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opinion is published in the Pacific Reporter. Readers
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| AJANI SNELLING, | ) | |
| ) Court of Appeals No. A-8950 Appellant, | ) Trial Court No. 4FA-04-422 CR | |
| ) | ||
| v. | ) | |
| ) O P I N I O N | ||
| STATE OF ALASKA, | ) | |
| ) | ||
| Appellee. | ) [No. 2018 November 10, 2005] | |
| ) | ||
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge.
Appearances: James H. Cannon, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In this appeal, we are asked to decide whether a
defendants Sixth Amendment right to jury trial extends to two of
the statutory aggravating factors codified in AS 12.55.155(c):
(c)(7), which applies if a defendant has a prior felony
conviction that is a more serious class of offense than the
defendants current felony; and (c)(20), which applies if the
defendant committed the current felony while on probation or
parole from a prior felony conviction. The defendant in this
appeal argues that, under the United States Supreme Courts
decision in Blakely v. Washington,1 the Sixth Amendment
guarantees a right to jury trial with respect to both of these
aggravating factors.
With respect to aggravator (c)(7), we hold that, so
long as the fact of the prior felony conviction is not disputed,
it is purely a question of law whether a defendants prior felony
is a more serious class of offense than the defendants current
felony. Accordingly, a sentencing judge can lawfully make this
determination, and the defendant has no right to a jury trial on
this issue.
It is a closer question whether defendants have a right
to jury trial with respect to aggravator (c)(20). However, we
need not decide this issue. It is undisputed that the defendant
in this appeal was on felony probation when he committed his
current felony. Thus, even if he was entitled to a jury trial on
aggravator (c)(20), any error was harmless beyond a reasonable
doubt.
Factual and procedural background
Two Alaska State Troopers stopped Ajani
Snelling for a traffic violation. During this stop,
the troopers frisked Snelling and found nearly ten
grams of cocaine packaged in several packets. The
grand jury charged Snelling with one count of third-
degree misconduct involving a controlled substance
(possession of cocaine with intent to distribute).2
Snelling moved to suppress the evidence
seized by the troopers. Superior Court Judge Richard
D. Savell granted Snellings motion in part. After this
ruling, the parties reached a plea agreement. The
State filed an information reducing the charge to
fourth-degree misconduct involving a controlled
substance (possession of cocaine without intent to
distribute).3 Snelling agreed to plead no contest to
this reduced charge, giving up his right to appeal the
partial denial of his suppression motion. Snelling
further agreed that he had a prior felony conviction a
federal conviction for bank robbery and that, as a
result of this prior felony conviction, he faced
presumptive sentencing as a second felony offender.
Snelling entered his no contest plea on June
1, 2004. Three weeks later, on June 24, the United
States Supreme Court decided Blakely v. Washington.
Blakely extended a defendants right to jury trial under
the Sixth Amendment to many factual issues that had
previously been decided by sentencing judges. The
Supreme Court recently restated this right to jury
trial in United States v. Booker4: 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.5
Snellings current offense is a class C
felony.6 Because of his prior federal felony
conviction, Snelling was a second felony offender for
presumptive sentencing purposes, and he faced a 2-year
presumptive term.7 To establish the superior courts
authority to impose a sentence exceeding this 2-year
presumptive term, the State relied on three of the
aggravating factors codified in AS 12.55.155(c):
(c)(7) that Snellings federal felony was a more
serious class of felony than his current offense;
(c)(20) that Snelling was on probation from that prior
federal felony when he committed the current offense;
and (c)(10) that Snellings conduct in committing his
present offense was among the most serious within the
definition of that offense.
At sentencing, Snelling objected to the
superior courts consideration of any of these
aggravating factors. He argued that, under Blakely, he
had a right to a jury trial on all of these
aggravators.
With respect to aggravator (c)(10) (conduct
among the most serious within the definition of the
offense), Judge Savell agreed that Snelling had a right
to a jury trial. Following this ruling, the State
withdrew this aggravator. This left aggravators (c)(7)
and (c)(20).
With respect to aggravator (c)(7) (that
Snellings prior felony was a more serious class of
offense than his current felony), Judge Savell rejected
Snellings jury trial argument. The judge concluded
that, as a matter of law, robbery was a more serious
class of felony than possession of cocaine.
Judge Savell expressed uncertainty as to
whether Snelling was entitled to a jury trial on
aggravator (c)(20) (that Snelling was on felony
probation or parole when he committed his current
offense). But despite this uncertainty, Judge Savell
did not offer Snelling a jury trial on this issue.
Moreover, Judge Savells sentencing remarks are
ambiguous as to whether he relied on aggravator (c)(20)
when he decided Snellings sentence, and the State
asserts that he found and relied on aggravator (c)(20).
Although Judge Savell did not specifically mention
aggravator (c)(20), he did refer to the fact that
Snelling was on felony probation when he committed the
present crime, and he further noted that Snellings
probation apparently had not rehabilitated him or
deterred him from committing new crimes.
