|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-8914 | |
| Petitioner, | ) Trial Court No. 3AN-97-3317 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| MICHELE K. DAGUE, | ) |
| ) | |
| Respondent. | ) No. 2062 September 15, 2006 |
| ) | |
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Philip R.
Volland, Judge.
Appearances: Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Scott J. Nordstrand, Acting Attorney General,
and David W. M rquez, Attorney General,
Juneau, for the Petitioner. Elizabeth
Brennan and Quinlan Steiner, Assistant Public
Defenders, and Barbara K. Brink, Public
Defender, Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004), the United States Supreme Court held that
when the maximum sentence for a defendants crime hinges on an
issue of fact, aside from the defendants prior criminal
convictions, the Sixth Amendment to the United States
Constitution guarantees the defendant a right to jury trial on
this issue of fact, and a right to demand that the government
prove this fact beyond a reasonable doubt.1
Under the pre-March 2005 version of Alaskas presumptive
sentencing law, a sentencing judge was authorized to exceed the
prescribed presumptive term only if the State proved one or more
of the aggravating factors listed in AS 12.55.155(c), or proved
extraordinary circumstances as defined in AS 12.55.165. In our
post-Blakely decisions, we have repeatedly acknowledged that,
with the exception of aggravating factors based solely on a
defendants prior convictions, Alaskas pre-2005 presumptive
sentencing law violated the Sixth Amendment right to jury trial
recognized in Blakely because (1) the pre-2005 law declared that
aggravating factors were to be litigated to, and decided by, the
sentencing judge rather than a jury, and because (2) the States
burden of proof regarding these aggravating factors was clear and
convincing evidence rather than beyond a reasonable doubt.2
In the present case, we are asked to decide whether, if
Blakely entitles a defendant to a jury trial on an aggravating
factor listed in AS 12.55.155(c), the defendant likewise has a
right to demand grand jury indictment on that aggravating factor
either as a matter of federal law under Blakely and its
predecessor, Apprendi v. New Jersey,3 or under the grand jury
clause of the Alaska Constitution (Article I, Section 8).
In Apprendi and Blakely, the Supreme Court held that
any distinction between an element of the offense and a
sentencing factor does not alter a defendants right to jury trial
under the Sixth Amendment. That is, Apprendi and Blakely declare
that when a defendants maximum sentence hinges on an issue of
fact (other than a prior conviction), the defendant has a Sixth
Amendment right to trial by jury on that issue of fact
regardless of whether state law categorizes that issue of fact as
an element of the offense or as a sentencing factor.
The question now before us is whether, in states that
have presumptive sentencing laws, Blakely has completely erased
all legal distinctions between (1) elements of a crime and (2)
sentencing factors which, if proved, increase the upper range of
the judges sentencing authority. If, under Blakely, a defendant
is entitled to a jury trial on an issue of fact, must that issue
of fact be treated as an element of the crime for all purposes
including the right to grand jury indictment? Or does Blakely
allow the states to maintain procedural distinctions between
elements and sentencing factors, so long as the defendants Sixth
Amendment right to jury trial is honored?
For the reasons explained here, we conclude that the
latter formulation is the correct one. Blakely does not require
the states to abolish all procedural distinctions between
elements and sentencing factors. Moreover, as we also explain
here, this Court has repeatedly held that the aggravating factors
listed in AS 12.55.155(c) are not elements of the defendants
crime under Alaska law. We therefore conclude that, even though
a defendant may have a Sixth Amendment right to a jury trial on
an aggravating factor listed in AS 12.55.155(c), the defendant
does not have a right to grand jury indictment on that factor.
The procedural background of this litigation
Michele K. Dague was prosecuted for second-
degree murder when, in 1997, a ten-month-old infant in
her care died from massive head trauma. Dague
initially claimed that the baby had sustained these
injuries by falling from a couch, but Dague later
admitted at her trial that she had thrown the baby to
the floor.
Given Dagues concession that she had caused
the babys injuries, the issue litigated at Dagues trial
was her mental state when she did this. Dague was
charged with second-degree murder under AS
11.41.110(a)(2); that is, the State alleged that Dague
had acted with extreme indifference to the value of
human life. Dague asserted that she had acted
unthinkingly reflexively throwing the baby away from
her because the babys screams were exacerbating her
migraine headache.
The jury acquitted Dague of second-degree
murder but convicted her of the lesser offense of
manslaughter. In other words, the jury found that the
State had failed to prove that Dague acted with extreme
indifference to the value of human life, but the jury
nevertheless concluded that Dague had acted recklessly
regarding the possibility that her actions would cause
the infants death.4
This manslaughter verdict created a Blakely
issue. Under Alaska law, defendants convicted of
second-degree murder face indeterminate sentencing.5
Thus, if Dague had been convicted of second-degree
murder, the Blakely decision would not have affected
her sentencing for that crime.6 But under Alaska law,
defendants convicted of manslaughter face presumptive
sentencing.7 Under the pre-1999 version of Alaskas
presumptive sentencing law (the version in effect at
the time of Dagues offense), Dague (who was a first
felony offender) faced a presumptive term of 5 years
imprisonment.8
(In the superior court, the State took the
position that Dague was subject to a 7-year presumptive
term under AS 12.55.125(c)(2)(B). This statute imposes
a 7-year presumptive term on a first felony offender
convicted of manslaughter if [the defendants] conduct
... was knowingly directed towards a child under the
age of 16. But Dagues offense occurred in 1997, and AS
12.55.125(c)(2)(B) was not enacted until 1999.9
Accordingly, this sentencing provision can not be
applied to Dague.)
