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before the opinion is published in the Pacific
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STEVEN CLEVELAND, | ) |
| ) Court of Appeals No. A-9054 | |
| Appellant, | ) Trial Court No. 2KB-00-726 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2060 August 25, 2006 |
| ) | |
Appeal from the Superior Court, Second Judi
cial District, Kotzebue, Richard H. Erlich,
Judge.
Appearances: Robert D. Lewis, Lewis &
Thomas, Nome, 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.
MANNHEIMER, Judge.
During the weekend of November 17-19, 2000, Steven
Cleveland forcibly sexually penetrated his female cousin through
her rectum with an object that was some four to six inches in
diameter. In doing so, Cleveland inflicted serious and lasting
internal injuries on his cousin. For this conduct, Cleveland was
convicted of both second-degree sexual assault and second-degree
assault.1 Cleveland was also convicted of one other felony:
manufacturing alcoholic beverages without a license in a commu
nity that had voted to ban alcoholic beverages.2 We affirmed
Clevelands three felony convictions and his 19-year composite
term of imprisonment in Cleveland v. State, 91 P.3d 965 (Alaska
App. 2004).
Three months after we affirmed Clevelands convictions,
Cleveland filed a motion in the superior court under Alaska
Criminal Rule 35(a), claiming that his sentence was illegal. In
his motion, Cleveland argued that he had been sentenced in
violation of his right to a jury trial under the Sixth and
Fourteenth Amendments to the United States Constitution, as
interpreted by the United States Supreme Court in Apprendi v. New
Jersey and Blakely v. Washington.3 See also Booker v. United
States.4 As we explain in more detail below, Clevelands motion
was based on the fact that his case was governed by presumptive
sentencing. Cleveland asserted that the sentencing judge
improperly increased his presumptive terms of imprisonment based
on aggravating factors that should have been (but were not)
presented to a jury.
The superior court denied Clevelands motion, and
Cleveland now appeals the superior courts decision. We conclude
that Clevelands sentencing procedures did not violate the right
to jury trial as interpreted in Blakely. Our reasoning has two
steps.
First, as we explain here, the superior court relied on
seven aggravating factors listed in AS 12.55.155(c) when the
court sentenced Cleveland. Of these seven aggravators, three
were based on Clevelands prior criminal convictions: (c)(7)
that Cleveland had a prior conviction for a felony that was of a
more serious class than his current felonies; (c)(8) that
Cleveland had a history of repeated assaultive behavior; and
(c)(18)(B) that Cleveland had committed a prior sexual assault
on another victim. Under Blakely, aggravating factors based on a
defendants prior criminal convictions need not be presented to a
jury. Moreover, another two aggravators (c)(1) (infliction of
physical injury) and (c)(5) (particularly vulnerable victim)
flowed directly from the jurys verdicts at Clevelands trial.
Thus, even after Blakely, the superior court could properly rely
on these aggravators.
Second, under the pre-2005 version of AS 12.55.155(a),
any one of these five aggravating factors, standing alone, was
sufficient to empower the superior court to exceed the applicable
presumptive term and sentence Cleveland to any term of
imprisonment up to the maximum provided by law for his offenses.
Once the judge found any one of these Blakely-compliant
aggravators, the presence or absence of the other aggravators did
not affect the judges sentencing authority under Alaskas
presumptive sentencing law.
In sum, the superior court had the authority to impose
Clevelands sentences without submitting any further factual
issues to a jury. For this reason, the court correctly denied
Clevelands Rule 35(a) motion.
