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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
| STATE OF ALASKA, | ) Court of Appeals No. A-8911 |
| ) Trial Court No. 3NA-03-086 CR | |
| Petitioner, | ) 3NA-02-001 CP |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| BYRON KALMAKOFF, | ) |
| ) | |
| Respondent. | ) [No. 2015- October 14, 2005] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Naknek, Fred Torrisi, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes and David W. M rquez,
Attorneys General, Juneau, for the
Petitioner. Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Alaska law allows a judge to waive juvenile
jurisdiction over certain juvenile offenders so that they may be
prosecuted as adults.1 The judge is to waive juvenile
jurisdiction if, after a hearing, the judge finds probable cause
to believe that the minor has committed offenses that would be
criminal if committed by an adult and that the minor was not
amenable to treatment as a juvenile.2
Kalmakoff argues that this procedure is
unconstitutional as a result of the United States Supreme Courts
decision in Blakely v. Washington.3 He contends that under
Blakely, the decision about whether he was amenable to treatment
as a juvenile had to be made by a jury, not by a judge; and the
jury had to make this finding under a standard of beyond a
reasonable doubt. We conclude that the Blakely decision does not
apply to the Alaska juvenile waiver procedure.
Factual and procedural background
In his hometown of Pilot Point, 15-year-old Byron
Kalmakoff murdered his aunt by shooting her twice in the head.
He also sexually assaulted her as she lay dying. The State
charged Kalmakoff as a juvenile with murder in the first degree,4
murder in the second degree,5 manslaughter,6 sexual assault in
the first degree,7 sexual assault in the second degree,8 theft in
the second degree,9 tampering with physical evidence,10 kidnaping,11
and burglary in the first degree.12
The State then filed a petition in the superior court
to waive juvenile jurisdiction over Kalmakoff so that he could be
prosecuted as an adult. Under Alaska law, had Kalmakoff been 16
years of age and charged with these offenses, he would have been
charged as an adult.13 But since he was under 16 years of age,
the State was required to initially charge him as a juvenile. In
order for the court to waive juvenile jurisdiction over
Kalmakoff, the judge had to find, following a hearing, that there
was probable cause for believing that Kalmakoff had committed
offenses that would be criminal if he was an adult and that he
was not amenable to treatment as a juvenile.14 Because Kalmakoffs
petition alleged that he had committed an unclassified felony,
the rebuttable presumption was that he was not amenable to
treatment as a juvenile.15 The statute placed upon Kalmakoff the
burden of proving that he was amenable to treatment as a
juvenile.16
The statute defines a minor who is not amenable to
treatment as one who probably cannot be rehabilitated by
treatment [as a juvenile] before reaching 20 years of age.17 It
states that the court may consider the seriousness of the offense
the minor is alleged to have committed, the minors history of
delinquency, the probable cause and the minors delinquent
behavior, and the facilities available to the department for
treating the minor in making this determination.18
Superior Court Judge Fred Torrisi conducted the waiver
hearing. Following the hearing, Judge Torrisi concluded that
Kalmakoff had not established that he was amenable to treatment
as a juvenile before reaching age 20. He granted the States
petition to waive juvenile jurisdiction. Kalmakoff was then
indicted for his crimes as an adult. A jury convicted Kalmakoff
of murder in the second degree, manslaughter, kidnaping, first-
degree sexual assault, second-degree sexual assault, second-
degree theft, and tampering with physical evidence.
Prior to sentencing, however, Kalmakoff filed a motion
to return jurisdiction to the juvenile court. Kalmakoff argued
that the juvenile waiver procedure authorized by the Alaska
statutes and applied by the superior court in his case violated
the United States Supreme Courts decision in Blakely v.
Washington.19 In State v. Gibbs,20 we described Blakely and its
predecessor, Apprendi v. New Jersey, as follows: In Apprendi
v. New Jersey,21 the United States Supreme Court held that, with
the exception of a defendants prior convictions, any [disputed]
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.22 In Blakely, the Supreme Court clarified
that, for purposes of Apprendi, the statutory maximum is the
maximum term of imprisonment that a judge may lawfully impose
solely on the basis of the facts reflected in a jury verdict or
admitted by the defendant.23 Kalmakoff argued that, under the
reasoning of the Apprendi and Blakely decisions, because the
waiver hearing exposed him to a greater potential penalty, the
court had no authority to waive him to adult court unless the
State proved, to a jury, beyond a reasonable doubt, that
Kalmakoff was not amenable to treatment as a juvenile.
