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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| NORMAN L. VANDERGRIFF, | ) |
| ) Court of Appeals No. A-8946 | |
| Appellant, | ) Trial Court No. 1PE-S04-14 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2022 December 16, 2005] |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Petersburg, Michael A.
Thompson, Judge.
Appearances: Eric Hedland, Assistant Public
Defender, Juneau, and Barbara K. Brink,
Public Defender, Anchorage, for the
Appellant. Timothy W. Terrell, 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.
MANNHEIMER, Judge, concurring.
From December 2003 through February 2004, Norman L.
Vandergriff burglarized remote residences outside of Petersburg.
He stole several items including boats, an outboard motor, and
firearms. He forged a check made payable to himself and
purportedly signed by one of the victims. The grand jury
indicted Vandergriff on nine felony counts.
The parties reached a plea agreement that called for
Vandergriff to plead to three class C felonies: second-degree
theft; second-degree forgery; and second-degree burglary.1 There
was no agreement on the sentence to be imposed. Under the
sentencing law that applied to Vandergriffs case, he faced a
presumptive 3-year term on each count because he had five prior
felony convictions.2
The superior court imposed a composite 9-year term with
3 years suspended, a net 6-year term to serve. In this sentence
appeal, Vandergriff advances several reasons why the superior
court erred by imposing this sentence. We reject each claim and
affirm the judgment of the superior court.
Background facts and proceedings
The grand jury indicted Vandergriff on four counts of
second-degree theft, one count of second-degree forgery, two
counts of first-degree burglary,3 and two counts of first-degree
vehicle theft.4 These charges arose after an investigation by
the Alaska State Troopers showed that from December 2003 through
February 2004, Vandergriff broke into two remote cabins near
Petersburg, stole three firearms, stole two boats, stole an
outboard motor, and forged a check bearing the purported
signature of one of the victims.
The State and Vandergriff negotiated a plea agreement.
Vandergriff agreed to plead to three counts: second-degree theft;
second-degree burglary; and second-degree forgery. The State
agreed not to pursue any aggravating factors, and the parties
agreed not to restrict the courts power to impose the sentences
on any count concurrent with or consecutive to any other count.
Vandergriff had five prior felony convictions. His
first felony conviction occurred in 1970 in Virginia. His most
recent felony conviction occurred in 2003 in Florida. Two of the
five convictions were burglary charges; three were forgery
charges. Superior Court Judge Michael A. Thompson
imposed a 3-year term for second-degree theft, a consecutive 3-
year term for second-degree burglary, and a consecutive 3-year
term, all suspended, for forgery. Thus, Judge Thompson imposed a
composite 9-year term with 3 years suspended. Vandergriff
appeals.
Discussion
Does Blakely v. Washington restrict a sentencing courts
authority to impose sentences consecutively?
Vandergriff argues that the United States Supreme
Courts decision in Blakely v. Washington5 restricts a sentencing
judges authority to impose consecutive sentences exceeding the
prescribed presumptive term for the defendants most serious
offense or the maximum term for the defendants most serious
offense. But under former AS 12.55.025(e) and (g), a sentencing
judges authority to impose consecutive sentences did not require
proof of aggravating factors or other special factual
circumstances.
Blakely rests on a principle that the Supreme Court
recently repeated in United States v. Booker:6 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.7
Vandergriff argues that any fact-finding by the
superior court that justified the composite term exceeding the 3-
year presumptive term or the 5-year maximum term is governed by
Blakely.
Except for prior convictions, Blakely declares that
when a judges sentencing authority rests on facts not established
by a guilty verdict or by the defendants plea or by the
defendants express concession, the facts must be proved to a jury
beyond a reasonable doubt.8 But Judge Thompsons authority to
impose consecutive sentences did not depend on proof of
additional facts. His authority to impose consecutive sentences
was governed by former AS 12.55.025(e) and (g).9 Except for
exceptions not applicable here, those subsections gave Judge
Thompson the discretion to impose the sentences consecutively or
concurrently.
