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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-9031 | |
| Petitioner, | ) Trial Court No. 4FA-02-1280 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| LAWRENCE AVERY, | ) |
| ) | |
| Respondent. | ) No. 2036 - March 10, 2006 |
| ) | |
Petition for review
from the Superior Court, Fourth Judicial
District, Fairbanks, Jane F. Kauvar, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Petitioner. David K. Allen,
Assistant Public Advocate, Fairbanks, and
Joshua P. Fink, Public Advocate, Anchorage,
for Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
COATS, Chief Judge, concurring.
In Blakely v. Washington,1 the United States Supreme
Court held that [a]ny 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.2 Avery, who had been sentenced by
Acting Superior Court Judge Jane F. Kauvar before the Blakely
decision, filed a motion to correct his sentence under Alaska
Criminal Rule 35(a), arguing that his sentence was illegal under
Blakely because Judge Kauvar had found several aggravating
factors without submitting those aggravators to a jury. Judge
Kauvar concluded that she should review Averys sentence. The
State argued that Judge Kauvar had no authority to review Averys
sentence because all of the aggravating factors that the court
had previously found were based upon Averys prior convictions,
and therefore, Blakely did not require submission of these
aggravating factors to a jury. When Judge Kauvar set a
sentencing hearing to review Averys sentence, the State filed a
petition for review in this court. We granted the petition. We
now conclude that all of the aggravating factors that applied to
Averys sentence were based upon his prior convictions, and
therefore, Blakely did not require jury submission.
On appeal, Avery raises a new issue which he did not
present in the trial court. Avery argues that this prior
conviction exception to Blakely relies on questionable authority
Almend rez-Torres v. United States.3 He urges us to anticipate
that the Supreme Court will overturn Almend rez-Torres and hold
that the government must prove any prior conviction that
increases a defendants maximum sentence to a jury beyond a
reasonable doubt. In a related argument, Avery argues that, under
Alaska law, the aggravating factors in his case, even if they
were based upon his prior convictions, were elements of his
offense. He argues that the State had to obtain an indictment
from a grand jury and prove those aggravating factors to a jury
beyond a reasonable doubt. We decline to reach these arguments
because they were never presented in the trial court or raised in
the petition.
Factual and procedural background
Lawrence Avery was convicted of misconduct involving a
controlled substance in the fourth degree, a class C felony, for
possession of cocaine.4 Avery was a third-felony offender for
purposes of presumptive sentencing and therefore faced a
presumptive term of 3 years imprisonment.5 Under Alaskas pre-
2005 presumptive sentencing laws, the State proposed four
aggravating factors: (1) AS 12.55.155(c)(7) (a prior felony
conviction considered for the purpose of invoking the presumptive
terms of this chapter was of a more serious class of offense than
the present offense); (2) AS 12.55.155(c)(8) (the defendants
prior criminal history includes conduct involving aggravated or
repeated instances of assaultive behavior); (3)
AS 12.55.155(c)(15) (the defendant has three or more prior felony
convictions); and (4) AS 12.55.155(c)(21) (the defendant has a
criminal history of repeated instances of conduct violative of
criminal laws, whether punishable as felonies or misdemeanors,
similar in nature to the offense for which the defendant is being
sentenced under this section).
Avery did not dispute his prior convictions or the
applicable aggravating factors. Judge Kauvar found all four of
the aggravating factors and sentenced Avery to the presumptive 3-
year term, and based upon the aggravating factors, to an
additional 1-year of suspended incarceration. Avery appealed his
conviction to this court. We affirmed.6
Avery then filed a motion under Criminal Rule 35(a)
arguing that Blakely made his sentence illegal. In Blakely, the
Supreme Court held: 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 Avery argued that, under Blakely,
which was decided after Judge Kauvar imposed the sentence, the
maximum sentence for his crime was 3 years of imprisonment. He
argued that Judge Kauvar could not lawfully find the aggravating
factors without giving him the opportunity to contest those
aggravating factors in a jury trial. In opposition, the State
raised several arguments that Averys sentence was not illegal
under Blakely.
