Touch N' Goź, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Griest v. State (09/02/2005) ap-2007
Griest v. State (09/02/2005) ap-2007
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
SUGAR R. GREIST,
)
) Court of
Appeals No. A-8859
Appellant,
)
Trial Court No. 2KB-03-0086 CR
)
v.
) O
P I N I O N
)
STATE OF ALASKA,
) [No. 2007 -
September 2, 2005]
)
Appellee.
)
)
Appeal from the
Superior Court, Second Judicial District,
Kotzebue, Richard H. Erlich, Judge.
Appearances: Diane L. Foster, Assistant
Public Defender, Kotzebue, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
In 2003, Sugar R. Greist was convicted of third-degree
assault, a class C felony.1 Greist was a first felony offender.
Under Alaska sentencing law at that time, there was no
presumptive term of imprisonment for first felony offenders
convicted
of class C felonies.2 However, Greists sentencing was governed
by former Alaska Statute 12.55.125(k)(2). This statute declared
that, in the absence of one or more of the aggravating factors
defined in AS 12.55.155(c), or extraordinary circumstances as
defined in AS 12.55.165, a first felony offender convicted of a
class C felony could not receive more than 2 years to serve the
presumptive term established for second felony offenders
convicted of class C felonies.3
At Greists original sentencing, the superior court
imposed a sentence that entailed less than 2 years to serve: 36
months with 27 months suspended (i.e., 9 months to serve).
However, Greist later violated the conditions of his probation,
and the superior court imposed the previously suspended 27 months
of imprisonment. Thus, following his probation revocation,
Greists sentence for third-degree assault totaled 3 years to
serve 1 year more than the 2-year ceiling prescribed by former
AS 12.55.125(k)(2).
In this appeal, Greist contends that this 3-year
sentence is illegal under the United States Supreme Courts
decision in Blakely v. Washington4 because he never received a
jury trial on any aggravating factors.
Under Blakely, a defendant normally has a right to jury
trial, and a right to demand proof beyond a reasonable doubt,
whenever the defendants sentencing ceiling hinges on disputed
issues of fact.5 However, Blakely exempts a defendants prior
convictions from this rule.6 In Greists case, the record
discloses (and Greist does not dispute) that he was previously
adjudicated a delinquent juvenile for conduct that would have
been a felony if committed by an adult. This is an aggravating
factor under AS 12.55.155(c)(19). And, for the reasons explained
here, we conclude that this aggravating factor falls within
Blakelys exception for prior convictions.
Thus, the superior court was authorized to rely on this
aggravating factor without holding a jury trial. And, based on
this aggravating factor, the superior court was authorized to
exceed the normal sentencing ceiling of 2 years to serve,
codified in former AS 12.55.125(k)(2).
Factual and procedural background
Greists conviction of assault in the third degree arose
from events which occurred on February 1, 2003. According to the
presentence report, Greist forced a 15-year-old boy to drink
alcoholic beverages, and then Greist took the boy riding on a
snow machine, even though Greist himself was intoxicated. Greist
drove the snow machine over a cliff, injuring himself and the
boy. The boy suffered severe injuries as a result of this crash.
When Greist was taken into custody, his blood alcohol level was
measured at .163 percent more than twice the legal limit for
operating a motor vehicle.
Greist had a prior misdemeanor conviction for driving
while intoxicated. He also had been adjudicated a delinquent
minor several times.
Greist reached a plea agreement with the State in which
he pleaded no contest to third-degree assault, a class C felony.
Because Greist was a first felony offender, he was not subject to
a presumptive term of imprisonment. However, as explained above,
his sentencing was governed by former AS 12.55.125(k)(2), which
set a ceiling of 2 years to serve unless the State proved one or
more of the aggravating factors listed in AS 12.55.155(c) or
extraordinary circumstances as defined in AS 12.55.165.
In advance of Greists sentencing, the State gave notice
that an aggravating factor applied to Greists case Greists prior
criminal history include[d] an adjudication as a delinquent for
conduct that would have been a felony if committed by an adult.7
Greist did not dispute this aggravating factor. In
fact, at the sentencing hearing, the defense attorney conceded
that Greist had several juvenile delinquency adjudications for
offenses that would have been felonies if Greist had been an
adult. However, Greists attorney asked the court not to place
great weight on this aggravating factor, since Greist had never
spent a prolonged period of time in custody as a result of these
delinquency adjudications.