We recently addressed the application of Blakely to
consecutive sentencing in Edmonds v. State.10 We held that
Blakely did not limit a judges authority to impose consecutive
sentences with the exception of one potential issue that we did
not decide in Edmonds case: Is the fact finding called for by
the Neal-Mutschler rule subject to the procedural requirements of
Blakely? The Neal-Mutschler rule is a common-law sentencing rule
announced by our supreme court; before a sentencing judge imposes
consecutive sentences that total more than the maximum sentence
for a defendants most serious offense, the judge must expressly
find that the total sentence is necessary to protect the
public.11
Judge Thompson was aware of the Neal-Mutschler rule; he
discussed it during sentencing and elected to impose a term
greater than the 5-year maximum for a class C felony in order to
protect the public. Vandergriff mentions the rule in his
argument, but he does not cite any cases that discuss whether
Blakely applies to the decision to impose sentences
consecutively. We mentioned several of those cases in Edmonds, a
decision we issued after Vandergriff filed his brief in this
case.12
In Apprendi and Blakely, a judges authority to impose
consecutive sentencing was not an issue because Apprendi received
concurrent sentences and Blakely was sentenced for a single
crime.13 In Blakely, the court focused on the division of
authority between a judge and a jury:
[T]he Sixth Amendment by its terms is not a
limitation on judicial power, but a
reservation of jury power. It limits
judicial power only to the extent that the
claimed judicial power infringes on the
province of the jury. Indeterminate
sentencing does not do so. It increases
judicial discretion, to be sure, but not at
the expense of the jurys traditional function
of finding the facts essential to lawful
imposition of the penalty. Of course
indeterminate schemes involve judicial
factfinding, in that a judge (like a parole
board) may implicitly rule on those facts he
deems important to the exercise of his
sentencing discretion. But the facts do not
pertain to whether the defendant has a legal
right to a lesser sentence and that makes
all the difference insofar as judicial
impingement upon the traditional role of the
jury is concerned.[14]
The facts that a jury finds are not essential to the lawful
imposition of consecutive sentencing. When a judge is sentencing
a defendant on more than one conviction in a single judgment,
whether the multiple convictions arise from guilty verdicts from
a jury trial or from more than one guilty or no contest plea, the
jury retains its power to find the facts underlying each count
and underlying the statutory maximum that a judge has authority
to impose on any single count. In the usual case, AS
12.55.127(b) permits concurrent sentencing, but in some
circumstances, on the basis of the verdicts alone, AS
12.55.127(c) mandates minimum consecutive sentencing depending on
the crime.
Furthermore, developing case law supports the
conclusion that a sentencing judges traditional classification of
facts about a defendants background and conduct used to impose a
term authorized by a verdict, plea, or express concession are not
covered by the Blakely right to jury trial.15
Again, the Neal-Mutschler rule is a judicially created
common-law rule that guides a sentencing judges analysis when
imposing consecutive sentencing. The rule directs a judge to
explain the rationale for imposing a term to serve greater than
the maximum term for the single most serious offense. This
explanation promotes the legislatures mandate to eliminate
unjustified disparity and attain reasonable uniformity in
sentencing because the explanation enables appellate sentencing
review.16 The rule does not increase the potential sentence a
defendant may receive beyond the statutory range of potential
sentences already specified by the legislature. Instead, the
rule announces that trial judges operating within the range of
potential penalties specified by the legislature should exercise
their discretion to impose consecutive sentencing beyond the
maximum penalty for the most serious offense only after a careful
examination of the sentencing criteria.
Considering all the above, we conclude that, when a
sentencing judge applying the Neal-Mutschler rule assesses
whether a composite term to serve exceeding the maximum term for
the defendants single most serious crime is necessary to protect
the public, the judge is not required to submit this issue to a
jury.
Does a judge applying the Neal-Mutschler rule have the
authority to protect the public from potential
property crimes?
Vandergriff argues that Judge Thompson improperly
applied the Neal-Mutschler rule. Vandergriff claims, without
citation to authority, that when a court speaks of protecting the
public, it generally means protecting the public against violent
crimes. Vandergriff argues that a sentence in excess of the
maximum term for the most serious offense is not justified
because Vandergriffs present offenses and past offenses were
property offenses.
This is not the rule illustrated by our case law. For
example, in OBrannon v. State,17 we affirmed the superior courts
sentence of 1500 days imprisonment with 1125 days suspended on
eighteen counts of criminal contempt, which had a maximum penalty
of 180 days imprisonment.18 And in Montes v. State,19 we
affirmed the superior courts imposition of a composite 7-year
term, a term that exceeded the 5-year maximum term for each of
the five counts of second-degree theft for which Montes had been
convicted. We concluded that the superior court imposed the term
to protect the public.20
We conclude that Judge Thompson properly applied the
Neal-Mutschler rule to impose a composite term that exceeds the
maximum 5-year term for Vandergriffs individual crimes.
Was Vandergriff denied his right of confrontation?
Without citation to any authority, Vandergriff asserts
that his right of confrontation was violated because Judge
Thompson considered non-testimonial statements of community
members.
But a sentencing court may consider statements alleging
other misconduct by a defendant unless the defendant takes the
stand, enters a testimonial denial of the misconduct, and submits
to cross-examination.21 Vandergriff did not do this.
Is Vandergriffs sentence excessive?
Finally, Vandergriff argues that his sentence is
excessive especially considering the fact that most of his prior
convictions were over twenty years old. Vandergriff also points
out that he did not have a history of substance abuse and that he
was convicted of property crimes. But after Judge Thompson
considered Vandergriffs personal history and his present
offenses, Judge Thompson reviewed the sentencing criteria and
concluded that a 6-year term to serve was warranted. From our
review of the record, we conclude that Vandergriffs sentence is
not clearly mistaken.22
Conclusion
Vandergriffs sentence is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to explain my analysis of the
Blakely issue presented in this appeal.
In Neal v. State, 628 P.2d 19 (Alaska 1981), the Alaska
Supreme Court announced a rule that governs consecutive
sentencing in this state. The supreme court held that when a
judge sentences a defendant for two or more crimes, and when the
law authorizes the judge to impose consecutive sentences for
these crimes, the judge should not employ this power of
consecutive sentencing to impose a composite sentence that
exceeds the maximum term of imprisonment for the defendants most
serious offense unless the judge makes a formal finding that
confinement for [this composite] term is necessary to protect the
public. Neal, 628 P.2d at 21.