Judge Kauvar concluded that, because at least some of
Averys aggravating factors were based upon his prior convictions,
she had the authority to impose an enhanced sentence under
Blakely. But she concluded that she should conduct another
sentencing hearing and evaluate whether, given the Blakely
decision, she should impose the same sentence.
The State filed a motion for reconsideration, which
Judge Kauvar denied. The State then filed a petition for review
with this court, requesting a stay of the resentencing hearing
pending resolution of the petition. In its petition, the State
contended that Blakely did not make Averys sentence illegal.
Therefore, the State argued that Judge Kauvar had no authority
to modify Averys sentence.
We granted the petition and ordered briefing. We now
conclude that all of the aggravating factors that Judge Kauvar
found were based only upon Averys prior convictions, and there
were no factual issues that Blakely would require a jury to
determine. Therefore, Averys sentence was not illegal under
Blakely for Criminal Rule 35 purposes and Judge Kauvar lacked
authority to modify his sentence.
All of the aggravating factors were properly
based on Averys prior convictions
In Milligrock v. State,8 we stated:
Blakely expressly exempts a defendants prior
convictions from the requirement of jury
trial. That is, when a defendants prior
conviction is the fact that authorizes a
sentencing judge to exceed an otherwise
applicable sentencing limit, the sentencing
judge can rely on that prior conviction
despite the normal Blakely requirement of a
jury trial.[9]
Avery appears to concede that, under our prior decisions, he was
not entitled to a jury trial on any of the aggravating factors
because those aggravating factors were based upon his prior
convictions.10
We agree with Averys concession. The first aggravating
factor that Judge Kauvar found was that a prior felony conviction
considered for purposes of invoking the presumptive terms of this
chapter was of a more serious class of offense than the present
offense.11 We previously addressed this aggravating factor in
Milligrock. We stated:
Aggravator (c)(7) that one of the defendants
prior felonies is of a more serious class
than the defendants current offense is
expressly based on a defendants prior
convictions. Assuming that there is no
dispute as to the existence of those prior
felony convictions, this aggravator presents
no problem under Blakely.[12]
In the present case, Avery faced sentencing for a class C felony.
It is uncontested that Avery had a prior conviction for a class B
felony offense. The aggravator was therefore clearly
established, and under Blakely, Avery was not entitled to a jury
trial.
The next aggravating factor in question was that Avery
had a history of aggravated or repeated instances of assaultive
behavior. Avery concedes that, in Milligrock, we concluded that
where the defendant has two or more convictions for assault, this
aggravator has been established.13 It is uncontested that Avery
had four prior convictions for assault. The aggravator was
established based only upon Averys prior convictions. Therefore,
Judge Kauvar did not violate Blakely in finding this aggravating
factor without submitting it to the jury.
We next turn to aggravator (c)(15) (the defendant has
three or more prior felony convictions). It is uncontested that
Avery had three or more prior felony convictions. In order to
find this aggravating factor, all Judge Kauvar had to do was
count the prior felonies. There was no question for the jury to
decide under Blakely. We accordingly conclude that this
aggravating factor was clearly established and that Judge Kauvar
did not violate Blakely in finding the aggravating factor without
submitting it to the jury.
We turn next to the fourth aggravating factor, AS
12.55.155(c)(21) that Avery had a history of repeated instances
of criminal conduct similar in nature to his present offense.
This aggravator poses a potential Blakely problem because it does
not necessarily require proof that the prior instances of
criminal conduct led to convictions. And even when proof of this
aggravator is based on prior convictions, there might conceivably
be a factual dispute as to whether the conviction represented
conduct similar in nature to the defendants present offense (as
opposed to a legal dispute as to whether given conduct was
sufficiently similar for purposes of this aggravator).