Ultimately, Judge Savell increased Snellings
term of imprisonment from the presumptive 2-year term
to an enhanced sentence of 3 years to serve.
When the fact of a prior felony conviction is not
disputed, the question of whether that prior conviction
is a more serious class of offense than the defendants
current felony is an issue of law to be decided by the
sentencing judge, not an issue of fact to be decided by
a jury
As explained above, Snelling concedes that he
has a prior federal conviction for bank robbery. Under
AS 12.55.145(a)(1)(B), a defendants criminal conviction
in another jurisdiction will count as a prior felony
for purposes of Alaskas presumptive sentencing laws if
that prior offense has elements similar to those of a
felony defined [by] Alaska law at the time the offense
was committed.
In their briefs, the parties refer to
Snellings federal conviction as armed robbery, and
Snellings federal criminal judgment likewise refers to
the crime by this title. But the statute under which
Snelling was convicted 18 U.S.C. 2113(a) seemingly
does not require proof that the defendant was armed.
This statute states, in pertinent part:
(a) Whoever, by force and violence, or
by intimidation, takes, or attempts to take,
from the person or presence of another, ...
any property or money or any other thing of
value belonging to, or in the care ... of,
any bank ... [s]hall be fined ... or
imprisoned not more than twenty years, or
both.
Nevertheless, it is a moot point
whether Snellings conviction for bank robbery
should be categorized as an armed robbery.
Under Alaska law, robbery in any form is
either a class A felony or a class B felony.
Robbery is a class A felony (first-degree
robbery) if the offender is armed or causes
serious physical injury to another person.
Any other robbery is a class B felony (second-
degree robbery).8
In contrast, Snellings present
offense fourth-degree controlled substance
misconduct is a class C felony.9 Thus, even
if Snellings federal bank robbery conviction
did not require proof that he carried or used
a weapon, Snellings act of bank robbery would
be a more serious class of felony than his
current offense. Accordingly, Judge Savell
could properly conclude that aggravator
(c)(7) applied to Snellings sentencing.
The right to jury trial recognized
in Blakely does not apply to this
determination because, leaving aside the
underlying fact of Snellings federal
conviction (a fact that Snelling conceded),
there were no factual issues to be resolved.
Under Alaska law, robbery in any form is a
more serious class of felony than possession
of cocaine without intent to distribute.
Accordingly, Judge Savells ruling on
aggravator (c)(7) rested on an application of
the law to undisputed facts. For these
reasons, we reject Snellings claim that he
was entitled to a jury trial with regard to
aggravator (c)(7).
Even if Snelling was entitled to a jury trial with
respect to aggravator (c)(20), any error was harmless
beyond a reasonable doubt
As we explained earlier, it is unclear from
Judge Savells sentencing remarks whether he found and
relied on aggravator (c)(20) (the fact that Snelling
was on felony probation when he committed his current
offense).
Snelling argues that he was entitled to a
jury trial on this issue. The State contends, however,
that aggravator (c)(20) is another issue that falls
within Blakelys prior conviction exception. The State
points out that Snellings federal criminal judgment was
issued in July 1997, that this judgment declares that
Snelling would spend 78 months in prison, and that the
judgment further declares that Snelling would be on
probation for 3 years following his release from
prison. Based on this, the State argues that Snellings
federal judgment, standing by itself, establishes that
Snelling was on felony probation when he committed his
current offense in early February 2004.
We need not resolve the issue of whether
aggravator (c)(20) falls within the Blakely exception
for prior convictions. Although Snelling argued in the
superior court that he was entitled to a jury trial on
this issue, Snelling never asserted that the wording of
his federal criminal judgment failed to accurately
reflect his sentence, nor did he assert that he had
somehow obtained an early release from federal
supervision, so that he was no longer on felony
probation in February 2004.
Because it is undisputed that Snelling was a
felony probationer when he committed his current
offense, any error in failing to give him a jury trial
on this issue is harmless beyond a reasonable doubt.10
Conclusion
The judgment of the superior court is
AFFIRMED.
_______________________________
1 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
2 AS 11.71.030(a)(1) (possession of cocaine with intent to
deliver).
3 AS 11.71.040(a)(1) (possession of cocaine).
4 __ U.S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
5 Booker, ___ U.S. at ___, 125 S.Ct. at 756.
6 AS 11.71.040(d).
7 Former AS 12.55.125(e)(1) (in its pre-March 2005 form).
8 See AS 11.41.500(b) (first-degree robbery); AS 11.41.510(b)
(second-degree robbery).
9 AS 11.71.040(d).
10 See Johnson v. United States, 520 U.S. 461, 467-68, 117
S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997); United States v.
Cotton, 535 U.S. 625, 633-34, 122 S.Ct. 1781, 1786-87, 152
L.Ed.2d 860 (2002); Milligrock v. State, 118 P.3d 11, 16-17
(Alaska App. 2005); Ned v. State, Alaska App. Opinion No.
2003 at 9-13 (Aug. 19, 2005), 2005 WL 1994430 at *4-6.
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