Vandergriffs appeal presents the question of whether
the Sixth Amendment right to jury trial, as construed by the
United States Supreme Court in Apprendi v. New Jersey, Blakely v.
Washington, and United States v. Booker, applies to the
sentencing finding required by Neal. I conclude that the answer
to this question is no.
It is difficult to write a single paragraph that
encapsulates the Supreme Courts holdings in Apprendi, Blakely,
and Booker without any ambiguity. However, the basic principle
behind Apprendi, Blakely, and Booker is to preserve the right of
jury trial in the face of legislative attempts to divide offenses
into elements (facts to be proved at trial) and sentencing
factors (facts to be proved at the sentencing hearing).
Apprendi, Blakely, and Booker hold that when the maximum
punishment to which a defendant can be subjected varies according
to the defendants degree of offense, a defendant has the right to
demand that a jury decide their degree of offense, and the right
to demand that the factors which distinguish one degree of
offense from another be proved beyond a reasonable doubt.
The Neal rule does not involve this legal principle.
Rather, the Neal rule governs a sentencing judges exercise of
discretion when the judge decides whether to make a defendants
sentences for two or more crimes consecutive or concurrent. This
kind of decision has never been made by juries; it has always
been entrusted to judges. The decision to impose consecutive
versus concurrent sentences is made only after the defendants
guilt and the corresponding maximum punishment for each offense
have been determined by trial or by plea. While the judges
decision may involve an assessment of the facts of the defendants
particular offenses, the judges decision ultimately rests on the
answers to broader questions: the underlying causes of the
defendants criminal behavior, the defendants likelihood of
recidivism, and the defendants amenability to rehabilitative
efforts. These questions have traditionally been answered by a
sentencing judge rather than a jury.
Accordingly, I conclude that the Sixth Amendment right
to jury trial (and to proof beyond a reasonable doubt) does not
apply to the Neal sentencing finding.
The argument that can be made in favor of Vandergriffs
position
Although I ultimately reject Vandergriffs
Sixth Amendment argument, I acknowledge that his
contention is reasonably debatable. The Alaska Supreme
Courts decision in Neal declares that, absent an
express finding that the protection of the public
demands a longer sentence, the maximum sentence for the
defendants single most serious crime represents a
ceiling on a sentencing judges statutory authority to
impose consecutive sentences. At first blush, this
looks like the kind of sentencing scheme that was at
issue in Blakely v. Washington.1
The problem presented in Blakely was that
Washington law provided a technical maximum sentence
for Blakelys crime, but Blakelys sentencing judge had
no authority to impose that maximum sentence unless the
judge found certain aggravating factors. The United
States Supreme Court held that Blakelys true maximum
sentence (for Sixth Amendment purposes) was the lesser
sentence that represented the ceiling on the judges
sentencing authority in the absence of aggravating
factors.
Vandergriff and other similarly situated
defendants might plausibly argue that Neal establishes
a similar sentencing scheme governing consecutive
sentencing in Alaska. As we recently noted in Edmonds
v. State, a sentencing judge in Alaska has the
authority (sometimes the duty) to impose consecutive
sentences for a defendants crimes.2 But Neal states
that the maximum sentence for the defendants single
most serious crime represents a limit on the judges
power to impose consecutive sentences, a ceiling that
the judge can not exceed unless the judge makes a
particular finding (that a greater sentence is required
to protect the public).
It is true, as Judge Stewarts majority
opinion points out, that the Neal rule is a common-law
rule that is, a court-made rule rather than a
legislative enactment. But this fact does not
necessarily resolve Vandergriffs Blakely claim.
In United States v. Booker,3 the Supreme
Court confronted the question of whether the Blakely
right to jury trial applied to the findings of fact
that determined a defendants sentencing range under the
federal sentencing guidelines. These guidelines were
promulgated by the independent Federal Sentencing
Commission, a non-legislative agency that Congress
placed in the judicial branch of government.4 In
Booker, the government argued that Blakely did not
apply to the sentencing guidelines because the
Guidelines were promulgated by a commission rather than
the Legislature.5 The Supreme Court flatly rejected
this argument:
In our judgment[,] the fact that the
Guidelines were promulgated by the Sentencing
Commission, rather than Congress, lacks
constitutional significance. In order to
impose [increased] sentences under the
Guidelines, ... judges [are] required to find
[some] additional fact, such as drug quantity
[or the infliction of] serious bodily injury
... . [D]efendants ... face significantly
higher sentences ... because a judge [finds]
true by a preponderance of the evidence a
fact that was never submitted to the jury.
[The constitutional flaw in this procedure is
the same, regardless] of whether Congress or
a Sentencing Commission concluded that a
particular fact must be proved in order to
sentence a defendant within a particular
range ... .
Booker, 543 U.S. at __, 125 S.Ct. at 752.