In Milligrock, we pointed out a similar problem with
respect to aggravator (c)(8) that a defendant has a history of
repeated instances of assaultive behavior. In particular, we
pointed out that this aggravator presented a Blakely problem to
the extent that it might be proved by instances of assaultive
behavior that did not result in convictions for assault.14 But
we concluded that proof of this aggravator based on prior
convictions for assault does not violate Blakely.
In Grohs v. State,15 we directly addressed aggravator
(c)(21) (criminal history of similar conduct).16 We held that,
at least when a defendant did not dispute the existence of the
prior convictions, and when the State relied simply on the
convictions themselves and the legal elements of those crimes,
rather than attempting to introduce evidence of the particular
facts underlying the prior convictions the court could find the
aggravator without violating Blakely.17 It is uncontested that
Avery had several prior felony convictions for possession and
sale of illegal drugs. Therefore, these convictions clearly
established aggravator (c)(21), and there was no issue for a jury
to resolve.
Judge Kauvar has no authority to modify Averys sentence
Criminal Rule 35(a) allows a court to correct an
illegal sentence at any time. But, as our prior analysis
demonstrates, there was nothing illegal about Averys sentence.
Criminal Rule 35(b) authorizes a court to modify or
reduce a sentence within 180 days of the distribution of the
written judgment upon a motion made in the original criminal
case. Under Criminal Rule 53, a court does have the authority to
relax the 180-day deadline if there is a showing of manifest
injustice.18 But a court may not relax the 180-day period by
more than 10 days.19 We have strictly enforced the time limit
provided in Criminal Rule 35(b).20 Avery did not file his
motion for relief under Criminal Rule 35(b), and even if he had,
it is uncontested that this motion would have been untimely.
We conclude that Judge Kauvar has no authority to
modify Averys sentence. We therefore vacate Judge Kauvars order
setting a sentencing hearing to review Averys sentence.
We do not decide the issues that Avery did
not raise either in the trial court or in his
reply to the States petition
The parties raised an issue in this court that they did
not present in the trial court. Avery contends that Almend rez-
Torres, which allows a defendants prior convictions to be proven
to the court without a jury finding, is questionable authority.
He urges us to anticipate that the Supreme Court will conclude
that Almend rez-Torres was incorrectly decided and will hold that
the government must prove to a jury beyond a reasonable doubt any
prior conviction that increases a defendants maximum sentence.
In a related argument, which he first raises in his
opening brief, Avery argues that, under Alaska law, the four
aggravating factors in this case were elements of his offense,
and therefore, the State had to obtain an indictment from a grand
jury and prove these aggravating factors to a jury beyond a
reasonable doubt. These issues were never presented to the trial
court or raised in the petition for review that this court
granted. We accordingly decline to address these issues.
The order setting a resentencing hearing is REVERSED.
COATS, Chief Judge, concurring.
My colleagues decline to address the arguments that
Avery raises for the first time in this court. But the State
briefed these arguments and has not contested whether Avery could
first raise them in his opposition to the States petition. The
Blakely decision, by essentially throwing out many of the
sentencing provisions in the prior code, has raised many legal
issues. I think we should strive to resolve those issues as
promptly as we can. The only reason to delay, that I can see, is
the hope that we will be older and wiser in the future. My
experience is that while the former is easy to accomplish, the
latter has proven to be far more elusive. I would therefore
resolve those issues.
