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State v. Kalmakoff (10/14/2005) ap-2015

State v. Kalmakoff (10/14/2005) ap-2015

                             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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