The Supreme Court acknowledged
that, in Apprendi v. New Jersey,6
it had declared that the right to jury trial
applied to findings of fact that increased
the prescribed statutory maximum [sentence].7
But the Court explained that it had used the
word statutory because the Apprendi case had
dealt with a sentencing statute. The Court
cautioned that, for Sixth Amendment purposes,
the form in which a sentencing rule is
promulgated is not determinative of a
defendants right to jury trial on the
underlying facts which trigger that
sentencing rule:
More important than the language used in
our holding in Apprendi are the principles we
sought to vindicate. ... The Framers of the
Constitution understood the threat of
judicial despotism that could arise from
arbitrary punishments upon arbitrary
convictions without the benefit of a jury in
criminal cases. ... Regardless of whether
the legal basis of the [sentencing]
accusation is in a statute or in guidelines
promulgated by an independent commission, the
principles behind the jury trial right are
equally applicable.
Booker, 543 U.S. at __, 125 S.Ct. at 753.
This insistence on the primacy of
substance over form echoes the Supreme Courts
holding in Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002), where the
Court declared, If a State makes an increase
in a defendants authorized punishment
contingent on the finding of a fact, that
fact no matter how the State labels it must
be found by a jury beyond a reasonable
doubt.8
Based on what the Supreme Court
said in Booker and Ring, we can not reject
Vandergriffs Blakely claim by merely noting
that the Neal rule was made by our supreme
court rather than by our legislature.
Instead, we must decide whether the
sentencing finding required by Neal is the
same sort of finding that was at issue in
Apprendi, Blakely, and Booker. To make that
decision, it is necessary to examine the
principle underlying the decisions in
Apprendi, Blakely, and Booker, and then
assess whether that principle is violated
when a sentencing court makes the finding
required by Neal.
The principle underlying Apprendi, Blakely, and Booker:
preserving the right to jury trial in the face of
modern determinate sentencing laws
In Apprendi v. New Jersey, the Supreme Court
assessed the constitutionality of a provision of state
law (New Jerseys hate crime law) which increased the
maximum sentence for various offenses. The defendant
in Apprendi was convicted of possessing a firearm for
an unlawful purpose. The normal maximum sentence for
this crime was 10 years imprisonment, but the hate
crime law authorized a sentencing judge to impose an
extended term of 20 years if the judge found (by a
preponderance of the evidence) that the defendant had
acted for the purpose of intimidating other people
based on their race, religion, ethnic background,
sexual orientation, etc..9
The New Jersey legislature and courts did not
view the hate crime law as defining a separate
substantive offense; rather, the law was seen as a
sentencing provision that increased the sentencing
range for a whole class of offenses, based on proof of
a particular sentencing factor (the defendants motive
for committing the underlying crime).10 Nevertheless,
the Supreme Court declared that this type of sentencing
provision implicated a defendants right to notice, to
trial by jury, and to proof beyond a reasonable
doubt.11 The Court explained:
Any possible distinction between an
element of a felony offense and a sentencing
factor was unknown to the practice of
criminal indictment, trial by jury, and
judgment by court as it existed during the
years surrounding our Nations founding. As a
general rule, criminal proceedings were
submitted to a jury after being initiated by
an indictment containing all the facts and
circumstances which constitute the offence,
... stated with such certainty and precision,
that the defendant ... may [...] determine
the species of offence they constitute [and]
prepare his defence accordingly ... and that
there may be no doubt as to the judgment
which should be given, if the defendant be
convicted.
Apprendi, 530 U.S. at 478, 120 S.Ct. at 2356
(quoting J. Archbold, Pleading and Evidence
in Criminal Cases (15th ed. 1862), p. 44)
(emphasis in the Apprendi opinion).
The Supreme Court italicized this
last portion of the quote from Archbold to
emphasize that, in the eighteenth and
nineteenth centuries, there was an invariable
linkage of punishment with crime. In the
words of Blackstone (quoted in Apprendi), a
sentencing court was obliged to pronounce
that judgment, which the law hath annexed to
the crime.12
The Court explained that it was
compelled to take action because, in recent
years, new forms of sentencing statutes had
begun to erode [t]he historic link between
verdict and judgment.13 The problem, as
explained by the Court, was that these
statutes introduced the novelty of a ...
scheme that removes the jury from the
determination of a fact that, if found,
exposes the criminal defendant to a penalty
exceeding the maximum he [might] receive if
punished according to the facts reflected in
the jury verdict alone.14
We do not suggest
that trial practices
cannot change [over the]
centuries ... . But
[criminal] practice must
... adhere to the basic
principles undergirding
the requirements of
trying to a jury all
facts necessary to
constitute a statutory
offense, and proving
those facts beyond a
reasonable doubt.
Apprendi, 530 U.S. at 483-84, 120 S.Ct. at
2359 (emphasis added).