The Blakely decision expressly exempts a defendants
prior convictions from facts that had to be proven to a jury
beyond a reasonable doubt in order to increase a defendants
maximum sentence.1 Avery attacks the underpinnings of the prior
conviction exception. He points out that the exception for prior
convictions in Blakely relies on the United States Supreme Courts
holding in Almend rez-Torres.2 Avery notes that Almend rez-Torres
was a five-to-four decision over a strong dissent by Justices
Scalia, Stevens, Souter, and Ginsburg.3 And recently in Shephard
v. United States,4 Justice Thomas, who was a member of the
Almend rez-Torres majority, suggested that Almend rez-Torres has
been eroded by this courts subsequent Sixth Amendment
jurisprudence, and a majority of the court now recognizes that
Almend rez-Torres was wrongly decided.5 In addition, in
Apprendi v. New Jersey, the Supreme Court questioned the validity
of its Almend rez-Torres decision, but declined to address it
because Apprendi did not contest that holding:
Even though it is arguable that Almend rez-
Torres was incorrectly decided, and that a
logical application of our reasoning today
should apply if the recidivist issue were
contested, Apprendi does not contest the
decisionss validity and we need not revisit
it for purposes of our decision today to
treat the case as a narrow exception to the
general rule we recalled at the outset.[6]
Based upon this history, Avery argues that a majority of the
justices on the Supreme Court have disavowed the Almend rez-
Torres case, which permits the government to prove to the court a
defendants prior convictions to enhance his sentence. He
concludes that the Supreme Court will eventually overrule
Almend rez-Torres and require the government to prove a
defendants prior convictions to a jury beyond a reasonable doubt.
He urges us to anticipate the Supreme Courts ruling.
A number of courts have addressed the argument that
Avery raises. They have rejected it. While acknowledging that
there are doubts about Almend rez-Torress continuing validity,
these courts have universally concluded that they must apply the
Supreme Courts precedent as it exists, rather than trying to
anticipate what the Supreme Court might do in the future.7 I
conclude that we should follow those decisions.
In a related argument, Avery argues that, under Alaska
law, the aggravating factors were elements of his offense.
Therefore, the State had to obtain an indictment from a grand
jury and prove these aggravating factors to a jury beyond a
reasonable doubt. Avery mainly relies on Donlun v. State.8
Donlun was charged in an indictment with burglary.9
But the statute under which Donlun was charged provided for a
sentence of 1 to 10 years for burglary in a dwelling, 1 to 15
years if the burglary occurred at night, and 1 to 20 years if
the dwelling was occupied at the time of the burglary.10 Donlun
was convicted of burglary and sentenced to 10 years with 4 years
suspended.11 In sentencing Donlun, the court considered the
facts that, when Donlun committed the burglary the dwelling was
occupied and the offense occurred at night.12
The Alaska Supreme Court held that the facts that the
burglary occurred during the nighttime and that the dwelling was
occupied were elements of the offense. Therefore, in order to
sentence Donlun to the higher penalties for burglary based upon
these facts, the State needed to have a grand jury indict based
upon these facts and prove them to a jury beyond a reasonable
doubt.13 The court recognized that Donlun had received a
sentence of less than 10 years for his offense. But the court
concluded that the trial court should resentence Donlun with the
recognition that the maximum sentence for his offense was not 20
years but 10.14 The court remanded for resentencing.
The Alaska Supreme Court extensively discussed Donlun
in State v. Malloy.15 But the supreme court pointed out that, in
Donlun, the facts that the defendant committed the crime during
the nighttime and in an occupied dwelling were elements of the
burglary offense. The supreme court specifically stated that it
declined to expand the Donlun rule under the Alaska Constitution
to prohibit presumptive or mandatory sentencing factors as long
as those factors simply guide or limit a sentencing courts
discretion within the existing statutory sentencing range for the
offense at issue.16 Therefore, the supreme court suggested that
Donlun did not apply to prohibit presumptive sentencing. I
accordingly conclude that there is no merit to Averys argument
that Alaska law precluded the State from proving the aggravating
factors because the State did not present these aggravating
factors to a grand jury or trial jury.
_______________________________
1 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
2 United States v. Booker, 543 U.S. 220, _____, 125 S. Ct.
738, 756, 160 L. Ed. 2d 621 (2005).
