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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
| DAVID A. TYLER, | ) | |
| ) Court of Appeals No. A-8991 Appellant, | ) Trial Court No. 3AN-02-06635 CR | |
| ) | ||
| v. | ) | |
| ) O P I N I O N | ||
| STATE OF ALASKA, | ) | |
| ) | ||
| Appellee. | ) No. 2039 March 31, 2006 | |
| ) | ||
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Dan A. Hensley,
Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and Quinlan Steiner, 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.
David Tyler was convicted of felony driving while
intoxicated and faced a 3-year presumptive term because he was a
third felony offender. After Tyler conceded two aggravating
factors, the superior court imposed 5 years imprisonment. Tyler
argues that his sentence was illegal under Blakely v. Washington1
because neither aggravator was found by jury beyond a reasonable
doubt. Because Tyler conceded that both aggravators applied, and
because he has not shown plain error, we reject Tylers arguments.
Facts and procedural background
In July 2002, David Tyler was charged with felony
driving while intoxicated, refusal to submit to a chemical test,
and driving with a suspended license.2 Tyler pleaded no contest
to driving while intoxicated and driving with a suspended
license; the refusal charge was dismissed.
At sentencing in April 2003, Tyler conceded, through
his attorney, two aggravators: AS 12.55.155(c)(20) (Tyler was on
parole or probation for another felony charge at the time of the
offense); and AS 12.55.155(c)(21) (Tyler had a criminal history
of repeated instances of similar conduct). The State relied on
Tylers prior convictions for driving under the influence to prove
aggravator (c)(21). Tyler had six prior driving under the
influence convictions, two of which were felony convictions.
Thus, Tyler faced a 3-year presumptive term.3 Tyler was on
probation for one of the previous felony convictions when he
committed the present offense.
Superior Court Judge Dan A. Hensley sentenced Tyler to
the maximum 5 years imprisonment for the felony DWI, revoked an
additional 6 months suspended imprisonment from one of the
previous DWI convictions, and imposed 30 days imprisonment for
driving with a suspended license.
In an earlier appeal, we affirmed Tylers 5-year
sentence for felony driving under the influence but remanded the
case to the superior court to determine whether Tylers composite
sentence for all three offenses should exceed the 5-year prison
term.4 On remand, Judge Hensley reduced Tylers sentence to a
composite 5-year term by ordering that Tylers 30-day sentence for
driving with a revoked license run concurrently with Tylers 5-
year sentence for felony driving while intoxicated. Judge
Hensley also returned Tyler to probation with no time imposed for
the probation violation.
Judge Hensley imposed the reduced sentence on April 19,
2004, four years after the United States Supreme Court issued its
decision in Apprendi v. New Jersey5 but before its decision in
Blakely v. Washington. We affirmed Tylers modified sentence in
an order issued after the Supreme Court issued Blakely.
After Blakely was decided, Tyler filed a motion to
correct illegal sentence under Alaska Rule of Criminal Procedure
35(a), arguing that the superior court did not have authority to
impose a sentence greater than the presumptive 3-year term
because a jury did not find the aggravators the court relied on
to impose the 5-year sentence. Judge Hensley denied Tylers
motion, ruling that neither aggravator needed to be proved to the
jury because they both fell into the prior convictions exception
outlined in Blakely.
Tyler appeals.
Does Tylers sentence violate Blakely?
Both parties agree that the rule in Blakely applies to
Tylers case. But Tyler did not raise a Blakely claim in the
superior court until he filed his 35(a) motion. Therefore, he
must now show that Judge Hensleys decision to sentence Tyler
based on the two conceded aggravators without submitting them to
a jury is plain error.6
The State argues that Blakely claims, such as Tylers,
are not properly brought in a Rule 35(a) motion because Rule
35(a) protects against illegal sentences. According to the
State, Tyler is challenging only the manner in which the sentence
was imposed (i.e. without a jury finding aggravators), and not
the legality of the actual sentence. In Bishop v. Anchorage,7 we
recognized that the term illegal sentence is narrowly construed
to apply only to sentences the judgment of conviction did not
authorize.8 We found that, to constitute an illegal sentence for
the purposes of Rule 35(a), the sentence itself must be illegal,
not the manner in which it was imposed.9 But we need not resolve
this issue, because Tyler is not able to show plain error.
First, we address Tylers claim that his sentence was
unconstitutional under Blakely because the two aggravators Judge
Hensley used to increase his sentence were not found by a jury.
Under Alaskas pre-2005 presumptive sentencing laws, because Tyler
was convicted of a class C felony and had two prior felony
convictions, Tyler faced a 3-year presumptive term. If Judge
Hensley had not found the aggravators (based on Tylers concession
that they applied), the 3-year presumptive term would have been
the maximum term Judge Hensley could impose for felony driving
under the influence.
Under Blakely, a defendant normally has a right to jury
trial, and a right to demand proof beyond a reasonable doubt,
whenever the defendants sentencing ceiling hinges on disputed
issues of fact.10 But, Blakely exempts from this rule issues of
fact that are based on a defendants prior convictions.11
Although aggravator AS 12.55.155(c)(21) may be proved
by evidence of uncharged criminal conduct, in the present case
the State relied solely on Tylers six prior convictions for
driving under the influence. We held in Grohs v. State12 that,
when a defendants maximum sentence hinges on the defendants prior
convictions, at least when the defendant does not dispute the
fact of those prior convictions, a sentencing judge can rely on
the prior convictions without submitting them to a jury.13 Here,
because Tyler did not dispute the existence of his prior
convictions for driving under the influence, Judge Hensley
properly found aggravator (c)(21) without submitting the issue to
a jury.