Dagues 5-year presumptive term was the
ceiling on the superior courts sentencing authority
unless the State proved one or more of the aggravating
factors listed in AS 12.55.155(c) in which case the
superior court would have had the authority to sentence
Dague to any term of imprisonment up to the statutory
maximum (20 years). See AS 12.55.155(a) (pre-2005
version) and AS 12.55.125(c) (establishing a sentencing
range of 0 to 20 years for class A felonies).
The jury returned its manslaughter verdict on
Friday, October 1, 2004. The State asked the superior
court to hold the jury until Monday so that the jury
could consider aggravating factors relevant to the
manslaughter conviction. In response, Dague argued
that the State was barred from pursuing aggravating
factors because none were alleged in the indictment.
She argued in the alternative that, even if aggravating
factors did not have to be pleaded in the indictment,
she nevertheless had received insufficient notice of
the States proposed aggravating factors.
Superior Court Judge Philip R. Volland
ordered the State to provide immediate notice of its
proposed aggravating factors, and he agreed to hold the
jury over until Monday at which time he would hear
arguments from the parties on two issues: whether
aggravators needed to be pleaded in the indictment, and
whether it was feasible to delay Dagues jury trial to
resolve the various legal issues surrounding the States
post-verdict proposal of aggravating factors.
On Monday, the State announced that it
intended to propose one aggravating factor: AS
12.55.155(c)(5) that Dague knew or should have known
that the victim of her crime was particularly
vulnerable.
Dague argued that, because of the United
States Supreme Courts decision in Blakely, she was
entitled to grand jury indictment on any aggravating
factor. Dague also contended that she was prejudiced
by the lack of pre-trial notice of the proposed
aggravator; she asserted that she had been unable to
plan her trial strategy so as to counter the proposed
aggravator, and she also asserted that the States post-
verdict notice of the aggravator hampered her ability
to make strategic decisions on how to prepare for
sentencing. Dague further argued that she was entitled
to have the same jury that decided her guilt also
decide the proposed aggravating factor, and she
contended that the States post-verdict notice of the
aggravator made it impracticable to hold the jurors any
longer. For all of these reasons, Dague asked the
superior court to discharge the jury and bar the State
from pursuing the proposed aggravator.
Judge Volland acceded to Dagues request to
discharge the jury, and he further ruled that the State
was barred from pursuing its proposed aggravator with
any later jury.
Judge Volland concluded that, under Alaska
law, a defendants indictment must allege whatever
aggravating factors the State intends to rely on in the
event that the defendant is convicted of an offense
governed by presumptive sentencing. Judge Volland
recognized that Dagues indictment charged her with
second-degree murder, an offense not governed by
presumptive sentencing, but the judge concluded that
the State should have anticipated that Dague would seek
jury instructions on the lesser offense of
manslaughter, an offense that is governed by
presumptive sentencing.
Judge Volland further concluded that Dague
would suffer substantial unfairness if her trial were
continued so as to allow litigation of the proposed
aggravating factor. Although Judge Volland agreed with
the State that the double jeopardy clause did not
necessarily preclude holding a separate jury trial on
the proposed aggravating factor, the judge concluded
that a separate trial would be unfair to Dague under
the particular circumstances of her case.
Specifically, Judge Volland concluded that, at this
second trial, Dague would probably wish to present more
testimony from the expert witnesses who, at trial, had
given testimony concerning Dagues mental state when she
injured the baby. Because these witnesses had already
left Alaska, and because it would be expensive to fly
them back, Judge Volland concluded that it would be
fundamentally unfair to require Dague to gear up for
another trial.
Judge Volland then set a sentencing date,
intending to sentence Dague to the applicable
presumptive term unless Dague proved one or more
mitigating factors under AS 12.55.155(d). We granted
the States petition to review Judge Vollands rulings.
The genesis of the grand jury issue: the adoption of
presumptive sentencing in Alaska
Before Alaskas current criminal code took
effect on January 1, 1980,10 Alaska adhered to a system
of indeterminate sentencing. For each criminal
offense, the legislature specified a range of sentences
(either in the statute defining the offense, or in the
statute immediately following).11 A sentencing judge
had the authority to impose any sentence within the
specified range.
