also to
put the deceaseds affairs in order.18 However, other
courts have concluded that the travel expenses of
relatives are too indirect a consequence of a
homicide.19
It is true that, but for Neds act of
homicide, there would have been no need to hold a
funeral, and thus no need to expend money on travel
expenses to attend that funeral. Judge Wood relied on
this fact when he imposed the contested restitution.
But even in a civil lawsuit for wrongful
death, the test for determining the defendants
liability for damages is not a but for test, but rather
a proximate cause test. AS 09.55.580(b) declares: The
damages recoverable [in an action for wrongful death]
shall be limited to those which are the natural and
proximate consequence of the negligent or wrongful act
or omission of another. In other words, some expenses
are simply too indirectly related to the wrongful
homicide to qualify for reimbursement.
By analogy, we conclude that the test for
awarding restitution in a criminal case is not a but
for test. If this were the test if a defendants
liability for restitution extended to any and all
expenses that could be traced causally to the
defendants wrongful act then the scope of restitution
in a criminal case would exceed the scope of damages
that could lawfully be awarded in a wrongful death
lawsuit based on the same conduct. It is true that, in
past decisions, we have recognized that the purpose of
the restitution statutes is [to] make full restitution
available to all persons who have been injured as a
result of criminal behavior, to the greatest extent
possible.20 Nevertheless, we do not think that the
legislature intended for restitution in criminal cases
to exceed the restitution that could be awarded in
related civil cases.
Ned does not contest that the restitution
statute allows a sentencing judge to order the
defendant to repay the reasonable expenses of the
funeral itself. And, as we noted previously, there are
court decisions which uphold awards of restitution for
the travel expenses of relatives or personal
representatives who must settle or attend to the
affairs of the deceased. But we have found no cases in
which restitution has been awarded for all of the money
spent to bring the deceaseds friends and relatives to
the funeral.
We acknowledge that these travel expenses are
real and verifiable. And in some cases,
unquestionably, these expenses are a hardship to the
people who pay them. But we have significant doubt
whether the travel costs of all family members and
friends are a sufficiently direct result of the
defendants crime to qualify for restitution. In other
words, we have significant doubt whether the
legislature intended for the defendants liability to be
this broad. And, because we are dealing with a
question of criminal liability, we must resolve our
doubt in favor of the defendant.21
As explained above, Ned does not contest his
liability for the travel expenses of those relatives
who qualify as victims under AS 12.55.185(17)(C). For
this reason, we need not decide whether this portion of
Neds restitution order was lawful. However, we vacate
the portion of the order directing Ned to pay
restitution for the expense of bringing other relatives
and friends to the funeral.
Conclusion
Neds conviction is AFFIRMED. Moreover, we
uphold the superior courts decision that Ned was
subject to a 7-year presumptive term of imprisonment.
However, we VACATE the 3 years of suspended
imprisonment that the superior court added to this
presumptive term. In addition, we VACATE the portion
of the judgement that directs Ned to pay restitution
for the travel expenses of relatives and friends of
Brett Stevens who do not qualify as victims under the
definition contained in AS 12.55.185(17)(C).
_______________________________
1384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
3AS 11.41.120(b).
4Here[,] Mr. Ned was sentenced to an enhanced presumptive
[term] without being provided with his state and federal
right to have a jury determine by a unanimous verdict proved
beyond a reasonable doubt that the factor used to establish
the enhanced presumptive [term] of seven years [sic: this
clause ends without a predicate], and without his state
grand jury right to have the grand jury consider all
elements of any felony offense, and without the court
obtaining a personal waiver from Mr. Ned that he waived
these constitutional entitlements. (Appellants Opening
Brief, page 13.)
5Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d
397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins.
Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v.
State, 577 P.2d 235, 237 n. 2 (Alaska 1978); Kristich v.
State, 550 P.2d 796, 804 (Alaska 1976); Sheridan v.
Anchorage, 100 P.3d 898, 900-01 (Alaska App. 2004);
Guerre-Chaley v. State, 88 P.3d 539, 544-45 (Alaska App.
2004); Copeland v. State, 70 P.3d 1118, 1126 (Alaska App.
2003).
6See Tuttle v. State, 65 P.3d 884, 891 (Alaska App. 2002);
Huf v. State, 675 P.2d 268, 273-74 (Alaska App. 1984).
7Johnson, 520 U.S. at 466-67, 117 S.Ct. at 1548-49.
8Id., 520 U.S. at 468-470, 117 S.Ct. at 1549-1150.
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).
13Id., 535 U.S. at 633, 122 S.Ct. at 1786.
14Id., 535 U.S. at 634, 122 S.Ct. at 1787.
15See Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28
L.Ed. 232 (1884).
16See, e.g., Pusich v. State, 907 P.2d 29, 34 (Alaska App.
1995).
17AS 12.55.125(c).
18See, e.g., State v. Baltzell, 857 P.2d 1291, 1292-93
(Ariz. App. 1992).
19See, e.g., Simpson v. State, 712 So.2d 1, 1-2 (Fla. App.
1997).
20Lonis v. State, 998 P.2d 441, 447 n. 18 (Alaska App.
2000).
21See Brookins v. State, 600 P.2d 12, 17 (Alaska 1979);
Wells v. State, 102 P.3d 972, 976 (Alaska App. 2004);
Whitesides v. State, 88 P.3d 147, 151 (Alaska App. 2004);
State v. ABC Towing, 954 P.2d 575, 579 (Alaska App. 1998);
Magnuson v. State, 843 P.2d 1251, 1253 (Alaska App. 1992);
State v. Andrews, 707 P.2d 900, 907-08 (Alaska App. 1985);
State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App. 1983).