This italicized language is, I
believe, key to understanding the Apprendi
decision. The Supreme Court viewed the New
Jersey hate crime law as, in essence,
creating a new group of statutory offenses
new, aggravated versions of the various
underlying offenses to which the hate crime
law applied. The Court declared that,
whatever might be said in favor of the
constitutionally novel and elusive
distinction between elements [of an offense]
and sentencing factors, ... the relevant
inquiry is one not of form, but of effect
does the required finding [i.e., the
defendants motive for committing the
underlying offense] expose the defendant to a
greater punishment than that authorized by
the jurys ... verdict [finding the defendant
guilty of that underlying offense]?15
Having reached the conclusion that
New Jerseys hate crime law actually created a
new, aggravated form of the underlying crime
of possession of a firearm for an unlawful
purpose, the Supreme Court then (naturally)
declared that it was unconstitutional for the
government of New Jersey to segregate one
element of this offense, call it a sentencing
factor, and then have that element tried to
the sentencing judge under a preponderance of
the evidence standard.16
In Blakely v. Washington,17 the
Supreme Court extended the rationale of
Apprendi to the context of determinate
sentencing.
The defendant in Blakely pleaded
guilty to second-degree kidnapping, a crime
that carried a maximum sentence of 10 years
imprisonment.18 However, within this 10-year
sentencing range, a judges sentencing
discretion was confined by a series of
criteria that either called for particular
sentencing ranges or that augmented or
reduced the otherwise prescribed sentencing
ranges. Thus, for instance, the defendant in
Blakely was subject to a standard sentencing
range of slightly more than 4 years (49 to 53
months) because, among class B felonies,
second-degree kidnapping had a seriousness
level of V, and because Blakely had an
offender score of 2, and because Blakelys use
of a firearm during the commission of the
kidnapping subjected him to a 36-month
enhancement of the otherwise prescribed
range.19
Despite this detailed sentencing
calculus, Washington law authorized
sentencing judges to impose a sentence above
the prescribed sentencing range if the judge
found substantial and compelling reasons
justifying an exceptional sentence.20 In
Blakelys case, the sentencing judge exceeded
the prescribed range by more than 3 years
(Blakely received 7 years to serve) because
the judge found that Blakely had acted with
deliberate cruelty.21
The Supreme Court held that, under
Washingtons sentencing laws, the finding of
deliberate cruelty was legally necessary to
support the punishment that Blakely
received22 and that, for this reason,
Blakely was entitled to have a jury decide
whether the state had proved this fact beyond
a reasonable doubt:
[T]he statutory maximum [sentence] for
Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the
facts reflected in the jury verdict or
admitted by the defendant. ... In other
words, the relevant statutory maximum is not
the maximum sentence a judge may impose after
finding additional facts, but the maximum he
may impose without any additional findings.
When a judge inflicts punishment that the
jurys verdict alone does not allow, ... the
judge exceeds his proper authority.
Blakely, 542 U.S. at 303-04, 124 S.Ct. at
2537 (emphasis in the original).
Writing for the majority in
Blakely, Justice Scalia explained that the
Courts decision was based on the need to give
intelligible content to the right of jury
trial.23
[This] right is no mere procedural formality,
but a fundamental reservation of power in our
constitutional structure. ... [J]ury trial
is meant to ensure [the peoples ultimate]
control in the judiciary. ... Apprendi
carries out this design by ensuring that the
judges authority to sentence derives wholly
from the jurys verdict. Without that
restriction, the jury would not exercise the
control that the Framers intended.
Blakely, 542 U.S. at 305-06, 124 S.Ct. at
2539.
Justice Scalia then emphasized that
the problem was not judicial fact-finding per
se, but rather legislative encroachment on
the right to jury trial.
[T]he Sixth Amendment ...
is not a limitation on
judicial power, but a
reservation of jury
power. It limits
judicial power only to
the extent that the
claimed judicial power
infringes on the province
of the jury.
Blakely, 542 U.S. at 308, 124 S.Ct. at 2540.
Thus, under a system of
indeterminate sentencing i.e., a sentencing
scheme in which the judge has the discretion
to impose any term of imprisonment within a
specified range of sentences a sentencing
judge does not violate the Sixth Amendment
when the judge engages in fact-finding when
choosing a sentence within the specified
range:
Indeterminate sentencing ... increases
judicial discretion, ... but not at the
expense of the jurys traditional function of
finding the facts essential to the lawful
imposition of the penalty. ...
[I]ndeterminate [sentencing] schemes involve
judicial factfinding, in that a judge ... may
implicitly rule on those facts he deems
important to the exercise of his sentencing
discretion. But [these] facts do not pertain
to whether the defendant has a legal right to
a lesser sentence and that makes all the
difference [on the issue of] judicial
impingement upon the traditional role of the
jury ... . In a system that says the judge
may punish burglary with [a sentence of] 10
to 40 years, every burglar knows he is
risking 40 years in jail. [But in] a system
that punishes burglary with a 10-year
sentence, with another 30 added for use of a
gun, the burglar who enters a home unarmed is
entitled to no more than a 10-year sentence
and by reason of the Sixth Amendment[,] the
facts [that authorize any higher sentence]
must be found by a jury.
Blakely, 542 U.S. at 309, 124 S.Ct. at 2540
(emphasis in the original).
The Supreme Courts most recent
decision in this area, United States v.