In the late 1970s, the Alaska Legislature
began to reconsider the policy of indeterminate
sentencing. The legislatures action was prompted, in
part, by the Alaska Judicial Councils publication of a
statistical analysis of felony sentencing a study that
found significant patterns of apparent racial
disparities in sentences among many classes of felony
offenses.12
In 1978, when the legislature enacted a new
criminal code for Alaska, the legislature also revised
Alaskas sentencing law to include presumptive
sentencing.13 As expanded by a series of legislative
amendments and court decisions in the mid-1980s,14
Alaskas presumptive sentencing law imposed a
form of determinate sentencing on most felony offenders
although offenders convicted of the most serious
felonies (e.g., murder and kidnapping) still faced
indeterminate sentencing.
Alaska was not alone in moving toward
determinate sentencing and imposing limits on the
sentencing discretion of judges. As Justice OConnor
noted in her dissent in Blakely, the United States
Congress and numerous state legislatures had enacted
laws to limit the sentencing discretion of judges.15
These laws were based on the perception that
judges were met[ing] out an unjustifiably wide range of
sentences to offenders with similar histories [who
were] convicted of similar crimes, committed under
similar circumstances,16 and that these [sentencing]
disparities too often were correlated with
constitutionally suspect variables such as race.17
Some of these determinate sentencing laws
for example, the Federal Sentencing Guidelines and the
Washington sentencing laws at issue in Blakely imposed
narrow strictures on judges sentencing discretion,
based on a detailed formula that included various
aspects of the offenders prior record and the
circumstances of the offense. See our discussion of
this point in Cleveland v. State, __ P.3d __, Alaska
App. Opinion No. 2060 (August 25, 2006), slip opinion
at pp. 14-17; 2006 WL 2458578.
In contrast, Alaskas presumptive sentencing
law (in its pre-March 2005 version) was essentially a
hybrid of indeterminate and determinate sentencing. If
no aggravating factors and no mitigating factors were
proved, the judge had no authority to deviate from the
specified presumptive term of imprisonment. But if at
least one aggravating factor was proved, the sentencing
became upwardly indeterminate: the judge had the
authority to impose any term of imprisonment up to the
statutory maximum for that class of felony. And if at
least one mitigating factor was proved, the sentencing
became downwardly indeterminate: the judge had the
authority to go below the presumptive term. Cleveland,
__ P.3d at __, slip opinion at pp. 17-18 & 20.
This Courts pre-Blakely decisions holding that the
aggravating factors listed in AS 12.55.155(c) are not
elements of the offense
In three previous decisions Hartley v.
State,18 Kelly v. State,19 and State v. District
Court20 this Court has held that the aggravating and
mitigating factors listed in AS 12.55.155(c)(d) are not
elements of a defendants offense for purposes of
pleading. The State normally has the discretion to
charge a defendant with a less serious offense, or with
a less serious degree of offense, than the facts
support. But Hartley, Kelly, and State v. District
Court declare that the State has no discretion to
ignore or withhold the aggravating factors listed in
AS 12.55.155(c).21 Moreover, these cases declare that
a sentencing judge has an independent duty to take
account of aggravating factors even if the State has
not raised them (and a similar duty to take account of
mitigating factors even if the defendant has not raised
them).22 In other words, the aggravating and
mitigating factors are not elements that the State can
charge, or refrain from charging, in its discretion.
Even before our decisions in Hartley, Kelly,
and State v. District Court, the content and structure
of Alaskas criminal code (Title 11 of the Alaska
Statutes), as well as the content and structure of
Alaskas presumptive sentencing statutes in Title 12,
suggested that the Alaska Legislature did not intend
the aggravating factors listed in AS 12.55.155(c) to be
elements of the crimes defined in Title 11.
Chapters 41 through 76 of Title 11 contain
traditional definitions of criminal offenses. That is,
these chapters contain statutes that define various
criminal offenses in terms of a specified combination
of conduct, surrounding circumstances, and culpable
mental state(s). These same statutes then declare
whether the offense is a felony or a misdemeanor, and
of what class.
In contrast, the list of aggravating and
mitigating factors that apply to presumptive
sentencing, and the rules that govern a sentencing
courts application of those factors, are contained in
AS 12.55, the chapter of Title 12 dedicated to
sentencing. The aggravating and mitigating factors
apply without distinction to nearly all felonies all
felonies except the unclassified felonies listed in
AS 12.55.125(a) and (b), for which the legislature
retained indeterminate sentencing.
This statutory structure indicated that the
legislature did not view the aggravating and mitigating
factors listed in AS 12.55.155 as elements which, when
present, created higher or lesser degrees of the crimes
defined in Title 11. Rather, the aggravating and
mitigating factors were apparently viewed as sentencing
factors that applied across the board to the sentencing
of all felony offenders whose cases were governed by
presumptive sentencing.
In comparison, when the legislature wished a
mitigating factor to actually lower the degree of the
offense, the legislature addressed this matter in Title
11. See, for instance, the legislatures codification
of the heat of passion defense to murder,
AS 11.41.115(a), and the legislatures creation of a
lesser degree of kidnapping for offenders who
voluntarily release their victims unharmed, AS
11.41.300(d).
