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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MIKE SIMON, | ) |
| ) Court of Appeals No. A-8886 | |
| Appellant, | ) Trial Court No. 4BE-03-1745 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2012 October 7, 2005] |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Holly Handler, Assistant Public
Defender, Bethel, and Barbara K. Brink,
Public Defender, Anchorage, for the
Appellant. Lance Joanis, Assistant District
Attorney, Bethel, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Mike Simon sneaked into a womans house at night and
touched her genitals. For this conduct, Simon was charged with
two class B felonies: first-degree burglary and second-degree
sexual assault. The case was ultimately settled by a plea
agreement. Under the terms of this agreement, the State
dismissed the burglary charge and Simon agreed to plead no
contest to a reduced charge of third-degree sexual assault.
Third-degree sexual assault is a class C felony.1
Simon had four prior felony convictions (two felony assaults, a
burglary, and a felony escape). Because of this, Simon was a
third felony offender for purposes of Alaskas presumptive
sentencing laws,2 and he therefore faced a 3-year presumptive
term for his current offense.3
As part of his plea bargain with the State, Simon
stipulated to three aggravating factors under AS 12.55.155(c):
(c)(7) that one of his prior felonies was of a more serious
class than his current class C felony; (c)(8) that his criminal
history included aggravated or repeated instances of assaultive
behavior; and (c)(10) that the conduct involved in his current
offense was among the worst within the definition of the offense
(since Simon was factually guilty of a more serious crime).4
Because Simon stipulated to these aggravating factors,
the superior court was authorized to sentence Simon to any term
of imprisonment between the 3-year presumptive term and the 5-
year maximum term for a class C felony.5
At Simons sentencing hearing on August 8, 2004,
Superior Court Judge Dale O. Curda found that Simon was a worst
offender as that term has been defined in Alaska sentencing
decisions.6 Under those same appellate decisions, this worst
offender finding authorized Judge Curda to sentence Simon to the
maximum sentence, 5 years imprisonment. Judge Curda imposed this
sentence.
Simon now challenges his sentence on two grounds.
First, Simon contends that the superior court violated
his constitutional rights when the superior court found him to be
a worst offender for sentencing purposes without submitting this
issue to a jury. Simon argues that the superior courts action
violated his right to jury trial under the Sixth Amendment to the
United States Constitution, as construed in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Second, Simon argues that even if his right to jury
trial was not violated, Judge Curda was clearly mistaken when he
concluded that Simon should receive the maximum sentence of 5
years imprisonment.
The facts of Simons sentencing
The basic terms of Simons plea agreement with
the State are contained in the following notice that
the parties filed with the court:
NOTICE TO COURT
OF CRIMINAL RULE 11 AGREEMENT
COMES [sic] NOW the parties and gives
[sic] notice to the court of the following
Rule 11 Agreement ...
Defendant pleads [to] Sexual Assault in
the Third Degree (reduced from Sexual Assault
II). State dismisses other charge(s).
Sentence: Not contest Agg[ravator]s 7,
8, & 10. [Sentencing] open with a range of 3-
5 [years] to serve.
Simons sentencing took place on
August 8, 2004, some six weeks after the
United States Supreme Court issued Blakely v.
Washington, and the parties were aware of the
Blakely decision. At the sentencing hearing,
Simons attorney told Judge Curda that Simons
plea agreement with the State in particular,
Simons concession of aggravating factors
(c)(7), (c)(8), and (c)(10) had been
negotiated with full knowledge of Simons
potential right to a jury trial under
Blakely, and that the plea agreement called
for Simon to waive any potential right to a
jury trial on these three aggravators.
However, just before Simons
sentencing, the State gave notice that it
intended to propose one additional
aggravating factor: (c)(15) that, even
though Simon was a third felony offender for
presumptive sentencing purposes, he in fact
had more than two prior felony convictions.
Simons attorney told Judge Curda
that Aggravator 15 came as a surprise [to the
defense]. ... Theres no [plea] agreement
about that. She then told the judge that she
had spoken to other attorneys in her office
(the Public Defender Agency) about a possible
Blakely objection to aggravator (c)(15):
Defense Attorney: [Mr. Simon and I]
talked about Blakely, and we talked with
other people in the office about [a
defendants right to jury trial on the issue
of] prior convictions ... . And, you know,
theres some debate about whether Blakely
applies to prior convictions. ... Apprendi
[v. New Jersey] says [that the right to jury
trial] doesnt cover prior convictions, but
Blakely didnt specifically say whether it was
[incorporating that same exception].