Booker,24 contains an even more explicit
explanation of the rationale underlying
Apprendi and Blakely. Justice Stevens,
writing for the majority, emphasized that the
key constitutional problem was the erosion of
the jurys traditional role in determining a
criminal defendants level of guilt, as more
and more states (and the federal government)
adopted determinate sentencing schemes
sentencing schemes that gave judges the power
to resolve the factual disputes that would
determine the upper limit of the defendants
punishment:
It is quite true that[, under
indeterminate sentencing schemes,] judges
commonly determined facts justifying [their]
choice of a heavier sentence ... . [But in]
1986, [we] first recognized a new trend in
the legislative regulation of sentencing[:
sentencing laws under which] facts selected
by legislatures ... not only authorized, or
even mandated, heavier sentences than would
otherwise have been imposed, but increased
the range of sentences possible for the
underlying crime. ...
The effect of the increasing emphasis on
facts that enhanced [the permitted]
sentencing ranges ... was to increase the
judges power and diminish that of the jury.
It became the judge, not the jury, that
determined the upper limits of sentencing,
and the facts [that] determined [the
sentencing range] were not required to be
raised before trial or proved by more than a
preponderance [of the evidence].
As the [sentencing] enhancements became
greater, the jurys finding of the underlying
crime became less significant. And the
[sentence] enhancements became very serious
indeed [ in some instances, dwarfing the
initially prescribed sentence].
Booker, 543 U.S. __, 125 S.Ct. at 751.
Justice Stevens explained that,
given this development in sentencing law, the
Court was faced with the issue of preserving
the ancient guarantee [of jury trial] under a
new set of circumstances:
The new sentencing practice forced the Court
to address the question [of] how the right of
jury trial could be preserved [so that it
would continue to guarantee], in a meaningful
way[,] ... that the jury would still stand
between the individual and the power of the
government under the new sentencing regime.
[I]t is the new circumstances ... that have
led us to the answer ... developed in
Apprendi and subsequent cases[,] culminating
with this one. It is an answer not motivated
by Sixth Amendment formalism, but by the need
to preserve Sixth Amendment substance.
Booker, 543 U.S. __, 125 S.Ct. at 752.
With this explanation of Apprendi,
Blakely, and Booker as my guide, I now turn
to the question at hand: Under the Sixth
Amendment, does a defendant have the right to
insist that a jury decide the sentencing
question posed by Neal (whether a term of
imprisonment exceeding the maximum for the
defendants single most serious offense is
needed to protect the public)?
Why I conclude that the right to jury trial announced
in Apprendi, Blakely, and Booker does not apply to
a Neal finding
The Supreme Courts decisions in Apprendi,
Blakely, and Booker all ultimately deal with the
same issue: the limitation that the Sixth
Amendment places on the governments power to
define criminal offenses. To preserve the right
to jury trial guaranteed by the Sixth Amendment,
the Supreme Court has ruled that governments can
not define criminal offenses in a manner that
allows the prosecutor to present a stripped-down
case to the jury and then, following the
defendants conviction, allows the sentencing judge
to decide other factual issues which (if proved)
will lift the sentencing ceiling effectively
convicting the defendant of an aggravated degree
of the underlying offense.
But as the Supreme Court has repeatedly
emphasized, this trilogy of cases does not affect the
legality of judicial fact-finding in the context of
indeterminate sentencing that is, in a sentencing
scheme where the penalty for a crime is a range of
imprisonment, and the judges task is to decide how to
exercise the sentencing discretion afforded by this
range of imprisonment. In this context, as Justice
Scalia explained in Blakely, the facts found by the
sentencing judge do not pertain to whether the
defendant has a legal right to a lesser sentence and
that makes all the difference [as to whether the judges
fact-finding] impinge[s] upon the traditional role of
the jury.25
Under Alaska law, the fact that a defendant
has been found guilty of two or more crimes
automatically subjects the defendant to the possibility
of consecutive sentences. No further fact-finding is
necessary to invest the sentencing judge with the
authority to impose consecutive terms of
imprisonment.26 (Indeed, both this Court and our
supreme court have construed Alaskas sentencing
statutes as creating a slight preference for
consecutive sentencing, a preference which the
sentencing judge has the authority to reject.)27
Thus, when an Alaska judge decides whether,
or to what extent, a defendants sentences should be
imposed consecutively, the judge is performing a task
analogous to the task a judge would face when
sentencing a defendant for a single offense under an
indeterminate sentencing scheme. Except in those
instances where Alaska law expressly requires
consecutive sentencing, the judges sentencing
discretion does not hinge on any particular fact
relating to the defendants conduct, mental state, or
criminal history, or to any other circumstance
surrounding the defendants crimes. When the sentencing
judge engages in fact-finding on any of these issues,
this fact-finding is not done to establish the judges
legal authority to impose the selected sentence.
Rather, this fact-finding is done to explain to the
defendant, to the public, and ultimately to a reviewing
court why the judge exercised their sentencing
discretion in a particular manner.