Nevertheless, soon after the enactment of
presumptive sentencing, this Court was asked to resolve
the question of whether the aggravating factors listed
in AS 12.55.155(c) should be deemed elements of the
offense.
This question was presented in Hartley v.
State, 653 P.2d 1052 (Alaska App. 1982). During
Hartleys sentencing, the judge noted that the facts of
Hartleys case appeared to establish an aggravating
factor that had not been raised by the prosecutor. The
judge then relied on this aggravator when sentencing
Hartley.23 On appeal, the State conceded that Hartley
should have been given advance notice of the judges
proposed aggravator, and a chance to respond to it.24
However, Hartley argued that the aggravating factor
could not be used at all.
Hartley contended that, under Alaskas
presumptive sentencing law, a sentencing judge has no
authority to raise an aggravating factor sua sponte.
The premise of Hartleys argument was that aggravating
factors should be viewed as elements that increase the
severity of a felony offense. Hartley took the
position that if the State, for whatever reason, failed
to raise a particular aggravating factor, a court had
no authority to inject this aggravating element into
the case.25
Hartley drew an analogy to cases such as
State v. Carlson, 555 P.2d 269, 271-72 (Alaska 1976)
(holding that a superior court judge has no authority
to accept a defendants plea to a lesser offense if the
State objects to the reduction of the charge); and
Public Defender Agency v. Superior Court, 534 P.2d 947,
950-51 (Alaska 1975) (holding that the superior court
has no authority to order the Department of Law to
initiate and pursue an action for civil contempt when
the Department has decided not to pursue the matter).
He contended that, under the rationale of these cases,
a sentencing judge should be barred from raising a new
element that is, a new aggravating factor if the
State failed to raise this factor.
Previous Alaska appellate decisions gave some
support to Hartleys argument in particular, his
contention that what appears to be a sentencing factor
can actually be an element of the offense.
In Donlun v. State, 527 P.2d 472 (Alaska
1974), the defendant was charged with burglary in a
dwelling house under Alaskas pre-1980 criminal code.
The statute at issue, former AS 11.20.080 (quoted in
its entirety in Donlun, 527 P.2d at 473 n. 2), declared
that the normal sentence for this felony was
imprisonment for not less than one nor more than 10
years. However, the statute then declared that if the
burglary was committed at nighttime, the maximum
punishment was imprisonment for 15 years; and if any
person was inside the dwelling during the burglary
(whether during the day or at night), the maximum
punishment was imprisonment for 20 years.
Although Donluns offense occurred at night,
and at a time when the dwelling was occupied, Donluns
indictment did not specify these facts. Nevertheless,
the sentencing judge noted that these aggravating
circumstances were present in Donluns case, and the
judge apparently concluded that, because of these
facts, Donlun could be sentenced to as much as 20 years
imprisonment.26
The Alaska Supreme Court concluded that the
sentencing judge had committed error by raising these
aggravating circumstances sua sponte. The court ruled
that, under Alaska law, the aggravating circumstances
specified in the burglary statute had to be treated as
elements of the offense. That is, these aggravating
circumstances had to be pleaded in the indictment and
proved at trial if the State wanted to subject a
burglary defendant to more than 10 years
imprisonment.27 The supreme court declared: [When] a
criminal statute provides for graded or enhanced ranges
of punishment for aggravated instances of the
proscribed offense, an indictment charging [that]
offense must specify the aggravating facts [if] the
defendant [is to be] exposed to an increased range of
punishment.28
Guided by the principle announced in Donlun,
this Court reached a similar decision in Post v. State,
635 P.2d 1194 (Alaska App. 1981). The defendant in
Post was indicted under the pre-1980 criminal code for
receiving or concealing stolen property.29
The statute at issue, former AS 11.20.350,
declared that this offense was a felony punishable by
imprisonment for not less than one year nor more than
three years if the stolen property exceeded $250 in
value, but the maximum punishment was only one years
imprisonment if the stolen property was worth $250 or
less. In other words, the lesser degree of this
offense was a misdemeanor.
Even though Posts indictment declared that he
was charged with the felony version of the offense, the
indictment did not specify that the stolen property
exceeded $250 in value. We concluded that Posts case
was governed by the supreme courts decision in Donlun,
and that Posts indictment was therefore not sufficient
to subject him to the felony penalty.30
But despite the supreme courts decision in
Donlun and this Courts own decision in Post, we
rejected Hartleys argument that the aggravating factors
listed in AS 12.55.155(c) should be treated as elements
of the offense. Instead, we concluded that these
statutory aggravating factors differed fundamentally
from the elements that might define greater and lesser
degrees of a particular offense:
The state has [the] discretion whether
or not to institute a prosecution[, and to
decide what degree of the offense to charge].
Once [the state] has obtained a conviction,
however, the legislature has established
specific guidelines governing [felony]
sentencing. ... The [legislatures] decision
to circumscribe [a courts] sentencing
discretion was in large part based upon a
legislative belief that greater uniformity in
sentencing should be sought and unjustified
disparity eliminated.