A more detailed look at Clevelands sentencing
Because Cleveland had been convicted of two
felonies before he committed the crimes in this case,
he faced sentencing as a third felony offender under
Alaskas presumptive sentencing law. And because
Cleveland was a third felony offender, he faced
presumptive terms for each of his three offenses in
this case. Under the pre-2005 version of Alaskas
presumptive sentencing law (or, more precisely, under
the version of the presumptive sentencing law that was
in effect until March 22, 2005),5 Cleveland was subject
to a 6-year presumptive term of imprisonment for the
offense of second-degree sexual assault, another 6-year
presumptive term of imprisonment for the offense of
second-degree assault, and a 3-year presumptive term
for the alcohol violation.6
At Clevelands sentencing hearing, the State
proposed eight aggravating factors under AS
12.55.155(c): (c)(1) that Clevelands victim sustained
physical injury; (c)(2) that Cleveland demonstrated
deliberate cruelty to the victim; (c)(4) that
Cleveland used a dangerous instrument in furtherance of
the offense; (c)(5) that Cleveland knew that his
victim was particularly vulnerable; (c)(7) that one of
Clevelands prior felonies was of a more serious class
of offense than his present crimes; (c)(8) that
Clevelands criminal history included aggravated or
repeated instances of assaultive conduct; (c)(10) that
Clevelands conduct in committing the physical assault
was among the most serious within the definition of
that offense, because Clevelands conduct actually
amounted to first-degree assault; and (c)(18)(B) that
Cleveland had committed another sexual assault
involving another victim.
Cleveland conceded five of these factors:
(c)(1), (c)(5), (c)(7), (c)(8), and (c)(18)(B).
Superior Court Judge Richard H. Erlich concluded that
the State had failed to prove proposed aggravator
(c)(2), but he found that the State had proved the
remaining two aggravators: (c)(4) use of a dangerous
instrument, and (c)(10) conduct among the most serious
within the definition of the offense.7
Based on these seven aggravators, Judge
Erlich sentenced Cleveland to serve 10 years (the
maximum term of imprisonment) for second-degree sexual
assault and another 10 years (again, the maximum term
of imprisonment) for second-degree assault. Judge
Erlich also sentenced Cleveland to serve 5 years
(again, the maximum term of imprisonment) for the
alcohol violation. However, Judge Erlich made these
sentences partially concurrent, so that Clevelands
composite term of imprisonment was 19 years rather than
25 years.8
The United States Supreme Courts decisions in Apprendi
v. New Jersey, Blakely v. Washington, and Booker v.
United States
In Apprendi v. New Jersey, the United States
Supreme Court held that when the maximum sentence for a
defendants crime hinges on an issue of fact other than
the defendants prior criminal convictions, that issue
of fact must be presented to, and decided by, a jury.9
In Blakely v. Washington and Booker v. United States,
the Supreme Court extended this principle to the issues
of fact that determine a defendants maximum sentence
under a presumptive sentencing or other determinate
sentencing scheme.10
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.11
In several recent decisions, this Court has
acknowledged that Alaskas pre-2005 presumptive
sentencing law violated the right to jury trial
announced in Blakely. Here, for instance, is what we
said about this issue in Milligrock v. State, 118 P.3d
11 (Alaska App. 2005):
Alaskas pre-2005 presumptive sentencing
laws are directly affected by the Blakely
decision because, under those laws, if a
felony defendant was subject to a presumptive
term of imprisonment, the superior court had
no authority to increase that term of
imprisonment (even by the addition of
suspended imprisonment) unless the State
proved one or more of the aggravating factors
listed in AS 12.55.155(c), or unless the
State proved extraordinary circumstances as
defined in AS 12.55.165.
. . .
Under Alaskas pre-2005 presumptive
sentencing law, proof of aggravating factors
(or proof of extraordinary circumstances)
expanded the range of sentences available to
the superior court (to the defendants
detriment). Blakely holds that, under such a
sentencing scheme, a defendant has the right
to a jury trial on these factors (with the
exception of prior convictions). But under
Alaskas pre-2005 presumptive sentencing laws,
all rulings on aggravating and mitigating
factors, and all rulings on extraordinary
circumstances (whether favoring the
government or the defendant), were made by
the sentencing judge. Thus, Alaskas pre-2005
presumptive sentencing laws provided for
sentencing procedures that violated the Sixth
Amendment as interpreted in Blakely.
Milligrock, 118 P.3d at 14-15.12
Nevertheless, as we explain in the next section of this
opinion, there was no Blakely problem with respect to five of the
seven aggravators that Judge Erlich relied on when he sentenced
Cleveland.