The Court: Right, and [aggravator
(c)(7), dealing with] the prior felony being
more ... serious. ... I know that Mr.
Hamilton [another assistant public defender]
has a response to that one, too.
Defense Attorney: Right.
The Court: He disagrees with that. But
in any case, ... the main one here [that] Im
concerned about is [aggravator (c)(10) most
serious conduct], because that [one], I
think, clearly would be covered by Blakely.
Defense Attorney: Right.
The Court: ... But [Simon has] agreed
to that [one] as part of the [plea] agreement
here?
Defense Attorney: Right.
Following this exchange, the
defense attorney said nothing further of
substance regarding any of the four proposed
aggravators. In other words, even though the
defense attorney discussed the fact that it
might be possible to raise a Blakely
objection to aggravator (c)(15), she never
actually made such an objection.
A few moments later, Judge Curda
found that all four aggravators were proved:
(c)(7) that one of Simons prior felonies was
of a more serious class than his current
class C felony; (c)(8) that Simons criminal
history included aggravated or repeated
instances of assaultive behavior; (c)(10)
that the conduct underlying Simons current
offense was among the worst within the
definition of the offense; and (c)(15) that
Simon had more than two prior felony
convictions.
Later, toward the end of the
sentencing hearing, Judge Curda found that
Simon was a worst offender:
The Court: Although [Simon] doesnt have
any sexual assault-type charges on his
[prior] record, he does have an extensive
prior record that ... involve[s] four prior
felonies, including two felony assaults and
[an] escape and a ... burglary, in addition
to other ... misdemeanor assault convictions.
In [determining] if Mr. Simon is a worst
offender, ... the court looks at ... the
combination of the offense and ... the
offender himself, and the court can make a
finding of ... worst offender on [either or
both] of those bases.
[Simons current] offense itself wouldnt
[qualify] as a worst offense, although I do
agree ... that this is a particularly bad
offense, given the circumstances here,
[given] the fact that Mr. Simon ... could
have been [additionally] convicted [of]
burglary in the first degree for breaking
in[to] the [victims] house and committing the
sexual assault.
I do find that [Simon] is a worst
offender, based on the offense and [on] his
background. ... Mr. Simon [has been]
involved in criminal activity since 1978
[i.e., for twenty-six years]. He [is now] 46
[years old]. ... He does have past
failures, both on probation and parole. ...
[T]he court also notes that the prior
conviction ... was [of a] more serious [class
than Simons current offense], and ... hes got
[more than two] other felony convictions, and
the prior assaults in his background. In
addition, Im agreeing that this is among the
worst [conduct within the] definition of the
crime of sexual assault in the third degree.
So, for those reasons, my main goal here
is to isolate Mr. Simon ... . [T]he best
predictor of future behavior is past
behavior, and ... his past behavior has been
horrendous ... . [M]y main goal here is to
isolate Mr. Simon to protect the community.
I am going to ... give him a flat-time
sentence of 5 years, find[ing] him a worst
offender based on the reasons that Ive
articulated ... .
Simons argument that, under Blakely, he was entitled to
a jury trial on the question of whether he should
be classified as a worst offender (as that term
has been defined in Alaska sentencing decisions)
In this appeal, Simon argues that Judge Curda
violated his right to jury trial under the Sixth
Amendment when Judge Curda found (in the absence
of a jury verdict on this issue) that Simon was a
worst offender for sentencing purposes. However,
even though she was aware of Blakely, Simons
attorney raised no objection of any kind to the
judges finding that Simon was a worst offender.
Specifically, Simons attorney voiced no Blakely
objection when Judge Curda reviewed Simons record
and concluded, based on that record, that Simon
was a worst offender. Thus, if Simon is to
prevail in this appeal, he must show that the
challenged sentencing procedure constituted plain
error.
We conclude that Simon has failed to show
plain error for two discrete reasons.
First, to prove plain error, Simon must show
that his attorney had no tactical reason for
failing to object.7 Here, the record suggests
that Simons attorney had a good reason for failing
to raise a Blakely objection.