Earlier in this concurrence, I described the
argument that could be made in favor of Vandergriffs
position in this appeal. The argument is this: An
Alaska sentencing judges discretion to impose
consecutive sentences is not unbounded. In Neal, our
supreme court established a ceiling (albeit a flexible
ceiling) that applies to consecutive sentencing
decisions, and the court defined the question that must
be addressed before this ceiling is exceeded: whether
the protection of the public requires a composite
sentence beyond the maximum term for the defendants
single most serious offense. Because this question
must be answered in the affirmative before a judge may
properly impose consecutive sentences that exceed this
ceiling, a defendant has the right to demand that a
jury decide this question, and the right to demand that
the government prove its position (i.e., the necessity
of such a lengthy sentence) beyond a reasonable doubt.
I reject this argument for three reasons.
First, the rule announced in Neal does not
implicate the constitutional concern addressed in
Apprendi, Blakely, and Booker. As explained above,
these three decisions are aimed at preventing the
government from subverting the right to jury trial by
artificially dividing crimes into elements (facts that
must be proved to a jury beyond a reasonable doubt) and
sentencing factors (facts which increase the defendants
maximum punishment and which can be proved to a judge
under some lesser standard). The Neal rule has nothing
to do with reshaping the role of the jury in the
criminal justice process. Rather, Neal is the supreme
courts attempt to regulate the expansive consecutive
sentencing power that the legislature has given to
judges. Neal requires sentencing judges to think, and
to explain, before they utilize the full extent of
their consecutive sentencing power.
Second, the finding required by Neal is not
the same type of finding that was at issue in Apprendi,
Blakely, and Booker. To a large degree, this
conclusion follows from what I said in the previous
paragraph.
The constitutional problem in Apprendi,
Blakely, and Booker was the attempt by various
governments to segregate certain aspects of a crime
facts that would traditionally be viewed as elements of
the crime (facts relating to the defendants conduct,
mental state, or criminal history, or to other
circumstances surrounding the crime) and assign the
decision of these facts to the sentencing judge by
declaring these facts to be sentencing factors.
In contrast, the finding required by Neal
does not turn on any factual aspect of the defendants
present offenses. Although a sentencing judge who
complies with the Neal rule may mention or even rely on
the facts of the defendants present offenses, the
ultimate question posed by Neal is not one of
historical fact. Rather, Neal requires sentencing
judges to explain their conclusions regarding the
proper length of a defendants composite sentence.
Under Alaska law, this sentencing conclusion must be
based on a weighing of the defendants conduct and
background against, or in light of, the various
sentencing goals first announced in State v. Chaney,
477 P.2d 441, 444 (Alaska 1970), and now codified in
AS 12.55.005.28
Rather than being a finding of historical
fact, the finding required by Neal (that a lengthy
sentence is required to protect the public) is partly a
weighing of imponderables and partly a prediction of
the defendants future behavior, based on the judges
assessment of the underlying causes of the defendants
criminal behavior, the defendants likelihood of
recidivism, and the defendants amenability to
rehabilitative efforts. In other words, this finding
does not look like any of the findings that are
traditionally entrusted to the jury under our system of
justice (save in those few states which give sentencing
authority to juries).
(Accord: People v. Black, 113 P.3d 534, 548-
550; 29 Cal.Rptr.3d 740, 756-58 (Cal. 2005); State v.
Rivera, 102 P.3d 1044, 1054-58, 1059-1062 (Haw. 2004);
People v. Rivera, 833 N.E.2d 194, 199-200; 800 N.Y.S.2d
51, 56-57 (N.Y. 2005); State v. Lett, 829 N.E.2d 1281,
1290-92 (Ohio App. 2005) (en banc); State v. Hughes,
110 P.3d 192, 202 (Wash. 2005).)
Third, and finally, it makes no sense to
require the government to prove the necessity of a
particular sentence beyond a reasonable doubt. Alaska
law recognizes that sentencing is not an exact science.
As our supreme court has said, appellate sentence
review in this state is founded on two concepts:
first, that reasonable judges, confronted with
identical facts, can and will differ on what
constitutes an appropriate sentence; second, that
society is willing to accept these sentencing
discrepancies, so long as a judges sentencing decision
falls within a permissible range of reasonable
sentences.29 Because a sentencing decision involves
the weighing of imponderables and a prediction of
future behavior, it is self-defeating and fruitless to
ask the government to prove that, beyond any reasonable
doubt, a particular sentence is necessary to protect
the public.
For these reasons, I conclude that the Neal
rule does not implicate the Sixth Amendment concerns
expressed in Apprendi, Blakely, and Booker.
Accordingly, I concur with my colleagues that a
defendant has no right to have a jury decide the
sentencing question posed by Neal.
_______________________________
1 AS 11.46.130(a)(2) & (b); AS 11.46.505(a) & (b); and AS
11.46.310(a) & (b), respectively.
2 See former AS 12.55.125(e)(2).
3 AS 11.46.300.
4 AS 11.46.360(a)(1).
5 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
6 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
7 Booker, 125 S. Ct. at 756.
8 Blakely, 542 U.S. at 301-02, 124 S. Ct. at 2536.
9 These two sections were repealed in 2004 and replaced with
AS 12.55.127, which went into effect on July 1, 2004. See ch.
