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McDole v. State (09/30/2005) ap-2011
McDole v. State (09/30/2005) ap-2011
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
ROY ERWIN McDOLE,
)
) Court of
Appeals No. A-8743
Appellant,
)
Trial Court No. 3AN-02-11247 CR
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2011 September 30, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, 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.
STEWART, Judge.
Roy Erwin McDole unlawfully claimed unemployment
benefits for two years. A jury convicted McDole of thirty-one
counts of unsworn falsification and one count of second-degree
theft.1 The State charged only one theft count by aggregating
all the periodic payments McDole received through the two-year
course of misconduct.2 McDole illegally obtained a total sum in
excess of $10,000.
McDole had been unconditionally discharged from a prior
felony conviction in 1991. The statutory ten-year period during
which this prior felony would make McDole a second felony
offender for presumptive sentencing expired during the two-year
period of his theft.3 Because McDoles series of thefts already
constituted felony theft before the ten-year period expired, we
agree with the superior court that McDole was properly sentenced
as a second felony offender.
McDole also argues that the superior court found a
statutory aggravating factor without submitting the issue to a
jury in violation of Blakely v. Washington.4 But we conclude
that the failure to submit the aggravating factor to a jury was
harmless. Accordingly, we affirm McDoles sentence.
Background facts
The State alleged that McDole wrongfully obtained
unemployment benefits by falsely claiming eligibility for the
benefits over a two-year period. The State aggregated all the
unlawfully obtained benefits in one count of second-degree theft.
The State also filed an information that charged thirty-five
counts of unsworn falsification for each time McDole applied for
benefits and falsely reported his eligibility. The time period
alleged in the indictment was June 6, 2000, through June 24,
2002. The jury convicted McDole of second-degree theft and
thirty-one of the thirty-five counts of unsworn falsification.
Before sentencing, the parties filed briefs addressing
the question of whether McDole should be sentenced as a first
felony offender or a second felony offender. The parties agreed
that McDole had one prior felony. But under AS
12.55.145(a)(1)(A), a prior felony ceases to count for sentencing
purposes when ten years have passed since the defendants
unconditional discharge from state supervision on that felony.
McDole was unconditionally discharged from his prior felony on
October 16, 1991. Thus, the date for determining McDoles status
as a first or second felony offender was October 15, 2001, the
day on which the ten-year statutory period expired. The
State argued that McDole should be sentenced as a second felony
offender because his series of thefts began in June 2000, well
before the October 2001 cut-off date. For his part, McDole noted
that the State charged his series of thefts as one aggregated
count of theft. McDole argued that, because he was charged with
one aggregated theft spanning two years, his offense was not
complete until June 24, 2002, the date of his last theft of
unemployment benefits. McDole thus argued that he should be
treated as a first felony offender, because his current offense
was not complete until eight months after the October 2001 cut-
off date for his prior felony.
The State also claimed that two statutory aggravating
factors applied to McDoles presumptive term: that McDoles
conduct was among the most serious included in the definition of
the offense; and that McDole had a history of similar criminal
conduct.5 McDole contested the most serious conduct aggravator,
but conceded that he had a history of similar criminal conduct.
At sentencing in January 2004, Superior Court Judge
Larry D. Card ruled that McDole was subject to a presumptive 2-
year term as a second felony offender. Judge Card rejected the
most serious conduct aggravator, and accepted the uncontested
history of similar conduct aggravator.
Judge Card aggravated McDoles presumptive term by
imposing suspended imprisonment. McDole received a 4-year term
with 2 years suspended for second-degree theft. Judge Card
merged the unsworn falsification counts and imposed a 1-year term
concurrent with the theft sentence.
On appeal, McDole renews his argument that he was not
subject to presumptive sentencing. In addition, McDole argues
that the superior court violated Blakely, which was decided after
McDoles sentencing, by not submitting the uncontested aggravator
to a jury.
Discussion
Alaska Statute 12.55.145(a)(1)(A) provides that a prior
conviction may not be considered if a period of 10 or more years
has elapsed between the date of the defendants unconditional
discharge on the immediately preceding offense and commission of
the present offense unless the prior conviction was for an
unclassified or class A felony.
McDole was unconditionally discharged from his prior
felony conviction on October 16, 1991. As a result, he would be
classified as a second felony offender for presumptive sentencing
for a felony committed on or before October 15, 2001. McDoles
conviction for second-degree theft was based on the aggregation
of McDoles individual acts of misconduct that occurred from June
6, 2000, through June 24, 2002.