Three of the aggravating factors that Judge Erlich
relied on at Clevelands sentencing fall within the
Blakely exception for prior criminal convictions, and
two more of the aggravators necessarily follow from the
jurys verdicts
Aggravator (c)(7) was one of the aggravating
factors that Judge Erlich relied on in Clevelands case.
This aggravator applies when the defendant has a prior
conviction for a felony of a more serious class than
the defendants current offenses. In Milligrock, we
held that, because of the Blakely exception for prior
convictions, a defendant has no right to a jury trial
on aggravating factor (c)(7). Milligrock, 118 P.3d at
16. Thus, there was no Blakely error with respect to
aggravator (c)(7).
In addition, Milligrock holds that there is
no Blakely problem with aggravator (c)(8) the
aggravator that applies when a defendants criminal
history includes aggravated or repeated instances of
assaultive conduct if the States proof of this
aggravating factor rests on the defendants prior
convictions, rather than on unprosecuted (or
unsuccessfully prosecuted) acts of assault. Id. at 16.
In Clevelands case, the States proof of
aggravator (c)(8) was based on Clevelands prior
criminal convictions. As we noted in our decision of
Clevelands direct appeal, Cleveland was convicted of
second-degree assault in 1980 for attacking someone
with a screwdriver, and he also had several misdemeanor
assault convictions.13 For this reason, Judge Erlich
could properly find aggravator (c)(8) without
submitting the matter to a jury.
In addition, the analysis that we adopted in
Milligrock means that there is no Blakely problem with
respect to aggravating factor (c)(18)(B) the
aggravator that applies if the defendant has previously
committed another sexual assault so long as the States
proof of this aggravator is based on a prior criminal
conviction. It is true that Milligrock did not address
aggravator (c)(18)(B) directly. But Milligrocks
discussion of how the Blakely exception for prior
convictions applies to aggravator (c)(8) is equally
applicable to aggravator (c)(18)(B).
In Clevelands case, the States proof of
aggravator (c)(18)(B) was based on Clevelands prior
conviction for sexual assault. As we noted in
Clevelands prior appeal, Cleveland was convicted of
first-degree sexual assault in 1985 for raping his
sister-in-law.14 Thus, there was no Blakely error with
respect to aggravator (c)(18)(B).
Moreover, there was no Blakely error with
respect to aggravating factor (c)(1) that, during the
commission of the offense, the defendant directly
inflicted physical injury because this aggravator
necessarily followed from the jurys verdict finding
Cleveland guilty of second-degree assault.
The jury found Cleveland guilty of both
second-degree sexual assault and second-degree assault
based on the same incident. Because Cleveland was
convicted of second-degree assault under subsection
(a)(2) of AS 11.41.210, which requires proof that the
defendant caused serious physical injury, the jury
necessarily found that the victim of Clevelands assault
sustained physical injury during the sexual assault.
Accordingly, there was no Blakely error when Judge
Erlich relied on aggravator (c)(1) when sentencing
Cleveland for second-degree sexual assault.15
(The superior court apparently recognized
that aggravator (c)(1) applied only to Clevelands
conviction for second-degree sexual assault, and not to
Clevelands conviction for second-degree physical
assault. Under AS 12.55.155(e), this aggravator did
not apply to Clevelands conviction for second-degree
physical assault because infliction of physical injury
was an essential element of that offense.)
We acknowledge that Judge Erlichs reliance on
aggravator (c)(1) when sentencing Cleveland for second-
degree sexual assault apparently violated the rule that
we announced in Juneby v. State, 641 P.2d 823, 842-43
(Alaska App. 1982) the rule that a sentencing court
should not rely on an aggravating factor that is based
on conduct for which the defendant is being separately
sentenced. However, Cleveland has not raised this
issue; he is attacking his sentence solely on Blakely
grounds. Even though Judge Erlich may have violated
the Juneby rule, the judges action did not violate
Clevelands right to jury trial under Blakely.
For similar reasons, there was no Blakely
error with respect to aggravating factor (c)(5)
particularly vulnerable victim because this aggravator
necessarily followed from the jurys verdict finding
Cleveland guilty of second-degree sexual assault.
