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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-8977 | |
| Petitioner, | ) Trial Court No. 3AN-02-11320 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| CHARLES E. HERRMANN, | ) |
| ) | |
| Respondent. | ) No. 2058 August 4, 2006 |
| ) | |
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Michael
L. Wolverton, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Petitioner. Quinlan Steiner (the
brief) and Daniel Lowery (oral argument),
Assistant Public Defenders, and Barbara K.
Brink and Quinlan Steiner, Public Defenders,
Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Charles E. Herrmann has been convicted, but not yet
sentenced, for the crimes of first-degree vehicle theft, felony
driving under the influence, and felony refusal to submit to a
breath test.1 He is subject to presumptive sentencing under the
pre-March 2005 version of Alaskas presumptive sentencing law.
The superior court has ruled that the pre-2005 presumptive
sentencing law is so constitutionally flawed that it must be
thrown out in its entirety leaving Alaska with a scheme of
indeterminate sentencing within the statutory range of punishment
specified in AS 12.55.125(c), (d), (e), and (i) for each class of
felony.
It is true that Alaskas pre-2005 presumptive sentencing
law is flawed in certain respects. Specifically, some of the
provisions of the pre-2005 sentencing law do not comply with the
right to jury trial under the Sixth Amendment to the United
States Constitution as interpreted in Blakely v. Washington, 542
U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). But as we
explain here, these flaws do not affect Herrmanns sentencing in
this case. Because Herrmann has not shown that he is prejudiced
by any of the Blakely flaws in our pre-2005 presumptive
sentencing law, the superior court decided a purely hypothetical
controversy when it declared the entire pre-2005 presumptive
sentencing law to be unconstitutional. For this reason, we
vacate the superior courts decision.
Background facts
In advance of Herrmanns trial for vehicle
theft, driving under the influence, and breath test
refusal, the State gave notice that it intended to
pursue three of the aggravating factors listed in AS
12.55.155(c) in the event that Hermann was convicted:
(c)(6) that Herrmanns conduct created a risk of
imminent physical injury to three or more persons;
(c)(8) that Herrmanns criminal history included
aggravated or repeated instances of assaultive conduct;
and (c)(21) that Herrmanns criminal history included
repeated instances of criminal conduct similar to the
conduct for which he was currently being prosecuted.
Responding to the States notice of
aggravators, Herrmanns attorney argued that, under
Blakely, Herrmann had a right to a jury trial on these
proposed aggravators. Attempting to avoid a Blakely
problem, the State then declared (1) that it would
abandon proposed aggravator (c)(6) (risk of injury to
three or more people) and (2) that it would confine its
proof of aggravators (c)(8) and (c)(21) to Herrmanns
prior criminal convictions so as to fall within the
Blakely exception for prior convictions.
(According to the information contained in
the States pleading, Herrmann has seven prior
convictions for assault and twelve prior convictions
for DUI, as well as one prior conviction for vehicle
theft.)
Herrmanns attorney continued to object to the
States aggravators. Although the defense attorney did
not dispute the existence of Herrmanns past convictions
set forth in the States pleading, the defense attorney
argued that the Blakely exception for prior convictions
merely allows a sentencing court to take notice of the
number of a defendants prior convictions, not the
nature of those convictions (i.e., not the fact that a
conviction was for assault or DUI). The defense
attorney also argued that Herrmann was entitled to have
a jury decide whether these several past convictions
for assault and DUI constituted repeated instances of
the behavior specified in the two aggravators i.e.,
whether Herrmanns seven prior convictions for assault
constituted repeated instances of assaultive behavior,
and whether Herrmanns twelve prior convictions for DUI
constituted repeated instances of conduct similar to
the conduct for which Herrmann was currently being
prosecuted.
Superior Court Judge Michael L. Wolverton
declined to decide these issues regarding the proper
scope of the Blakely exception for prior convictions.
Instead, he declared that Alaskas pre-2005 presumptive
sentencing law was incurably inconsistent with Blakely
and should, therefore, be thrown out in its entirety.
Judge Wolverton indicated that Herrmann would
be subject to indeterminate sentencing within the range
of 0 to 5 years imprisonment specified in
AS 12.55.125(e) for class C felonies. (Each of
Herrmanns offenses is a class C felony.2) The judge
also indicated that he would rely on the sentencing
factors listed in AS 12.55.155(c)-(d) as guides for
selecting a proper sentence within that range.
Following this ruling and following Herrmanns
conviction, the State petitioned this Court to review
the superior courts decision.