Simons attorney had negotiated a plea bargain
in which Simon expressly agreed that the superior court
could sentence him to any term of imprisonment between
the applicable presumptive term, 3 years, and the
maximum term allowed by law for his offense, 5 years.
But under the pertinent Alaska sentencing decisions,
Judge Curda was obliged to find that Simon was a worst
offender before the judge was authorized to impose this
maximum sentence of 5 years imprisonment.8 One could
therefore argue that, as part of the plea bargain, the
parties implicitly agreed that Judge Curda was
authorized to consider, and to rule on, the question of
whether Simon was a worst offender.
Because of this, Simons attorney might
reasonably foresee that if she raised a Blakely
objection to Judge Curdas ruling on the worst offender
question, there was a significant chance that the State
would seek rescission of the plea agreement. Thus, the
defense attorney had a tactical reason for refraining
from raising this objection and, for this reason,
Simon has failed to show plain error.
Second, turning to the potential merits of a
Blakely objection, we again conclude that Simon has
failed to show plain error. As we explained above,
Simon conceded three aggravating factors and failed to
object to a fourth aggravating factor. Under Alaskas
presumptive sentencing statutes as they existed before
the legislature amended them in the spring of 2005,9
the existence of any of these aggravating factors
authorized the superior court to impose a sentence of
imprisonment up to the 5-year maximum term for Simons
offense.10
It is true that, under the sentencing
decisions of the Alaska Supreme Court, Judge Curda was
obliged to find that Simon was a worst offender before
he imposed this 5-year maximum sentence. But this was
not a limitation imposed by the presumptive sentencing
statutes. Rather, it was an aspect of Alaska
sentencing law that pre-dated presumptive sentencing a
rule imposed by the supreme court to regulate trial
judges exercise of their sentencing discretion within
the range of sentences authorized by statute.
Decisions from other states suggest that
sentencing classifications such as worst offender are
not the type of factual issue covered by the Blakely
right to jury trial, but are instead a traditional
component of sentencing a legal assessment of the
significance of the proved facts of the defendants
conduct and background for purposes of exercising
sentencing discretion.
See, for example, State v. Hughes, 110 P.3d
192 (Wash. 2005), where the Washington Supreme Court
held that, once the operative facts of the case are
established by verdict or concession, Blakely left
intact the trial judges authority to determine whether
[the] facts alleged and found are sufficiently
substantial and compelling to warrant imposing an
exceptional sentence.11 The Washington court declared
that such a decision was a legal judgment which, unlike
factual determinations, can still be made by the trial
court.12
Accord, Young v. State, 826 N.E.2d 665, 668
(Ind. App. 2005) ([U]nder Blakely, a jury, and not a
judge, must make the initial factual determination as
to whether the victim was pregnant; alternatively, the
defendant may ... admit [this] fact or waive his or her
right to a jury trial on [this fact]. [But] then the
[sentencing] judge may consider and weigh [this]
circumstance, or not consider it, as he or she thinks
fit and in accordance with his or her discretion. The
jury ... does not decide whether the fact of [the
victims] pregnancy is aggravating; it only decides
whether the fact of pregnancy [is proved].)
See also Michael v. State, 115 P.3d 517, 519
(Alaska 2005) (suggesting that, under a given set of
facts, an appellate court should exercise de novo
review of a sentencing judges rulings on aggravating
and mitigating factors).
Alternatively, some states have held that,
once one or more aggravating factors are proved in
conformity with Blakely (thus establishing the
sentencing judges authority to impose a sentence within
a higher range), Blakely is satisfied and any further
fact-finding can be done by the sentencing judge. See
State v. Carre¢n, 116 P.3d 1192, 1193 (Ariz. 2005);
State v. Mart¡nez, 115 P.3d 618, 625-26 (Ariz. 2005);
People v. Black, 113 P.3d 534, 542-43; 29 Cal.Rptr.3d
740, 749-750 (Cal. 2005); L¢pez v. People, 113 P.3d
713, 731 (Colo. 2005); State v. G¢mez, 163 S.W.3d 632,
658-59 (lead opinion) & 665 (Anderson, J., concurring
in part and dissenting in part) (Tenn. 2005). But see
State v. Natale, 878 A.2d 724, 738-39 (N.J. 2005)
(rejecting this interpretation of Blakely).