In addition to aggravator (c)(21), Tyler also conceded
aggravator (c)(20) that he was on felony parole or probation at
the time of his current offense. Tyler argues that, under
Blakely, aggravator (c)(20) must be submitted to a jury. He
contends that the right to jury trial stems from the fact that,
when a defendants parole or probation arises from an out-of-state
conviction, the sentencing court will sometimes be required to
make a ruling regarding the elements of the out-of-state offense,
and whether those elements are similar to the elements of a
felony offense under Alaska law. Tyler argues that, under
Blakely, such issues must be submitted to a jury.
We are not sure that this is true. The issues
discussed in the previous paragraph appear to be issues of law,
not issues of fact. But in any event, all of Tylers prior
convictions occurred in Alaska, so his case does not raise the
problem he describes. Moreover, Tyler did not dispute
that he was on felony parole or probation at the time of his
present offense. We have repeatedly held that, when the evidence
establishing an aggravator is undisputed, and there is no
reasonable possibility that a jury would find in the defendants
favor on the aggravator, any potential Blakely error in failing
to submit the aggravator to a jury is harmless beyond a
reasonable doubt and, thus, does not constitute plain error.14
Tylers case is controlled by this rule.
Tyler further argues that Almend rez-Torres v. United
States15 the Supreme Court decision that exempts a defendants
prior convictions from the requirement of a jury trial under
Blakely has now become questionable authority.
Almend rez-Torres was a five-to-four decision.
Recently, in Shepard v. United States,16 Justice Thomas suggested
that Almend rez-Torres has been eroded by this Courts subsequent
Sixth Amendment jurisprudence, and [that] a majority of the Court
now recognizes that Almend rez-Torres was wrongly decided.17
Because Justice Thomas was a member of the five-judge majority in
Almend rez-Torres, Tyler argues that it is now only a matter of
time before the Supreme Court renounces Almend rez-Torres and
eliminates the Blakely exception for prior convictions.
Tyler urges us to anticipate this change in the law and
declare that, even when an aggravator is proved by a defendants
prior convictions, the aggravator must be submitted to a jury.
But the United States Supreme Court has cautioned lower courts
that they should not deviate from Supreme Court precedent, even
when the Supreme Courts later decisions seemingly invalidate that
precedent or call it into question:
[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, [a] Court of Appeals should
follow the case which directly controls,
leaving to this Court the prerogative of
overruling its own decisions.18
It is obvious that Justice Thomass
concurrence in Shepard casts doubt on the
continuing validity of the prior conviction
exception. Nevertheless, all of the courts
that have confronted this issue have
concluded that they are bound by Supreme
Court precedent i.e., bound by the prior
conviction exception applied in Apprendi and
Blakely unless and until the United States
Supreme Court actually modifies or eliminates
this exception.19
In light of the case law we have
just discussed, Judge Hensley did not commit
error when he relied on the prior conviction
exception in Blakely. This exception
continues to be the law of the land unless
and until the United States Supreme Court
expressly abandons or modifies it.
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 28.35.030(n), AS 28.35.032(p), and AS 28.15.291(a)(1),
respectively.
3 See former AS 12.55.125(e)(2).
4 Tyler v. State, Alaska App. Memorandum Opinion and Judgment
No. 4820 at 2-3 (Jan. 28, 2004), 2004 WL 178715 at *1.
5 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
6 See Paige v. State, 115 P.3d 1244, 1248 (2005).
7 685 P.2d 103 (Alaska App. 1984).
8 Id. at 105.
9 Id. at 105 n.3 (internal citations omitted).
10 Blakely, 542 U.S. at 301, 124 S. Ct. at 2536-37.
11 Id. at 301-03, 124 S. Ct. at 2537.
12 118 P.3d 1080 (Alaska App. 2005).
13 Id. at 1083. See also Milligrock v. State, 118 P.3d 11, 15
(Alaska App. 2005).
14 See Snelling v. State, 123 P.3d 1096, 1099 (Alaska App.
2005); Milligrock, 118 P.3d at 17.
15 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
16 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).
17 Shepard, 125 S. Ct. at 1264 (Thomas, J., concurring).
18 Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997,
2017, 138 L. Ed. 2d 391 (1997) (quoting Rodr¡guez de Quijas v.
Shearson / American Express, Inc., 490 U.S. 477, 484, 109 S. Ct.
1917, 1921-22, 104 L. Ed. 2d 526 (1989)).
19See United States v. Rodr¡guez-Montelongo, 263 F.3d 429, 434
(5th Cir. 2001) (declaring that it is a court of
appeals duty to apply the law as it exists, and that it
is solely the prerogative of the Supreme Court to
overrule its precedent if it chooses); United States v.
Davis, 260 F.3d 965, 969 (8th Cir. 2001) (It is our
role to apply Supreme Court precedent as it stands, and
not as it may develop.); United States v. Losoya-
Manc¡as, 332 F. Supp. 2d 1261,1265 (D. N.D. 2004);
United States v. Gebele, 117 F. Supp. 2d 540, 548-49
(W.D. Va. 2000) (the fact that a majority of the
Supreme Court may have expressed doubt as to the
validity of the prior conviction exception does not
affect its status as controlling law; a lower court
cannot ignore Supreme Court precedent by simply
counting Justices or 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 that even though recent
decisions have cast doubt on the continuing validity of
this exception, it is solely the Supreme Courts
prerogative to overrule its own decisions, and thus
other courts are bound to follow the law as it
currently exists).
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