The State charged Cleveland with second-
degree sexual assault under AS 11.41.420(a)(3)(B); that
is, the State alleged that Cleveland engaged in sexual
penetration with the victim when he knew that she was
incapacitated. (The term incapacitated is defined in AS
11.41.470(2) as meaning temporarily incapable of
appraising the nature of ones own conduct or physically
unable to express unwillingness to act.) Thus, when
the jury convicted Cleveland of this crime, the jury
necessarily found that Cleveland knew that his victim
was incapacitated.
To prove aggravator (c)(5), the State had to
establish that Cleveland knew or reasonably should have
known that the victim of [his] offense was ... for any
... reason substantially incapable of exercising normal
physical or mental powers of resistance. Because the
jury found that Cleveland knew that his victim was
incapacitated (as that term is defined in AS
11.41.470(2)), it necessarily follows that Cleveland
knew that his victim was substantially incapable of
exercising normal physical or mental powers of
resistance.
In other words, because Clevelands
convictions for second-degree sexual assault and second-
degree assault were based on the same incident, and
because the second-degree sexual assault charge
required proof that Cleveland knew that his victim was
incapacitated, the jurys verdict necessarily entails a
finding of aggravator (c)(5) a finding that Cleveland
knew that his victim was substantially incapable of
exercising normal powers of resistance. Accordingly,
there was no Blakely error when Judge Erlich relied on
aggravator (c)(5).
(Again, as was the case with aggravator
(c)(1), the superior court apparently recognized that
aggravator (c)(5) applied to only one of Clevelands
convictions in this instance, his conviction for
second-degree physical assault. Under AS 12.55.155(e),
this aggravator did not apply to Clevelands conviction
for second-degree sexual assault because the victims
incapacity was an essential element of that offense.)
In sum, three of the seven aggravating
factors that Judge Erlich relied on when sentencing
Cleveland fall within the Blakely exception for prior
convictions, and two more of the aggravators are based
directly on the jurys verdicts.
Given the proof of at least one Blakely-compliant
aggravating factor, the presence or absence of other
aggravating factors is irrelevant for Blakely purposes
under Alaskas pre-2005 presumptive sentencing law
We have just explained why five of the seven
aggravators that Judge Erlich relied on when he
sentenced Cleveland pose no problem under Blakely. The
question that remains is whether Clevelands sentence
must nevertheless be invalidated because the remaining
two aggravating factors (c)(4) and (c)(10) arguably
rest on disputed issues of fact that are not resolved
by the jurys verdicts.
We say arguably because, under the facts of
Clevelands case, we believe that a reasonable argument
could be made to the contrary; that is, one might
possibly conclude that the facts underlying these two
aggravators use of a dangerous instrument, and conduct
among the most serious within the definition of the
offense flow directly from the jurys verdicts, and
that any remaining issues relating to these aggravators
are issues of law.16 But in the discussion that
follows, we will assume that aggravators (c)(4) and
(c)(10) rest on disputed issues of fact that were not
resolved by the jurys verdicts.
Blakely holds that when, under a states
sentencing laws, the upper limit of a judges sentencing
authority for a particular crime hinges on the proof of
facts aside from the defendants prior convictions, the
Sixth Amendment forbids the judge from relying on any
fact that has been neither (a) tried to a jury nor (b)
expressly admitted by the defendant.
[T]he statutory maximum [sentence] for
[Sixth Amendment] 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).
The specific problem presented in
the Blakely case itself was that, even though
Washington law provided a technical maximum
sentence for Blakelys crime, Blakelys
sentencing judge had no authority to impose
that maximum sentence unless the judge found
aggravating factors facts relating to the
defendants conduct or mental state, the
defendants criminal history, and other
circumstances surrounding the crime.
Because, as a practical matter, Blakelys
potential maximum sentence hinged on the
presence or absence of these additional
aggravating facts, the United States Supreme
Court held that Blakely had a Sixth Amendment
right to have a jury decide these issues of
fact. And, because Washington law did not
give Blakely a right to a jury trial on these
issues, the 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 the
aggravating factors.