We need not definitively decide these legal
questions. As we explained above, Simon did not raise
this jury trial issue in the superior court, and so the
precise question before us is whether Judge Curda
committed plain error when he made the worst offender
finding without submitting this issue to a jury.
We have just discussed several court
decisions indicating that a worst offender finding is
not covered by Blakely or (alternatively) that it is
not covered by Blakely if other aggravating factors
have already been proved in conformity with Blakely.
In support of his jury trial argument, Simon simply
cites Blakely and the case that preceded it, Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000). He does not discuss or even
mention any of the cases we have described here, nor
any other cases applying Apprendi or Blakely to the
legal issue presented in this case.
To be plain error, an error must be so
obvious that any competent judge or attorney would have
recognized it.13 If a claim of error is reasonably
debatable if reasonable judges could differ on what
the law requires then a claim of plain error fails.14
Given the existing cases in this area of law,
reasonable judges could certainly differ as to whether
Simon was entitled to a jury trial on the question of
whether he was a worst offender. Simon has failed to
show plain error.
For these reasons, we affirm Judge Curdas
finding that Simon was a worst offender for sentencing
purposes. Accordingly, Judge Curda could impose the
statutory maximum sentence of 5 years imprisonment.
Simons argument that his sentence of 5 years
imprisonment is too severe
Simon argues in the alternative that, even if
there was no Blakely violation, his sentence of 5 years
to serve is mistakenly severe. Before we address that
contention, we must first address the States argument
that Simon is barred from challenging the severity of
his sentence.
As we noted earlier, Simon and the State
filed a Notice to [the] Court that explained their plea
agreement. One paragraph of this notice described the
agreement with respect to Simons sentence:
Sentence: Not contest Agg[ravator]s 7,
8, & 10. [Sentencing] open with a range of 3-
5 [years] to serve.
Thus, the plea agreement document expressly
stated that the sentencing range in Simons
case was going to be 3 to 5 years to serve.
Under AS 12.55.120(a), a defendant
has no right to appeal a sentence if the
sentence was imposed in accordance with a
plea agreement ... that ... provided for
imposition of ... a sentence equal to or less
than a specified maximum sentence. Relying
on this statute, the State argues that Simon
has no right to appeal the severity of his
sentence because, according to the State,
Simon expressly agreed to a sentence equal to
or less than the 5-year statutory maximum for
his offense.
The States argument raises an issue
concerning the proper interpretation of the
plea agreement the contract between Simon
and the State. The quoted language could be
viewed as merely an acknowledgement that,
given Simons intention to plead guilty to a
class C felony, his status as a third felony
offender, and his intention to concede
aggravating factors, the applicable
sentencing range would (by law) be 3 to
5 years imprisonment. Conversely, the quoted
language could conceivably be viewed in the
manner suggested by the State i.e., viewed
as Simons express acquiescence in a sentence
of 3 to 5 years, and his implicit promise not
to contest whatever sentence the superior
court imposed, so long as that sentence did
not exceed the statutorily prescribed maximum
penalty for Simons offense (5 years
imprisonment).
When a provision of a contract is
ambiguous and reasonably susceptible of two
differing interpretations, a court will
normally seek testimony concerning the
parties understanding of the provision at the
time the contract was made, and will examine
both case law interpreting similar language
and relevant extrinsic evidence concerning
the interpretation of the disputed language
within the relevant community of contracting
parties.15 In this case, however, we
conclude as a matter of public policy that we
must reject the States suggested
interpretation of the plea agreement.
The Indiana Court of Appeals
confronted a similar case in Wilkie v. State,
813 N.E.2d 794 (Ind. App. 2004). The
defendant in Wilkie signed a plea agreement
in which he acknowledged his understanding of
the range of sentences that the sentencing
judge might, by law, impose. The government
argued that Wilkies act of signing this
document should be interpreted as (1) Wilkies
concession that any sentence up to the
maximum term would be appropriate and
(2) Wilkies waiver of his right to appeal,
even if a maximum sentence was imposed.16
The Indiana court refused to interpret the
document that way:
[I]f a defendant signs a plea agreement in
which he agrees to a specific term of years,
or to a sentencing range other than the range
authorized by statute, he will not be able to
claim thereafter that a sentence imposed
consistent with the agreement is
inappropriate. ... But we reject the idea
that a defendant can agree to be sentenced in
accordance with the statutory range
applicable to his offense and, as a result of
that agreement, be barred from [challenging]
the trial courts decision to impose the
maximum sentence ... .