The superior court decided a question of constitutional
law that is not raised in Herrmanns case
Since the time that Judge Wolverton issued
his order in this case, we have decided several Blakely
cases. Some of our decisions have special relevance to
Herrmanns case. In particular, we have held that when
(as in Herrmanns case) the State proposes aggravators
(c)(8) and (c)(21), there is no Blakely problem so long
as the State limits its proof to the defendants prior
convictions (at least when the defendant does not
dispute the existence of those prior convictions). See
Walsh v. State, 134 P.3d 366, 374 (Alaska App. 2006)
(The States proof of aggravators (c)(21) and (c)(8)
rested on Walshs uncontested prior criminal
convictions. Under these circumstances, both
aggravators fell within the Blakely exception for a
defendants prior convictions. Thus, [the superior
court] was not obligated to submit these two
aggravators to a jury.); Grohs v. State, 118 P.3d 1080,
1084 (Alaska App. 2005) (holding that when aggravator
(c)(21) is based on a defendants uncontested prior
convictions, the Blakely exception for prior
convictions applies, and the aggravator need not be
submitted to a jury); Milligrock v. State, 118 P.3d 11,
16 (Alaska App. 2005) (holding the same with respect to
aggravator (c)(8)).
In Herrmanns case, the State alleges that
aggravator (c)(8) is established by Herrmanns seven
prior convictions for assault, and that aggravator
(c)(21) is established by Herrmanns twelve prior
convictions for driving under the influence. When
Herrmann responded to these two proposed aggravators in
the superior court, he did not dispute the existence of
these prior convictions. Rather, he argued that
Blakely did not allow the State to rely on these prior
convictions to establish the (c)(8) and (c)(21)
aggravators without submitting those aggravators to a
jury.
Given our decisions in Walsh, Grohs, and
Milligrock, it is now clear that Herrmanns argument was
wrong. In other words, consistent with Blakely, the
State can use Herrmanns undisputed prior convictions to
prove aggravators (c)(8) and (c)(21) without the need
to submit these aggravators to a jury. Thus, Herrmanns
case does not present a Blakely problem.
At oral argument, Herrmanns attorney
suggested that Herrman might now wish to dispute the
existence of these prior convictions, even though he
has not disputed their existence up to this point. But
whatever strategy Herrmann may wish to adopt in the
future is not pertinent to our decision now.
We granted review in this case to resolve the
question of whether, on the record before him, Judge
Wolverton was justified in declaring the entire pre-
2005 presumptive sentencing scheme unconstitutional.
Our recent Blakely decisions demonstrate that, so long
as Herrmann does not dispute the existence of the prior
convictions that the State is relying on, Judge
Wolverton can rule on the States two proposed
aggravating factors, and can sentence Herrmann under
the pre-2005 version of our presumptive sentencing law,
without violating Blakely.
To the extent that Judge Wolverton believed
that the pre-2005 presumptive sentencing law was so
irreconcilable with Blakely that it needed to be thrown
out in toto, the fact remains that Herrmann has not
shown that he has been prejudiced by our sentencing
laws departure from Blakely. Thus, the issue of the
overall constitutionality of our pre-2005 presumptive
sentencing law is not presented in Herrmanns case.
Because Herrmann has not shown that his Sixth
Amendment rights are being violated by application of
the pre-2005 sentencing law to him, Judge Wolvertons
ruling that Alaskas pre-2005 sentencing scheme is
unconstitutional, and that it must be struck down in
its entirety, amounts to an advisory opinion on an
issue that is not presented by Herrmanns case.
We acknowledge that when Judge Wolverton made
his ruling, several pertinent aspects of Blakelys
application to our pre-2005 sentencing law remained
unresolved, and it may have appeared that Blakely posed
an insoluble problem for the sentencing proceedings in
Herrmanns case. But since the time of Judge Wolvertons
ruling, we have issued several decisions addressing the
relationship between Alaskas pre-2005 sentencing law
and the right to jury trial announced in Blakely.
These decisions have clarified the legal landscape. In
particular, they have clarified the application of
Blakelys prior conviction exception to cases like
Herrmanns.
Conclusion
The decision of the superior court declaring
Alaskas pre-2005 presumptive sentencing law
unconstitutional and reinstating indeterminate
sentencing is VACATED. The superior court shall
sentence Herrmann under the pre-2005 statutes,
modifying any procedures as necessary to comply with
Blakely.
_______________________________
1AS 11.46.360(a)(1), AS 28.35.030(n), and AS 28.35.032(p),
respectively.
2See AS 11.46.360(c) (first-degree vehicle theft is a class
C felony); AS 28.35.030(n) (felony DUI is a class C felony);
AS 28.35.032(p) (felony breath test refusal is a class C
felony).
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