Superior Court Judge Richard H. Erlich did not address
this proposed aggravating factor when he imposed sentence.
Instead, he sentenced Greist to less than the statutory ceiling:
36 months with 27 months suspended.
After serving these 9 months, Greist was placed on
probation for three years. Shortly thereafter, the State filed
petitions to revoke Greists probation (for failing to report to
his probation officer and for failing to complete a substance
abuse treatment program).
Three weeks later, Greist was arrested for unlawfully
bringing alcoholic beverages into Kotzebue by airplane. At a
subsequent bench trial, Greist was found guilty of transporting
alcoholic beverages by common carrier8 (a class A misdemeanor)
and making a false report9 (a class A misdemeanor).
On January 14, 2004, the State filed yet another
petition to revoke Greists probation from the third-degree
assault conviction. This petition alleged that Greist had
violated his probation by failing to complete the substance abuse
program, by possessing alcoholic beverages, and by violating
state law (based on Greists recent convictions for transporting
alcoholic beverages and making a false report).
On June 24, 2004 (coincidentally, the day on which
Blakely was issued), Judge Erlich held a hearing on the States
petition to revoke Greists probation. At that hearing, Greist
admitted the alleged violations of probation.
Judge Erlich concluded that Greists violations of
probation required revocation of his probation. And, based on
the facts of Greists original offense, his prior record, and his
conduct while on probation, Judge Erlich further concluded that
he should impose all of Greists previously suspended 27 months of
imprisonment.
In his sentencing remarks, Judge Erlich expressly noted
that one of the aggravated features of Greists case was Greists
juvenile record in particular, the fact that Greist had a
delinquency adjudication for conduct that would have been a
felony if Greist had been an adult:
The Court: On a petition to revoke
probation, I look at the nature of the
[original] charges, [the defendants] conduct
while on probation, and ... the original
sentencing criteria.
Mr. Greist has admitted to [new]
violations of the law ... . [And] there was
... consumption of alcohol [while on
probation].
He was [originally] convicted of an
assault in the third degree ... . He has a
prior conviction for driving while
intoxicated in 2002. He has a juvenile
adjudication for an offense which would have
been a felony.
. . .
Given the nature of his juvenile record
and it ... seems, Im sorry to say, that there
are not long gaps between those [juvenile]
incidents and whats happening in his adult
life I [must consider] protection of the
public as my primary sentencing goal.
. . .
So, therefore, I am going to revoke the
[previously] suspended 27 months. All time
is revoked.
Greist now appeals this sentence.
Greist argues that the superior courts
sentencing procedure was unlawful that Judge
Erlich violated Greists Sixth Amendment right
to jury trial as interpreted in Blakely.
Greist also argues that even if the
sentencing procedure was lawful, his sentence
is excessive.
The Blakely issue
Greist points out that, under
former AS 12.55.125(k)(2), Judge Erlich could
not sentence him to a term of imprisonment
exceeding 2 years to serve unless the judge
found one or more of the aggravating factors
listed in AS 12.55.155(c) or extraordinary
circumstances as defined in AS 12.55.165.
Greist argues that, under Blakely v.
Washington, he was entitled to a jury trial
regarding any proposed aggravating factors
and that, because no jury trial was ever held
on any aggravating factors, Judge Erlich had
no authority to exceed the statutory ceiling
of 2 years to serve when he revoked Greists
probation.
We agree with Greist that, under
former AS 12.55.125(k)(2), Judge Erlich could
not impose a sentence entailing more than 2
years to serve unless one or more aggravating
factors were proved. And, because Greists
probation revocation was not final when
Blakely was decided, Greist is entitled to
the benefit of the Supreme Courts decision in
Blakely to the extent that it affects the
legality of that probation revocation and the
resulting amended sentence.10
However, as we explained above,
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.
One obvious rationale for this
exception is the fact that in the case of a
prior conviction, the defendants rights to
jury trial and to proof beyond a reasonable
doubt have already been honored. As we
recently explained in Edmonds v. State:11
For [a] defendant to
be convicted of [a] crime
... , one of three things
had to happen: either (1)
the defendant exercised
[his] 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.[12]
The same thing is true with respect
to juvenile delinquency adjudications under
Alaska law. The standard of proof in
juvenile delinquency proceedings is beyond a
reasonable doubt.13 And in R.L.R. v.