Wilkie, 813 N.E.2d at 804.
We agree that this is the proper
rule to follow. We would view the matter
differently if the record showed that Simon
and the State had bargained for a sentencing
range narrower than the range that would
otherwise apply to Simons case, or if Simon
had expressly waived his right to appeal his
sentence. But here, as in Wilkie, the only
thing that lends any credence to the States
argument is the fact that the plea agreement
contains language describing the sentencing
range anticipated by the parties. This
sentencing range was simply the legal
consequence of Simons decision to plead
guilty to third-degree sexual assault (given
the fact that Simon was a third felony
offender, and given the fact that he was
conceding aggravating factors).
In other words, the record in
Simons case gives no indication that the
disputed clause of the plea agreement
constituted anything more than an
acknowledgement of the sentencing range
provided by law for any defendant in Simons
situation. In these circumstances, we hold
that this language must not be interpreted as
a waiver of Simons appeal rights.
We therefore turn to the merits of
Simons contention that a sentence of 5 years
to serve is inappropriately severe.
As explained above, when Judge
Curda selected this 5-year sentence, he
focused primarily on Simons long history of
criminal offenses (four felonies, plus
assaultive misdemeanors), Simons violations
of probation and parole, the particularly bad
nature of the offense, and the fact that
Simon was no longer a youthful offender.
Noting that Simons past conduct was probably
the best predictor of his future conduct,
Judge Curda concluded that the primary
sentencing goal in Simons case should be
isolating Simon to protect the community from
future crimes.
On appeal, Simon argues that the
record does not prove that he is beyond all
rehabilitative efforts, and he contends that
Judge Curda failed to adequately address the
sentencing goal of rehabilitation. But given
Simons record, and given Simons conduct in
the current case (conduct that actually
comprised two class B felonies: second-
degree sexual assault and first-degree
burglary), Judge Curda could reasonably
conclude that hopes for Simons rehabilitation
had to be subordinated to the immediate need
to protect the public from Simons repeated
criminal behavior.
The question is whether Judge
Curdas sentencing decision is clearly
mistaken.17 Having independently reviewed
the record in Simons case, we do not find
that the judges decision is clearly mistaken.
Accordingly, we uphold Simons sentence of 5
years to serve.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1AS 11.41.425(b).
2AS 12.55.185(15).
3Former AS 12.55.125(e)(2) (prior to its amendment in 2005).
4See Benboe v. State, 698 P.2d 1230, 1232 (Alaska App.
1985).
5Former AS 12.55.125(e) and former AS 12.55.155(a)(1) (both
prior to their amendment in 2005).
6See Hintz v. State, 627 P.2d 207, 210 (Alaska 1981); State
v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Collins v. State,
778 P.2d 1171, 1175 (Alaska App. 1989).
7See Jackson v. American Equity Ins. Co., 90 P.3d 136, 144
(Alaska 2004); Henry v. State, 861 P.2d 582, 589
(Alaska App. 1993); Massey v. State, 771 P.2d 448, 453
(Alaska App. 1989); Potts v. State, 712 P.2d 385, 394
n.11 (Alaska App. 1985).
8See supra, note 6.
9See SLA 2005, ch. 2 (effective March 23, 2005).
10Former AS 12.55.155(a)(1) (version before the 2005
amendment).
11Hughes, 110 P.3d at 202.
12Id., relying on Blakely, 124 S.Ct. at 2538 n. 8.
13Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989);
Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983);
Marrone v. State, 653 P.2d 672, 675-76 (Alaska App. 1982).
14Heaps v. State, 30 P.3d 109, 116 (Alaska App. 2001);
Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
15Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004
(Alaska 2004), quoting Anchorage v. Gentile, 922 P.2d
248, 256 (Alaska 1996).
16Wilkie, 813 N.E.2d at 803.
17See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to uphold a sentencing decision
unless the sentence is clearly mistaken).
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