125, 9, SLA 2004. Although Vandergriff was sentenced in August
2004, AS 12.55.127 applies to offenses committed on or after July
1, 2004. See ch. 125, 8, SLA 2004.
10118 P.3d 17 (Alaska App. 2005). See also Wright v. State,
46 P.3d 395, 398 (Alaska App. 2002) (rejecting Wrights claim that
AS 12.55.025(e) was unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).
11 See Neal v. State, 628 P.2d 19, 21 (Alaska 1981) (Our past
decisions imply that where consecutive sentences for two or more
counts exceed the maximum sentence for any single count, the
sentencing judge should make a formal finding that confinement
for the combined term is necessary to protect the public.)
(citing Mills v. State, 592 P.2d 1247, 1248 (Alaska 1979), and
Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977)); Powell v.
State, 88 P.3d 532, 537 (Alaska App. 2004) (applying the Neal-
Mutschler rule based on belief defendant was a poor candidate for
rehabilitation).
12See Edmonds, 118 P.3d at 21; Brown v. Greiner, 409 F.3d 523,
533 (2nd Cir. 2005); State v. Rivera, 102 P.3d 1044, 1055-56,
1059-62 (Haw. 2004) (citing People v. Rivera, 833 N.E.2d 194, 200
n.8 (N.Y. 2005); State v. Satterwhite, __ N.E.2d __, 2005 WL
1356445 at *6 (Ohio App. 10 Dist. June 9, 2005); State v. Lett,
829 N.E.2d 1281, 1289-92 (Ohio App. 8 Dist. 2005) (en banc)).
See also People v. Black, 113 P.3d 534, 548-50 (Cal. 2005); State
v. Senske, 692 N.W.2d 743, 747-48 (Minn. App. 2005); State v.
Kinney, 106 P.3d 274, 275-77 (Wash. App. 1 Div. 2005).
13Apprendi, 530 U.S. at 470, 120 S. Ct. at 2352; Blakely, 542
U.S. at 298, 124 S. Ct. at 2534.
14Blakely, 542 U.S. at 308-09, 124 S. Ct. at 2540.
15See Edmonds, 118 P.3d at 21; Simon v. State, 121 P.3d 815,
820 (Alaska App. 2005); State v. Hughes, 110 P.3d 192, 202
(Wash. 2005); Black, 113 P.3d at 543; State v. Martinez, 115 P.3d
618, 623 (Ariz. 2005).
16AS 12.55.005.
17812 P.2d 222 (Alaska App. 1991).
18Id. at 232.
19669 P.2d 961 (Alaska App. 1983).
20Id. at 967-68.
21Evans v. State, 23 P.3d 650, 652 (Alaska App. 2001);
Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App. 1989).
22See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing courts decision unless
the sentence is clearly mistaken).
1 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
2 118 P.3d 17, 21 (Alaska App. 2005).
3 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
4 Booker, 543 U.S. at __, 125 S.Ct. at 754-55; see also
Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102
L.Ed.2d 714 (1989) (upholding the constitutionality of this
Congressional delegation of sentencing authority).
5 Booker, 543 U.S. at __, 125 S.Ct. at 752.
6530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
7Booker, 543 U.S. at __, 125 S.Ct. at 752 (quoting Apprendi,
530 U.S. at 490, 120 S.Ct. at 2363, but adding emphasis
to the word statutory).
8Ring, 536 U.S. at 602, 122 S.Ct. at 2439.
9 Apprendi, 530 U.S. at 469-470, 120 S.Ct. at 2351.
10Id., 530 U.S. at 492, 120 S.Ct. at 2363-64.
11Id., 530 U.S. at 476-77, 120 S.Ct. at 2355-56.
12Id., 530 U.S. at 478-79, 120 S.Ct. at 2356.
13Id., 530 U.S. at 482, 120 S.Ct. at 2359.
14Id., 530 U.S. at 482-83, 120 S.Ct. at 2359.
15 Id., 530 U.S. at 494, 120 S.Ct. at 2365.
16 Id., 530 U.S. at 494-97, 120 S.Ct. at 2365-66.
17 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
18 Blakely, 542 U.S. at 299, 124 S.Ct. at 2534-35.
19 Id., 542 U.S. at 299, 124 S.Ct. at 2535.
20 Id.
21 Id.
22 Id., 542 U.S. at 303-05, 124 S.Ct. at 2537-38.
23 Id., 542 U.S. at 305, 124 S.Ct. at 3538.
24 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
25Blakely, 542 U.S. at 309, 124 S.Ct. at 2540.
26See Edmonds v. State, 118 P.3d 17, 21 (Alaska App. 2005).
27See State v. Hodari, 996 P.2d 1230, 1233 (Alaska 2000);
Contreras v. State, 767 P.2d 1169, 1174 (Alaska App. 1989);
Jones v. State, 744 P.2d 410, 411 (Alaska App. 1987); State
v. Andrews, 707 P.2d 900, 909 (Alaska App. 1985), affirmed
723 P.2d 85 (Alaska 1986).
28See Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).
29State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000), quoting
this Courts decision in Erickson v. State, 950 P.2d 580, 586
(Alaska App. 1997).
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