To allow the parties to ignore [a
defendants] past convictions or [to ignore]
aggravating and mitigating factors suggested
by the evidence at trial or disclosed in a
presentence report prepared by a probation
officer would be to encourage unjustified
disparity in sentencing. We therefore hold
that the state has no discretion to suppress
evidence of past convictions or aggravating
or mitigating factors.
Hartley, 653 P.2d at 1056.
Under Hartley, when a sentencing
judge perceives that aggravating or
mitigating factors apply in a presumptive
sentencing case, the judge must consider
these factors even if the parties have not
recognized their applicability or argued
their importance. Hartley holds that these
aggravating and mitigating factors are not
elements that the State, in the exercise of
its prosecutorial discretion, can choose to
pursue or ignore. Rather, to advance the
goal of eliminating unjustified disparities
in sentencing, the legislature requires
sentencing courts to consider these
aggravating and mitigating factors whenever
they are established by the record.
We addressed this issue again the
following year in Kelly v. State, 663 P.2d
967 (Alaska App. 1983). In Kelly, we
declared:
The legislature did not intend the
presumptive sentencing provisions of the
revised criminal code to be applied
optionally, at the discretion of the court or
the prosecution. The presumptive sentencing
structure is mandatory, and it must be
followed when it applies.
Kelly, 663 P.2d at 974. And we last revisited this issue in
State v. District Court, 53 P.3d 629 (Alaska App.
2002), where we reiterated that in cases governed by
presumptive sentencing, neither the prosecutor nor the
sentencing judge has the power to ignore a defendants
undisputed prior felony convictions or the existence of
plainly applicable aggravating or mitigating factors.31
To summarize this discussion: Our decisions in
Hartley, Kelly, and State v. District Court hold that the
aggravating and mitigating factors listed in AS 12.55.155(c)(d)
are not elements of the defendants offense for purposes of
pleading. The State has no discretion to ignore or withhold
aggravating factors. Moreover, a sentencing judge has an
independent duty to take account of aggravating factors even if
the State has not raised them, and the judge must likewise take
account of mitigating factors even if the defendant has not
raised them.
Admittedly, Hartley, Kelly, and State v. District Court
were all decided before Blakely. But unless Blakely now requires
a different rule, our decisions in Hartley, Kelly, and State v.
District Court remain binding law on the issue of whether the
aggravating factors listed in AS 12.55.155(c) constitute elements
of a defendants underlying felony offense for purposes of
pleading. In other words, unless Blakely requires a different
rule, the law in Alaska is that these aggravating factors are not
elements of a felony offense which must be pleaded in an
indictment.
The United States Supreme Courts decisions in Apprendi,
Blakely, and Booker the Courts adoption of a
functional test for assessing when the Sixth Amendment
guarantees defendants the right to a jury trial on a
particular issue of fact
In Apprendi v. New Jersey,32 the United
States Supreme Court held that, under the Sixth
Amendment to the United States Constitution, a criminal
defendant has the right to a jury trial, and to proof
beyond a reasonable doubt, on any issue of fact which,
if proved, will subject the defendant to a higher
maximum penalty.
Apprendi was a significant expansion of Sixth
Amendment rights. However, it was not a bolt from the
blue.
For decades, state legislatures had been
enacting statutes that either established a mandatory
minimum sentence or, alternatively, established a
higher maximum sentence based on a particular
aggravating circumstance usually, the defendants
possession or use of a firearm or other dangerous
weapon.33
Because of these sentencing statutes, many
state courts were asked to decide whether defendants
had a right to trial by jury on the aggravating
circumstance that triggered the mandatory minimum
sentence or that triggered the additional term of
imprisonment. We addressed this body of case law in
Huf v. State, 675 P.2d 268 (Alaska App. 1984).
In Huf, we cited the Kansas Court of Appealss
decision in State v. Kleber, 575 P.2d 900 (Kan. App.
1978), as an accurate summary of the decisions in this
area.34 The defendant in Kleber was subject to a
mandatory minimum term of imprisonment because he used
a firearm during the commission of his offense.35
Under Kansas law, the sentencing judge decided the
question of whether the defendant used a firearm.
Kleber argued that this law was unconstitutional that,
as a matter of due process, he was entitled to a jury
trial on this issue.36
In rejecting Klebers argument, the Kansas
court distinguished between (1) statutes that imposed a
mandatory minimum sentence, within the otherwise
applicable range of sentences, based on the defendants
possession or use of a firearm, and (2) statutes that
imposed an additional term of imprisonment, over and
above the otherwise applicable range of sentences,
based on the defendants possession or use of a firearm:
The cases [which hold that a defendant
is entitled to have a jury decide whether the
government has proved the aggravating
circumstance] concern statutes ... wherein an
additional and enhanced sentence may be
imposed upon a defendant who commits a crime
with a firearm. Such statutes frequently
provide that one who commits a felony with a
firearm may receive a separate sentence for
the use of the firearm in addition to
whatever sentence may be imposed for the
felony. In construing such statutes, [courts
hold] that the question as to whether a
firearm was used must be determined by the
trier of fact before the additional sentence
may be imposed [because these] statutes
define a new class of crimes by adding a new
element, use of a firearm, and the existence
of the new element requires an additional
finding of fact.