As we explained earlier in this
opinion, Alaskas pre-2005 presumptive
sentencing law suffered from the same
constitutional flaw as the Washington
sentencing law at issue in Blakely.17 Under
our pre-2005 law, when a defendant was
subject to presumptive sentencing, the
sentencing judge could not exceed the
prescribed presumptive term of imprisonment
unless the State proved one or more of the
aggravating factors listed in AS
12.55.155(c), or unless the State proved
extraordinary circumstances as defined in
AS 12.55.165. All rulings on aggravating
factors and extraordinary circumstances were
made by the sentencing judge, not by a jury,
and the applicable standard of proof was
clear and convincing evidence, not beyond a
reasonable doubt. Thus, Alaskas pre-2005
presumptive sentencing law provided for
sentencing procedures that violated the Sixth
Amendment as interpreted in Blakely.
But although the prior sentencing
laws of Washington and Alaska both violated
the right to jury trial as interpreted in
Blakely, there was a substantial difference
in the structure of the two states sentencing
schemes.
Under Washingtons sentencing laws,
each aggravating factor required a separate
adjustment to the defendants sentence (or
range of sentences). Thus, the presence or
absence of each and every disputed
aggravating factor altered the judges
sentencing authority. But under Alaskas pre-
2005 sentencing laws, the proof of any single
aggravating factor gave the sentencing judge
the authority to impose any term of
imprisonment up to the statutory maximum.
Proof of additional aggravating factors did
not alter the range of sentences available to
the judge although these additional
aggravators would obviously be important to
the judges choice of sentence within that
sentencing range.
Blakely holds that a defendant is
entitled to a jury trial on any disputed
factual issue that will alter the maximum
sentence to the defendants detriment. Under
Washington law, that was every aggravating
factor because, regardless of what other
aggravating factors might be proved, each
individual aggravating factor called for a
separate adjustment of the defendants
sentencing range. But under pre-2005 Alaska
law, the defendants sentencing range did not
depend on each separate aggravator. Rather,
the crucial distinction was between (a) cases
where no aggravators were proved, and (b)
cases where at least one aggravator was
proved.
Because of this, we conclude that,
for cases governed by our states former
presumptive sentencing law (i.e., the
presumptive sentencing law that was in effect
until March 22, 2005), the defendants right
to jury trial under Blakely is satisfied if
there is at least one Blakely-compliant
aggravating factor i.e., at least one
aggravating factor that flows directly from
the jurys verdict, or is admitted by the
defendant, or is based on the defendants
prior convictions.
(a) The Washington sentencing laws that were at
issue in Blakely
Under pre-Blakely Washington law,18 every
criminal offense was assigned a seriousness level
from I (least serious) to XVI (aggravated
murder).19 Once the seriousness level of the
defendants crime was identified, the sentencing
judge consulted a sentencing grid20 to determine
the range of permissible sentences. For each of
the sixteen seriousness levels, this sentencing
grid provided ten potential sentencing ranges. To
identify which sentencing range applied, the judge
needed to determine the defendants offender score.
For example, the defendant in Blakely was
convicted of second-degree kidnapping.21 This offense
has a seriousness level of V.22 Here is the sentencing
grid for a level V offense:23
Offender Score
9
o
r
0
1
2
3
4
5
6
7
8
m
o
r
e
--------------------------------
-------------------------------------------------------
---------------
9m 13m 15m 18m 2y-2m 3y-2m 4y 5y
6y 7y
6m- 12+- 13m- 15m- 22m- 33m- 41m- 51m-
62m- 72m-
12m 14m 17m 20m 29m 43m 54m 68m
82m 96m
(In this grid, the bottom two rows specify the minimum
and maximum sentences of imprisonment in months for
each offender score; the upper row is the mid-point of
this range.)