McDole argues that his crime should be deemed committed
when the last act of misconduct was complete on June 24, 2002.
He notes that he was charged with theft in the second degree
based on AS 11.46.980(c), which states that the degree of a
property crime is determined by the aggregation of the dollar
amount of criminal acts committed under one course of conduct.
He further argues that another criminal statute, AS 12.10.030(a),
specifies that a crime involving a course of conduct is committed
when the course of conduct or the defendants complicity therein
is terminated.
McDole misreads AS 12.10.030(a), which addresses time
limitations for commencing prosecution and provides in full:
An offense is committed either when
every element occurs, or, if a legislative
purpose to prohibit a continuing course of
conduct plainly appears, at the time when the
course of conduct or the defendants
complicity therein is terminated. Time
starts to run on the day after the offense is
committed.6
Under this statute, a crime is committed when each element is met
unless it plainly appears that the legislature intended to define
the offense as a continuing course of conduct.7 And this court
has previously held that theft is not a continuing offense, but
is complete as soon as the thief appropriates the property of
another.8 In addition, the aggregation statute does not define
theft but is used to determine the degree of the theft that may
be charged with aggregation.
McDole committed theft each time he improperly received
unemployment benefits, in two-week intervals, starting in June
2000. By October 15, 2001, McDole had stolen over $8000, well
above the $500 threshold for felony theft.9
Nonetheless, McDole argues that the phrase commission
of the present offense in AS 12.55.145(a)(1)(A) is ambiguous as
to when a crime is committed, and that this court should rule in
his favor under the rule of lenity. It is well established that
ambiguities in criminal statutes should be read narrowly and
strictly construed against the State.10 It is also true that
neither the statute nor its legislative history offer guidance as
to the meaning of the phrase commission of the present offense.
While criminal statutes generally must be construed in
favor of the accused, a court is nevertheless obliged to avoid
construing statutes in a way that leads to patently absurd
results or to defeat of the obvious legislative purpose behind
the statute.11 McDoles conduct supported a charge of second-
degree theft well before ten years had lapsed since his previous
felony conviction. If we accepted McDoles construction of the
statute, he would be entitled to a more lenient sentence based on
the fact that he continued to steal for several months after the
ten-year statutory period expired. We conclude that the
legislature did not intend this anomalous result.
We need not decide whether a defendant in McDoles
situation should be treated as a second felony offender whenever
the defendants new offense commences within the ten-year
statutory period following an unconditional discharge from the
prior felony. To resolve McDoles appeal, it is sufficient to
note that McDoles series of thefts met the monetary requirement
for felony theft long before the ten-year period expired. We
hold that in these circumstances, the superior court properly
sentenced McDole as a second felony offender.
We now turn to McDoles contention that the superior
courts finding of the aggravating factor violated Blakely.
Blakely stands on a principle that the Supreme Court recently
repeated in United States v. Booker:12 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.13 The
defendant has a right to demand a jury trial on an aggravating
fact, and the State must prove the fact beyond a reasonable
doubt.14 If the defendant is denied this right, then the
sentencing judge cannot exceed the prescribed statutory ceiling.15
We have ruled that Alaskas pre-2005 presumptive
sentencing laws are directly affected by the Blakely decision
because under those laws, sentencing judges ruled on aggravators
and applied a clear and convincing evidence standard of proof.16
Under Blakely, aspects of the pre-2005 presumptive sentencing
laws violated the Sixth Amendment.17
McDole faced a 2-year presumptive term for second-
degree theft. Based on statutory aggravating factor AS
12.55.155(c)(21) (McDole had a history of criminal conduct
similar in nature to the present offense), Judge Card added an
additional 2 years of suspended imprisonment. McDole conceded
the history of similar criminal conduct aggravator at trial.
Nevertheless, Blakely applies retroactively to cases pending on
direct review.18 Because McDole did not object to the sentencing
procedure at trial, he must now show plain error.19
McDoles theft conviction stemmed from the unemployment
benefits he wrongfully received by falsely claiming eligibility.