3 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
4 AS 11.71.040(a).
5 AS 12.55.125(e)(3).
6 Avery v. State, Alaska App. Memorandum Opinion and
Judgment No. 4906 (Aug. 11, 2004), 2004 WL 1782553.
7 Booker, 543 U.S. at _____, 125 S. Ct. at 756.
8 118 P.3d 11, 15 (Alaska App. 2005).
9 Id. at 15.
10 Id.; Grohs v. State, 118 P.3d 1080, 1083 (Alaska App.
2005); Edmonds v. State, 118 P.3d 17, 20 (Alaska App. 2005).
11 AS 12.55.155(c)(7).
12 Milligrock, 118 P.3d at 16.
13 Id.
14 Id.
15 118 P.3d 1080 (Alaska App. 2005).
16 Id. at 1083-84.
17 Id. at 1084 (citation omitted).
18 See Alaska Crim. R. 53; Thomas v. State, 566 P.2d 630,
638-39 (Alaska 1977).
19 Alaska Crim. R. 35(g).
20 See, e.g., State v. Couch, 991 P.2d 1286, 1287-88
(Alaska App. 1999); State v. Tinsley, 928 P.2d 1220, 1223 (Alaska
App. 1996).
1 Blakely, 542 U.S. at 301, 124 S. Ct. at 2536 (citing
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000)).
2 Almend rez-Torres, 523 U.S. 224, 118 S. Ct. 1219, 140 L.
Ed. 2d 350 (1998).
3 523 U.S. at 248-71, 118 S. Ct. at 1233-44.
4 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).
5 Shephard, 544 U.S. at _____, 125 S. Ct. at 1264 (Thomas,
J., concurring).
6 Apprendi, 530 U.S. at 489-90, 120 S. Ct. at 2362 (footnote
omitted).
7 See United States v. Rodriguez-Montelongo, 263 F.3d 429,
434 (5th Cir. 2001) (noting that although Apprendi cast serious
doubt on Almend rez-Torress validity, the Supreme Court did not
overrule it and it is for the Court of Appeals to apply the law
as it exists and for the Supreme Court to overrule its precedent
if it so chooses. [I]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to [the Supreme Court]
the prerogative of overruling its own decisions.) (citations
omitted)); United States v. Davis, 260 F.3d 965, 969 (8th Cir.
2001) (addressing the continuing viability of Almend rez-Torres,
the court applied the prior conviction exemption and determining
that [i]t is our role to apply Supreme Court precedent as it
stands, and not as it may develop.); United States v. Losoya-
Mancias, 332 F. Supp. 2d 1261, 1265 (D.N.D. 2004) (recognizing
that both Apprendi and Blakely question the soundness of
Almend rez-Torres, but finding that Almend rez-Torres prior
conviction exception is still the law of the land until the
Supreme Court chooses to overrule it); United States v. Gebele,
117 F. Supp. 2d 540, 548-49 (W.D. Va. 2000) (holding that because
Almend rez-Torres has not been overruled, the fact that a
majority of the court expresses doubt as to its validity does not
affect its status as controlling law, and therefore the court
cannot simply ignore the rule therein by simply counting Justices
or by speculating about what the Supreme Court might do in the
future); People v. Rivera, 833 N.E.2d 194, 198 (N.Y. 2005)
(noting that the prior conviction exception has been repeatedly
reaffirmed by the Supreme Court, and [a]lthough a majority of the
present Justices of the Supreme Court have expressed disagreement
with Almend rez-Torres, we recognize that Courts obvious
prerogative to overrule its own decisions and we therefore follow
Almend rez-Torres until the Supreme Court rules otherwise.)
(citations omitted)).
8 527 P.2d 472 (Alaska 1974).
9 Id. at 474.
10 Id.
11 Id. at 473.
12 Id.
13 Id. at 474.
14 Id.
15 46 P.3d 949, 953-56 (Alaska 2002).
16 Id. at 957.
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