To determine a defendants offender score, the
sentencing judge consulted a statute former RCW
9.94A.525 that laid out the rules for performing this
calculation. The defendant received points based on
the number of the defendants prior convictions, the
types of crime represented by those prior convictions,
and certain other aggravating factors. If the facts of
the defendants record were in dispute, the sentencing
judge resolved these issues of fact, applying a
preponderance of the evidence standard of proof.24
Once the defendants offender score was
determined, the defendant was subject to the
presumptive range of imprisonment specified in the
sentencing grid. For example, in Blakely, the
defendants offender score was 2 meaning that Blakely
faced a presumptive sentencing range of 13 to 17 months
imprisonment.25
However, another statute former RCW
9.94A.533(3) declared that the presumptive sentencing
range specified in the sentencing grid was to be
augmented by an additional amount of imprisonment if
the defendant or an accomplice was armed with a
firearm. In Blakelys case, this augmentation was 3
years (i.e., 36 months).26 This firearm augmentation
meant that Blakely faced a sentencing range of 49 to 53
months.
Moreover, yet another statute former RCW
9.94A.535 authorized sentencing judges to depart from
the prescribed sentencing range if the judge concluded
that there were substantial and compelling reasons
justifying an exceptional sentence. That is what
happened in Blakelys case. As explained by the United
States Supreme Court, after the sentencing judge heard
Blakelys wife describe the kidnapping, the judge
rejected the States recommendation and imposed an
exceptional sentence of 90 months in other words, a
sentence that exceeded the otherwise prescribed maximum
sentence by 37 months.27
(b) Alaskas pre-2005 sentencing laws
Alaskas pre-2005 sentencing statutes
established a series of presumptive terms of
imprisonment for second and third felony offenders
convicted of a class B or class C felony28 and for all
offenders convicted of a class A felony or convicted of
the unclassified felonies of first-degree sexual
assault or first-degree sexual abuse of a minor.29 In
the absence of aggravating and mitigating factors, the
sentencing judge was obliged to impose the prescribed
presumptive term, without any adjustment.30
Former AS 12.55.155(a) declared that if a
defendant was subject to presumptive sentencing, the
judge could increase the [prescribed] presumptive term
up to the maximum term of imprisonment [for that
offense] for factors in aggravation. But proof of even
a single aggravating factor was sufficient to empower
the superior court to exceed the applicable presumptive
term and impose any term of imprisonment up to the
maximum provided by law for the offense.31
Thus, Alaska took an all or nothing approach
to aggravating factors. If no aggravating factors were
proved, the judge was obliged to impose the presumptive
term. If only mitigating factors were proved, the
presumptive term became the ceiling on the judges
sentencing authority. But if one or more aggravating
factors were proved, the sentencing judge was empowered
to impose any sentence up to the maximum prescribed for
that offense.
(c) The effect of Blakely on the proof of
aggravating factors under Alaskas pre-2005
sentencing scheme
The basic principle underlying the Supreme
Courts decisions in Apprendi v. New Jersey and Blakely
v. Washington is that the Sixth Amendment forbids a
legislature from enacting a scheme that removes the
jury from the determination of a fact that, if found,
exposes [a] criminal defendant to a penalty exceeding
the maximum he [might] receive if punished according to
the facts reflected in the jury verdict alone.32
This principle limits the states ability to
fashion determinate sentencing schemes, but it does not
alter the states ability to fashion indeterminate
sentencing schemes i.e., sentencing schemes in which
the judge has the discretion to impose any term of
imprisonment within a specified range of sentences. As
this Court explained in Carlson v. State, 128 P.3d 197,
207 (Alaska App. 2006), a sentencing judge does not
violate the Sixth Amendment [as interpreted in Blakely]
when the judge engages in fact-finding when choosing a
sentence within [a] specified range.
Blakely does not regulate or restrict a
sentencing judges traditional consideration of the many
factors that potentially affect the selection of a case-
appropriate sentence within the applicable statutory
bounds. Rather, Blakely addresses a defendants right
to a jury trial on the factual issues that establish
those applicable sentencing bounds.
Here is how Justice Scalia, writing in
Blakely, explained this distinction:
Indeterminate sentencing ... increases
judicial discretion, ... but not at the
expense of the jurys traditional function of
finding the facts essential to 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 2450
(emphasis in the original).33
Thus, Blakely limits the types of
determinate sentencing that states may adopt:
if the maximum term of imprisonment within a
sentencing judges authority hinges on a
question of fact (other than the defendants
prior convictions), the defendant is entitled
to have a jury decide that question of fact
(and is also entitled to demand that the
government prove this fact beyond a
reasonable doubt). But Blakely does not
affect judicial fact-finding within an
indeterminate sentencing scheme.