The State offered evidence that McDole had a history of similar
criminal conduct to prove that McDole had made similar
misrepresentations on two other occasions in applying for Alaska
unemployment insurance. The presentence report indicated that on
both occasions, McDole received an overpayment due to
misrepresentation and was subsequently denied benefits. The
report also stated that when McDole applied for benefits in 2000,
the initial payments were applied to the outstanding debt from
his last overpayment. McDole was not convicted of any crime for
these two incidents of misrepresentation.
At trial, McDole did not attack these facts, and
conceded the aggravator without comment. In this appeal, McDole
still does not attack the factual basis of the aggravator. He
does not argue that the misrepresentations did not occur, or that
the prior incidents of misrepresentation and overpayment were not
similar to the current acts of misrepresentation and overpayment.
McDole merely objects to the procedures followed by the
sentencing judge, asserting that under Blakely, the State was
required to prove the aggravator to a jury beyond a reasonable
doubt.
Recently, we faced the question of whether a trial
courts finding of an aggravating factor constituted plain error.
In Haag v. State,20 we concluded that the question of whether a
victim was particularly vulnerable under statutory aggravating
factor AS 12.55.155(c)(5) required the finder of fact to assess
the extent of the victims physical incapacity and his ability to
resist a robbery in comparison with a typical robbery victim.21
Because those assessments turn on matters of degree, we ruled
that the identity of the fact finder and the burden of proof
could have affected the outcome, and that the sentencing judges
resolution of the aggravator using the clear and convincing
standard of proof constituted plain error.22 In contrast, in
Milligrock v. State,23 the superior court found aggravating factor
AS 12.55.155(c)(18)(A), that the defendant committed the offense
against a person residing in the same household as the defendant.24
Because the evidence that the defendant lived with the victim was
undisputed, we ruled that there was no reasonable possibility
that a jury would have ruled in the defendants favor on the
issue.25 As a result, we held that the procedural error regarding
the aggravator did not amount to plain error.26
The issue in this case is closer to the issue in
Milligrock than to the issue in Haag. The record contains
undisputed evidence that McDole has a history of criminal conduct
similar to the current offense. McDole does not contend that the
history is inaccurate, or that the previous incidents are not
similar to the current offense. The question of whether prior
acts of misrepresentation and the resulting overpayments occurred
is not a question of degree. Given the undisputed evidence in
the record, we conclude that there is no reasonable possibility
that a jury would find in McDoles favor on this issue.
Therefore, the procedural error with respect to aggravator
(c)(21) does not amount to plain error.
Finally, as the State points out, the jury convicted
McDole of thirty-one counts of unsworn falsification. At
sentencing, Judge Card confirmed that McDole had been convicted
of thirty-one counts, but the written judgment does not reflect
the jurys acquittal on count thirty-four. We direct the superior
court to correct this clerical error.
Conclusion
We affirm McDoles sentence with the exception that we
direct the superior court to amend the judgment to correct the
clerical error we discussed above.
_______________________________
1 AS 11.56.210 and AS 11.46.130(a)(1), respectively.
2 AS 11.46.980(c).
3 AS 12.55.145(a)(1)(A).
4 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
5 AS 12.55.155(c)(10) and (c)(21), respectively.
6 Emphasis added.
7 Saathoff v. State, 991 P.2d 1280, 1282 (Alaska App. 1999),
affd, 29 P.3d 236 (Alaska 2001).
8 Woodward v. State, 855 P.2d 423, 428 n.14 (Alaska App.
1993).
9 See AS 11.46.130(a)(1).
10 See, e.g., State v. Mullin, 778 P.2d 233, 236 (Alaska App.
1989).
11 State v. Lowrence, 858 P.2d 635, 638 (Alaska App. 1993).
12 __ U.S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
13 Booker, ___ U.S. at ___, 125 S.Ct. at 756.
14 Blakely, 542 U.S. at ___, 124 S.Ct. at 2537-38, 2542.
15 See id. at 2538.
16 Haag v. State, 117 P.3d 775, 782 (Alaska App. 2005).
17 Id. at 783.
18 Griffith v. Kennedy, 479 U.S. 314, 328, 107 S.Ct. 708, 716,
93 L.Ed.2d 649 (1987).
19 See Haag, 117 P.3d at 783.
20 117 P.3d 775 (Alaska App. 2005).
21 Haag, 117 P.3d at 785.
22 Id.
23 118 P.3d 11 (Alaska App. 2005).
24 Id. at 14.
25 Id. at 16.
26 Id.