State,14 our supreme court held that the
Alaska Constitution guarantees a right of
jury trial to any minor who is alleged to be
delinquent based on conduct that, if
committed by an adult, would be a crime
carrying a penalty of incarceration.15
Thus, under the Alaska
Constitution, whenever a minor is alleged to
be delinquent based on conduct that would be
a felony if committed by an adult, that minor
cannot be adjudicated a delinquent unless a
jury finds the allegation proved beyond a
reasonable doubt (or unless the minor waives
his right to jury trial). We therefore
conclude that an Alaska juvenile delinquency
adjudication based on felony conduct falls
within the Blakely exception for prior
convictions.
As explained above, it is an
aggravating factor under AS 12.55.155(c)(19)
that the defendant has a prior juvenile
delinquency adjudication for conduct that
would be a felony if committed by an adult.
And, as also explained above, Greist did not
dispute that he had such a delinquency
adjudication. In fact, his attorney conceded
that Greist had several juvenile delinquency
adjudications for offenses that would have
been felonies if Greist had been an adult.
Therefore the record clearly establishes
aggravator (c)(19).
Under Blakely, Judge Erlich was
authorized to rely on this aggravator without
the need for a further jury trial. And,
because of this aggravator, Judge Erlich was
authorized under former AS 12.55.125(k)(2) to
sentence Greist to more than 2 years to
serve. For these reasons, we hold that
Greists sentence does not violate Blakely.
Greists claim that his sentence is
excessive
As we noted above, Greist argues in
the alternative that, even if his probation
revocation sentence is legal under Blakely,
that sentence is nevertheless excessive.
When he sentenced Greist following
the probation revocation, Judge Erlich
considered the seriousness of the original
conduct that led to Greists assault
conviction. He noted that Greist was highly
intoxicated when he drove the snow machine,
and that Greist recklessly drove the snow
machine over a cliff, inflicting severe
injuries on his young passenger (and injuring
himself as well). Judge Erlich further noted
that Greists blood alcohol level was .163
percent shortly after the accident. And the
judge observed that, shortly before this
incident, Greist had been convicted for
driving while intoxicated. Judge
Erlich also considered Greists extensive
juvenile record and his failures on juvenile
probation. He specifically observed that
Greist had a juvenile adjudication for an
offense which would have been a felony had
Greist been an adult.
The judge concluded that, given the
seriousness of Greists offense and Greists
poor record, he should impose all 27 months
of Greists previously suspended jail time.
Judge Erlichs findings are
supported by the record, and we conclude that
these findings in turn support the sentence
that he imposed. We accordingly conclude
that Greists sentence is not clearly
mistaken.16
Conclusion
The sentencing decision of the
superior court is AFFIRMED.
_______________________________
1 AS 11.41.220(d).
2 See the pre-2005 version of AS 12.55.125(e).
3 AS 12.55.125(k) was repealed by SLA 2005, ch. 2, 32
(effective March 22, 2005). Both AS 12.55.155(c) and AS
12.55.165 were also amended by the same session law (18 and 22,
respectively), but in ways that are not pertinent to Greists
appeal.
4 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
5 Id. at _____, 124 S.Ct. at 2536-37.
6 Id.
7 AS 12.55.155(c)(19).
8 AS 04.16.125(a)(1) and (2); AS 04.16.180(a).
9 AS 11.56.800(a)(1).
10See our recent decision in Haag v. State, _____ P.3d
_____, Alaska App. Op. No. 8687 (July 22, 2005).
11_____ P.3d _____, Alaska App. Op. No. 8998 (July 29,
2005).
12Edmonds, _____ P.3d at _____, Op. No. 8998 at 3.
Accord: Ordu€o-Mireles, 405 F.3d 960, 962 (11th Cir.
2005); United States v. Johns, 336 F.Supp.2d 411, 422
(M.D. Pa. 2004); State v. Chiappetta, 107 P.3d 366, 373-
74 (Ariz. App. 2005); Ląpez v. People, 113 P.3d 713,
730-31 (Colo. 2005); State v. Lowery, 826 N.E.2d 340,
352 (Ohio App. 2005); State v. Prez, 102 P.3d 705, 709
(Or. App. 2004); State v. Hughes, 110 P.3d 192, 201
(Wash. 2005).
13E. J. v. State, 471 P.2d 367, 368-69 (Alaska 1970); In re
Winship, 397 U.S. 358, 362-63, 90 S.Ct. 1068, 25
L.Ed.2d 368 (1970); Alaska Delinquency Rule 11(b).
14487 P.2d 27 (Alaska 1971).
15Id. at 33.
16See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).