Alaskas pre-2005 sentencing laws
were a hybrid of determinate and
indeterminate sentencing.
When no aggravating or mitigating
factors were proved, the law declared that
the defendant should receive a specific
penalty: the prescribed presumptive term.
And if one or more mitigating factors were
proved, but no aggravating factors, this
presumptive term became the effective ceiling
on the judges sentencing authority (with the
judge authorized to impose a lesser
sentence).
But if at least one aggravating
factor was proved, there was no longer a
constraint on the defendants maximum
sentence. Upon proof of any aggravator, the
judge had the authority to impose any term of
imprisonment up to the maximum punishment
prescribed for that offense. At that point,
Alaska sentencing became indeterminate with
regard to the defendants maximum sentence.
As we noted in Simon v. State, 121
P.3d 815, 820 (Alaska App. 2005), several
states with analogous presumptive sentencing
schemes have held that, once at least one
aggravating factor has been proved in
conformity with Blakely (thus establishing
the sentencing judges authority to impose a
sentence within a higher range), Blakely is
satisfied and any further fact-finding can be
done by the sentencing judge. See State v.
Mart¡nez, 115 P.3d 618, 625-26 (Ariz. 2005);
L¢pez v. People, 113 P.3d 713, 731 (Colo.
2005); Teeters v. State, 817 N.E.2d 275, 279
(Ind. App. 2004).
The Arizona Supreme Courts decision
in State v. Mart¡nez is particularly
instructive.
In Arizona, under the sentencing
statutes in force at the time of Mart¡nezs
sentencing, the proof of a single aggravating
factor authorized the sentencing judge to
exceed the applicable presumptive sentence
for a given offense.34 In Mart¡nez, the
sentencing judge found eight aggravating
factors using a preponderance of the evidence
standard an apparent multiple violation of
Blakely.
But the Arizona Supreme Court
concluded that at least one of these
aggravating factors was Blakely-compliant
because it was implicit in the jurys verdict.
And because, under Arizona law, the existence
of this one Blakely-compliant aggravator
authorized the sentencing judge to impose any
term of imprisonment up to the statutory
maximum for Mart¡nezs crimes, the Arizona
Supreme Court concluded that Blakely did not
limit the sentencing judges consideration of
the other aggravating factors when deciding
what sentence to impose within this
sentencing range.35 The court explained:
The Sixth Amendment requires that a jury
find beyond a reasonable doubt, or a
defendant admit, any fact (other than a prior
conviction) necessary to establish the range
within which a judge may sentence the
defendant. If, however, additional facts are
relevant merely to the exercise of a judges
discretion in determining the specific
sentence to impose on a defendant within a
given statutory sentencing range, the Sixth
Amendment permits the judge to find those
facts by a preponderance of the evidence.
Mart¡nez, 115 P.3d at 625 (emphasis in the
original).
Alaskas pre-2005 sentencing laws
were written according to the same pattern as
the Arizona laws at issue in Mart¡nez, and we
conclude that the result reached by the
Arizona Supreme Court is also the correct
result under Alaskas pre-2005 sentencing
laws.
Under our pre-2005 sentencing laws,
the proof of a single aggravating factor
changed the defendants sentencing range, and
this change in the judges sentencing
authority was exactly the same regardless of
the number of aggravating factors proved.
Under such a sentencing scheme, Blakely
governed the proof of the aggravating factor
that altered the sentencing judges authority.
But once one or more Blakely-compliant
aggravating factors were proved, the
sentencing judge was empowered to impose any
sentence up to the statutory maximum. At
that point, the existence of other
aggravating factors might well influence the
judges selection of a particular sentence
within this authorized range but Blakely
does not affect this type of judicial fact-
finding.
Conclusion
In Clevelands case, the sentencing judge
found seven aggravating factors. At least five of
these aggravators were Blakely-compliant. Because
of this, it does not matter whether the remaining
two aggravators were Blakely-compliant. The
judges sentencing authority remained the same.