Judge Torrisi granted Kalmakoffs motion. Judge Torrisi
recognized that the great weight of authority was contrary to his
position, but he concluded that the reasoning of Apprendi and
Blakely applied to juvenile waiver hearings. He accordingly
granted Kalmakoffs motion, vacated his prior order, and scheduled
a date for a jury to determine whether Kalmakoff was not amenable
to treatment as a juvenile. The State then petitioned us
to review Judge Torrisis order vacating the waiver of juvenile
jurisdiction. We now reverse Judge Torrisis order.
Why we reverse Judge Torrisis order
Had Kalmakoff been prosecuted as a juvenile, Kalmakoff
would have been subject to State jurisdiction only until he was
19 years old unless the State could show that State jurisdiction
for an additional year was in Kalmakoffs best interest and if
Kalmakoff consented to the additional year of supervision.24 But
as an adult, Kalmakoff faced a minimum sentence of imprisonment
of 10 years and a maximum sentence of 99 years for his conviction
of murder in the second degree alone.25 Therefore, Judge Torrisis
finding that Kalmakoff was not amenable to treatment as a
juvenile, which resulted in the waiver of juvenile jurisdiction,
greatly increased the maximum sentence which Kalmakoff faced.
Kalmakoff argues that under Apprendi and Blakely, the finding
that he was not amenable to treatment as a juvenile was a factual
finding which increased the maximum penalty which he faced. He
therefore maintains that the decision had to be made by a jury
applying a beyond a reasonable doubt standard.
All of the cases which the parties have cited and all
of the cases we have found are cases decided under Apprendi v.
New Jersey, Blakelys predecessor. Among these cases there is
support for Kalmakoffs contention only in a decision by the
Supreme Court of Massachusetts, Commonwealth v. Quincy Q.26 Under
Massachusetts law, a defendant faces more severe sentencing if he
is found to be a youthful offender. To show that a minor is a
youthful offender, the State must prove that the child was
between the ages of 14 and 17 years old when he committed the
alleged offense; that the offense was punishable by imprisonment
in state prison (that is, the offense was a felony); that the
child had previously been committed for being a delinquent; and
that the childs offense involved certain firearms violations or
that the offense involved the infliction or threat of serious
bodily harm.27 The court held that, under Apprendi, all of the
findings necessary to find that the defendant was a youthful
offender had to be found by a jury beyond a reasonable doubt.28
Although it is true that the Massachusetts procedure for waiving
juvenile jurisdiction differs from Alaskas (in that the
determination of whether to punish an offender as an adult is
made only after the trial is concluded), the reasoning of the
Massachusettss court supports Kalmakoffs argument.
However, all of the other decisions that we have found
conclude that the reasoning of Apprendi does not apply to
juvenile waiver proceedings.29 We note that one of these
decisions is from the Ninth Circuit Court of Appeals.30 We also
note that the Supreme Court of Kansas concluded that Apprendi did
not apply to juvenile waiver hearings and that the United States
Supreme Court denied certiorari.31 While this certainly does not
establish that the United States Supreme Court will not reach a
different conclusion following its decision in Blakely, the
overwhelming weight of authority at this time concludes that
Apprendi does not apply to juvenile waiver hearings. In general,
these courts have held that Apprendi does not apply to a juvenile
waiver proceeding because it is not a sentencing proceeding, but
rather a determination of the courts jurisdiction. And the
reasoning of these decisions that juvenile waiver hearings are
not sentencing proceedings and therefore not governed by
Apprendi, appears to foreshadow that courts will not arrive at a
different decision following Blakely.
We see no reason to depart from the great weight of
authority. The Alaska Legislature has established a rational
procedure for courts to use in determining when to waive juvenile
jurisdiction to allow the State to prosecute a juvenile as an
adult. We are to presume that a statute passed by the
legislature is constitutional.32 And the great weight of
authority holds that the procedure that the legislature has
established is constitutional. At oral argument, Kalmakoff
conceded that the State could constitutionally establish a
procedure where a juvenile would have been automatically
prosecuted as an adult or a procedure where a prosecutor could
determine whether to prosecute the juvenile as an adult. (This
decision would be similar to a decision which prosecutors make
routinely whether to prosecute an offense as a misdemeanor or a
felony.) Under either of these procedures, Kalmakoff would have
far fewer procedural protections, such as the right to have a
lawyer represent him and the right to present evidence at a
hearing in front of a judge, than he does under the current law.