We believe [that the statute at issue
here] is distinguishable from those statutes
of other jurisdictions ... . [The Kansas
sentencing statute] has the effect of
imposing a mandatory minimum sentence for all
Article 34 crimes in which the defendant used
a firearm in the commission of the crime.
... While [our statute] limits the range of
authorized dispositions available to the
trial court in some instances, it does not
create a new class of crimes, add a new
element to the statutory definition of
already existing crimes, or provide for an
additional sentence. Use of a firearm under
the statute is not made an element of the
offense charged, and is only pertinent to the
authorized disposition the court may consider
in the event of a conviction.
Kleber, 575 P.2d at 904 (emphasis added).37
Compare the Oregon Supreme Courts
contemporaneous decision in State v. Wedge,
652 P.2d 773 (Or. 1982), construing a statute
that imposed a mandatory minimum sentence of
either 5, 10, or 30 years imprisonment
(depending on the defendants prior record) if
the defendant used or threatened to use a
firearm during the commission of a felony.38
This prescribed minimum term of imprisonment
applied even if the maximum sentence for the
underlying offense was less than the
specified minimum. In other words, this
sentencing statute increased the defendants
maximum penalty in many instances.39
The Oregon court held that, under
this statute, the defendants use of a firearm
constituted an element of the offense and,
thus, the defendant was entitled to a jury
trial on this issue:
Although the challenged statute is
denominated an enhanced penalty statute, in
effect it creates a new crime. The
[defendants] jury only considered ... the
question of first degree robbery, and [they]
convicted him of that offense, but the
defendant was [effectively] sentenced [for]
first degree robbery using a firearm. If the
legislature had actually described the crime
as first degree robbery using a firearm[,]
the use of a firearm would certainly be an
element and there would be no doubt [that
the] defendant would have a right to a jury
determination of [his] guilt. The
legislature cannot eliminate constitutional
protections by separating and relabeling [one
or more] elements of a crime.
Wedge, 652 P.2d at 778.
From our decision in Huf, the
Kansas decision in Kleber, and the Oregon
decision in Wedge, it is clear that, well
before the United States Supreme Court issued
its decision in Apprendi, state courts were
dealing with the question of whether a
criminal defendant had a right to trial by
jury on issues of fact that altered the
sentencing range to the defendants detriment.
Nevertheless, even though the issue presented
in Apprendi was not new, the Supreme Courts
analysis of this issue in Apprendi represents
a new direction in jury trial jurisprudence.
As can be seen from the decisions
in Huf, Kleber, and Wedge, state court
decisions before Apprendi analyzed this issue
by asking whether the sentence-enhancing
issue of fact was truly a sentencing factor
or whether, instead, it should be deemed an
element of what was, in effect, a higher
degree of the charged crime. In Apprendi,
the Supreme Court changed the legal landscape
by declaring that, for purposes of the Sixth
Amendment right to jury trial, this
distinction between sentencing factor and
element is irrelevant.
The defendant in Apprendi was
convicted under New Jersey law of possession
of a firearm for an unlawful purpose after he
fired several shots into the home of an
African-American family who had recently
moved into his neighborhood.40
The normal range of punishment for this
offense was imprisonment for between five
years and 10 years.41 However, under New
Jerseys hate crime law, Apprendi became
subject to an enhanced sentencing range of 10
to 20 years imprisonment after the sentencing
judge found that Apprendi acted for the
purpose of intimidating his victims because
of their race.42 Using this 10-
20 year sentencing range, the judge sentenced
Apprendi to 12 years imprisonment.43
Apprendi appealed his sentence,
arguing that he was entitled to have a jury
decide whether he had acted with the intent
to intimidate his victims on account of their
race. As we just explained in our discussion
of Huf, Kleber, and Wedge, most state courts
followed the rule of construction that issues
of fact which increased the defendants
maximum sentence should be deemed elements of
a higher degree of offense meaning that
defendants were entitled to a jury trial on
these issues. But when Apprendis case came
before the New Jersey Supreme Court, the New
Jersey court reached the opposite result:
they held that the hate crime law was merely
a sentence enhancement provision, and that
Apprendi therefore had no right to a jury
trial on the question of his motive for the
shooting.44
The United States Supreme Court
reversed the New Jersey decision because the
Supreme Court held that, under the Sixth
Amendment, defendants are entitled to a jury
trial, and to proof beyond a reasonable
doubt, on any fact (other than a prior
conviction) that increases the maximum
penalty for a crime.45
For present purposes, the most
important aspect of Apprendi is that the
Supreme Court refused to base its decision on
a sentencing factor / element dichotomy.