For these reasons, we conclude that the
superior court correctly denied Clevelands motion
for correction of sentence under Criminal Rule
35(a). The judgement of the superior court is
AFFIRMED.
_______________________________
1AS 11.41.420(a)(3)(B) and AS 11.41.210(a)(2), respectively.
2AS 04.11.010 and AS 04.16.200(b).
3Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000);
Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004).
4543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
5In SLA 2005, ch. 2 (effective March 23, 2005), the Alaska
legislature extensively revised our states presumptive
sentencing law in an effort to make it comply with Blakely.
6Cleveland, 91 P.3d at 981-82.
7Id. at 982.
8Id.
9Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.
10Blakely, 542 U.S. at 301-04, 124 S.Ct. at 2536-37.
11Id., 542 U.S. at 303-04, 124 S.Ct. at 2537.
12See also Moore v. State, 123 P.3d 1081, 1091 (Alaska App.
2005); Haag v. State, 117 P.3d 775, 782-83 (Alaska App. 2005).
13Cleveland, 91 P.3d at 981.
14Id.
15See Woods v. State, 667 P.2d 184, 187-88 (Alaska 1983)
(holding that, because physical injury to the victim is not
a necessary element of first-degree sexual assault, a judge
can properly consider aggravator (c)(1) when sentencing a
defendant for this crime).
16See Michael v. State, 115 P.3d 517, 519-520 (Alaska 2005).
17See, e.g., Moore v. State, 123 P.3d 1081, 1091 (Alaska
App. 2005); Milligrock v. State, 118 P.3d 11, 14-15
(Alaska App. 2005): Haag v. State, 117 P.3d 775, 782-83
(Alaska App. 2005).
18Revised Code of Washington, Chapter 9.94A the Sentencing
Reform Act of 1981.
19See RCW 9.94A.515, Table 2 (listing the crimes included
within each seriousness level).
20See RCW 9.94A.510, Table 1.
21Blakely, 542 U.S. at 298-99, 124 S.Ct. at 2534-35.
22See RCW 9.94A.515, Table 2.
23See RCW 9.94A.510, Table 1.
24Former RCW 9.94A.530(2) (the version in effect at the time
of Blakelys case). The pertinent part of this statute read:
Where the defendant disputes material facts, the court must
either not consider the fact or grant an evidentiary hearing
on the point. The facts shall be deemed proved at the
hearing by a preponderance of the evidence.
25Blakely, 542 U.S. at 299, 124 S.Ct. at 2535.
26Id.; former RCW 9.94A.533(3)(b).
27Blakely, 542 U.S. at 300, 124 S.Ct. at 2535.
28Former AS 12.55.125(d) and (e) (pre-2005 versions).
29Former AS 12.55.125(c) and 125(i) (pre-2005 versions).
30Milligrock v. State, 118 P.3d 11, 14 (Alaska App. 2005).
Each pertinent subsection of former AS 12.55.125 (pre-2005
version) declared that a defendant convicted of that
particular class of felony offense shall be sentenced to the
following presumptive terms, subject to adjustment as
provided in AS 12.55.155 12.55.175 (emphasis added) that
is, subject to adjustment for the aggravating and mitigating
factors listed in AS 12.55.155(c)-(d), or for extraordinary
circumstances as defined in AS 12.55.165.
31Reyes v. State, 978 P.2d 635, 641-42 (Alaska App. 1999).
32Apprendi, 530 U.S. at 482-83, 120 S.Ct. at 2359; see also
Blakely, 542 U.S. at 301, 124 S.Ct. at 2536.
33See also Harris v. United States, 536 U.S. 545, 565; 122
S.Ct. 2406, 2418; 153 L.Ed.2d 524 (2002), where the Supreme
Court declared that [sentencing judges] may impose the
minimum, the maximum, or any other sentence within the range
[authorized by the juries verdicts] without seeking further
authorization from those juries and without contradicting
Apprendi.
34Arizona Revised Statutes 13-702.
35Mart¡nez, 115 P.3d at 625-26.
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