Therefore, Kalmakoffs claim that the current system violates his
constitutional rights actually could result in far fewer
procedural protections for juveniles facing a waiver of juvenile
jurisdiction if the legislature chose to take those actions.
Given this concession, which is sound, the balance that the
legislature has chosen appears to us to be rational. We would
only change this balance if we were convinced that the United
States or Alaska Constitution required us to change it. Because
the great weight of authority supports the constitutionality of
the States juvenile waiver procedure, we uphold it.
We accordingly conclude that Judge Torrisi erred when
he entered his order vacating his prior decision waiving juvenile
jurisdiction over Kalmakoff. We remand the case to the superior
court for sentencing.
REVERSED and REMANDED.
_______________________________
1 AS 47.12.100.
2 Id.
3 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
4 AS 11.41.100(a)(1)(A).
5 AS 11.41.110(a)(1) or (2).
6 AS 11.41.120(a)(1).
7 AS 11.41.410(a)(1) and/or (2).
8 AS 11.41.420(a)(1).
9 AS 11.46.130(a)(2).
10 AS 11.56.610(a)(1) and/or (4).
11 AS 11.41.300(a)(1)(c).
12 AS 11.46.300(a)(1).
13 AS 47.12.030.
14 AS 47.12.100.
15 AS 47.12.100(c)(2)(A).
16 Id.
17 AS 47.12.100(b).
18 Id.
19 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
20 105 P.3d 145 (Alaska App. 2005).
21 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
22 Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.
23 Blakely, 542 U.S. at , 124 S.Ct. at 2537 (citations
omitted) (emphasis in original).
24 AS 47.12.160(c).
25 AS 12.55.125(b).
26 753 N.E.2d 781 (Mass. 2001).
27 Quincy Q, 753 N.E.2d at 789-90.
28 Id.
29 See United States v. Juvenile, 228 F.3d. 987, 990 (9th
Cir. 2000) (rejecting the claim that juvenile transfer increases
punishment and holding that it merely establishes a basis for
district court jurisdiction.); United States v. Miguel, 338 F.3d
995, 1004 (9th Cir. 2003) (by its own terms Apprendi does not
apply to [juvenile transfer proceedings] ... [because] the
transfer proceedings establish[] [only that] the district court
[has] jurisdiction over the defendant.); United States v. Phillip
A.B.L., 100 Fed. Appx. 687, 689 (9th Cir. 2004) (same); State v.
Rodriguez, 71 P.3d 919, 927-28 (Ariz. App. 2003) (holding that a
juvenile transfer statute is not a sentence enhancement scheme
and, therefore, does not implicate Apprendi... [because it] does
not subject [a] juvenile to enhanced punishment; it subjects the
juvenile to the adult criminal justice system.); People v.
Beltran, 765 N.E.2d 1071, 1076 (Ill. App. 2002) (Apprendi does
not apply because such hearings are dispositional, not
adjudicatory.); In re Matthew M., 780 N.E.2d 723, 733-34 (Ill.
App. 2002) (same); People v. Perea, 807 N.E.2d 26, 41-42 (Ill.
App. 2004) (same); State v. Jones, 47 P.3d 783, 797-98 (Kan.
2002) (Apprendi does not apply to juvenile waiver hearings
because they only determine which system will be appropriate for
a juvenile offender.), cert. denied, 537 U.S. 980, 123 S.Ct. 444,
154 L.Ed.2d 341 (2002); State v. Williams, 85 P.3d 697, 707 (Kan.
2004) (same); State v. Mays, 85 P.3d 1208, 1216 (Kan. 2004)
(same); State v. Hartpence, 42 P.3d 1197, 1205 (Kan. App. 2002)
(same); Caldwell v. Commonwealth, 133 S.W.3d 445, 452-53 (Ky.
2004) (in analyzing its own automatic transfer statute the court
held that Apprendi does not apply to juvenile proceedings.);
State v. Gonzales, 24 P.3d 776, 783-85 (N.M. App. 2001) (holding
that Apprendi does not apply to its own automatic transfer
statute); State v. H.O., 81 P.3d 883, 885 (Wash. App. 2003)
(Apprendi does not affect the burden of proof required in order
to decline juvenile jurisdiction over an underage offender);
State v. Oliver, 118 Wash. App. 1067, *3-4 (Wash. App. 2003)
(same) (unpublished opinion).
30 United States v. Miguel, 38 F.3d 995, 1004 (9th Cir.
2003).
31 Jones, 47 P.3d at 797-98.
32 Nason v. State, 102 P.3d 962, 964 (Alaska App. 2004)
(citation omitted).
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