Writing for the majority, Justice
Stevens declared that using the label
sentence enhancement to describe [the effect
of the New Jersey hate crime law] does not
provide a principled basis for deciding
whether defendants are entitled to a jury
trial on the issues of fact raised by that
hate crime law.46
Justice Stevens noted that [a]ny
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 [when the Sixth Amendment
was enacted].47 However, Justice Stevens
acknowledged that [these] practices [might]
change and still remain true to the
principles of [the Constitution].48
Justice Stevens further
acknowledged that, in McMillan v.
Pennsylvania49 (a case in which the Supreme
Court upheld a statute that imposed a minimum
term of imprisonment based on facts found by
the sentencing judge), the Supreme Court
itself used the term sentencing factor to
refer to a fact that was not found by a jury
but that could affect the sentence imposed by
the judge.50 However, Justice Stevens
declared that the McMillan decision did not
budge from the position that serious
constitutional concern[s] are raised whenever
a state scheme ... keeps from the jury facts
that expose defendants to greater or
additional punishment.51
Responding to the State of New
Jerseys argument that the contested issue in
Apprendis case was a sentencing factor rather
than an element because this issue of fact
merely concerned Apprendis motive for
committing the crime (his alleged intent to
intimidate his victims on account of their
race),52 Justice Stevens declared that it
does not matter whether the required finding
[of fact] is characterized as one of intent
[i.e., culpable mental state] or of motive,
because labels do not afford an acceptable
answer to the question of a defendants right
to jury trial.53 It is likewise
unacceptable, Justice Stevens stated, to have
a defendants right to jury trial hinge on the
constitutionally novel and elusive
distinction between elements and sentencing
factors.54
Justice Stevens stated that, to him
and the other members of the Apprendi
majority, it was clear that the contested
issue of fact in Apprendis case was indeed an
element.55 Nevertheless, in that same
sentence, Justice Stevens declared that the
distinction between sentencing factor and
element was not the relevant inquiry.
Rather, the relevant inquiry is [whether] the
required finding expose[s] the defendant to a
greater punishment than that authorized by
the jurys guilty verdict.56
In other words, regardless of how
one might characterize a particular issue of
fact within the dichotomy of sentencing
factor and element, the test for Sixth
Amendment purposes is a different one. A
defendants right to jury trial under the
Sixth Amendment does not hinge on how state
law categorizes a particular issue of fact;
rather, the defendants right to jury trial
hinges on whether a finding in the
governments favor will increase the
defendants maximum sentence: Other than the
fact of a prior conviction, any fact that
increases the penalty for a crime beyond the
[otherwise] prescribed statutory maximum must
be submitted to a jury, and proved beyond a
reasonable doubt.57 Or, as Justice Scalia
put it in Blakely v. Washington,58 the test
is whether the defendants sentence was
authorized by the jurys verdict alone or,
instead, the sentencing court acquire[d]
[its] authority only upon finding some
additional fact beyond those found by the
jury.59
Justice Stevens returned to this
theme that the labels sentencing factor and
element are irrelevant for Sixth Amendment
purposes in United States v. Booker.60
Writing for the Court, Justice Stevens
declared that the decision in Apprendi was
based on the need to give renewed meaning to
two basic constitutional protections: a
defendants right to demand proof beyond a
reasonable doubt of every fact necessary to
constitute the crime ... charged,61 and a
defendants right to demand that a jury
[decide whether the defendant is] guilty of
all the elements of the crime ... charged.62
The key problem, Justice Stevens
said, 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, who
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].
Booker, 543 U.S. at 236, 125 S.Ct. at 751
(citations omitted).
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. at 237, 125 S.Ct. at 752.
The answer, as explained in
Apprendi and Blakely, was to interpret the
Sixth Amendment so as to guarantee a right of
jury trial, and a right to demand proof
beyond a reasonable doubt, on any issue of
fact which, if proved, increases the penalty
for the [defendants] crime beyond the
[otherwise] prescribed statutory maximum.63
Justice Stevens then reiterated
what he said in Apprendi: for purposes of
this Sixth Amendment rule, the labels element
and sentencing factor are irrelevant. These
labels do not provide a principled basis for
resolving the question of whether the Sixth
Amendment guarantees a right to jury trial on
a particular issue of fact:
The fact that[, in Apprendi,] New Jersey
labeled [its] hate crime a sentence
enhancement rather than a separate criminal
act was irrelevant for constitutional
purposes. As a matter of simple justice, it
seemed obvious that the procedural safeguards
[of jury trial and proof beyond a reasonable
doubt] designed to protect Apprendi from
punishment for [the underlying crime of]
possession of a firearm should apply equally
to his violation of the hate crime statute.
Merely using the label sentence enhancement
to describe [the hate crime statute] did not
provide a principled basis for treating the
two crimes differently.
In Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002), we
reaffirmed our conclusion that
[a legislatures] characterization of critical
facts is constitutionally irrelevant. There,
we held that it was impermissible for the
trial judge, sitting alone[,] to determine
the presence or absence of the aggravating
factors required by Arizona law for
imposition of the death penalty. ... Our
opinion [in Ring] made it clear that[,]
ultimately, ... the characterization of a
fact or circumstance as an element or a
sentencing factor is not determinative of the
question [of whether a] judge or jury
[decides that issue of fact].
Booker, 543 U.S. at 231, 125 S.Ct. at 748-49
(internal quotations and citations omitted).
In sum: Even though pre-Apprendi
decisions like Huf, Kleber, and Wedge relied
on the distinction between elements and
sentencing factors to resolve the scope of a
defendants right to jury trial, the Apprendi
decision adopted a new approach to this
question. Instead of asking whether a
particular issue of fact represented an
element or a sentencing factor, the Apprendi
Court asked a different question: whether
resolution of this issue of fact in favor of
the government would increase the defendants
maximum sentence. If so, then the Sixth
Amendment guarantees the defendant a right to
jury trial on that issue, no matter how the
issue might be classified.
Although the Supreme Court declared in Apprendi,
Blakely, and Booker that the distinction between
elements and sentencing factors is irrelevant when
assessing a defendants right to jury trial under the
Sixth Amendment, the states can continue to rely on
this distinction in matters of pleading and proof not
governed by the Sixth Amendment right to jury trial
The issue presented to this Court in the
present case is whether a defendant has a right to
grand jury indictment on any aggravating factor listed
in AS 12.55.155(c) which, in the event the defendant is
convicted, will later be litigated at the defendants
sentencing. The Supreme Courts decisions in Apprendi,
Blakely, and Booker do not answer this question.
In Apprendi, Blakely, and Booker, the Supreme
Court did not say that the states are forbidden from
drawing any distinction between elements and sentencing
factors. Rather, as explained in the preceding section
of this opinion, the Supreme Court declared that any
such distinction under state law is irrelevant when
assessing whether the Sixth Amendment guarantees
defendants a right to jury trial on a particular issue
of fact.
The Supreme Court further clarified this
point in Schriro v. Summerlin, 542 U.S. 348, 354-55;
124 S.Ct. 2519, 2524; 159 L.Ed.2d 442 (2004). In
Summerlin, the Supreme Court explained that it did not
view Apprendi and Blakely as requiring a redefinition
of state criminal offenses, or as requiring a
modification of the elements of those offenses.
The Summerlin case arose from the Supreme
Courts earlier decision in Ring v. Arizona, 536 U.S.
584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring,
the Court held that, under Apprendi, a defendant was
entitled to a jury trial on the aggravating factors
that authorized imposition of the death penalty.64 The
question presented in Summerlin was whether the federal
courts should apply Ring retroactively that is,
whether the federal courts should grant habeas corpus
relief to state prisoners whose convictions were final
before Ring was decided.65 This question, in turn,
hinged in part on whether the Ring decision announced a
substantive rule or merely a procedural rule for
purposes of the retroactivity test announced in Teague
v. Lane.66
In Summerlin, the Supreme Court declared that
Ring had not worked any substantive change in Arizona
law, but had merely announced a rule of procedure:
A decision that modifies the elements of
an offense is normally substantive rather
than procedural. New elements alter the
range of conduct the statute punishes,
rendering some formerly unlawful conduct
lawful or vice versa. [Citation omitted]
But that is not what Ring did; the range of
conduct punished by death in Arizona was the
same before Ring as after. Ring held that,
because Arizonas statutory aggravators
restricted (as a matter of state law) the
class of death-eligible defendants, those
aggravators effectively were elements for
federal constitutional purposes, and so were
subject to the procedural requirements the
Constitution attaches to trial of elements.
536 U.S. [at] 609, 122 S.Ct. [at 2443].
Summerlin, 536 U.S. at 354, 124 S.Ct. at
2524 (emphasis in the original).
In other words, even though, under
Apprendi and Blakely, a defendant may be
entitled to a jury trial on a particular
issue of fact, this does not mean that this
issue of fact must be treated as an element
for all purposes. Because Dagues case raises
a question involving the right to grand jury
indictment, rather than the right to jury
trial, Apprendi and Blakely do not provide
the answer to Dagues case.
It is true that Apprendi contains a
lengthy discussion of a defendants right at
common law to grand jury indictment on any
issue of fact that would increase the
defendants potential punishment. See
Apprendi, 530 U.S. at 477-481, 120 S.Ct. at
2356-58. But this discussion is simply
background part of the Courts explanation of
why the Court chose to adopt an analogous
interpretation of the Sixth Amendment right
to jury trial.
It is also true that the Apprendi
opinion refers to a defendants right to grand
jury indictment under the Fifth Amendment:
Our answer to [the] question [of whether
Apprendi was entitled to a jury trial] was
foreshadowed by our opinion in Jones v.
United States, 526 U.S. 227, 119 S.Ct. 1215,
143 L.Ed.2d 311 (1999), construing a federal
statute. We there noted that under the Due
Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth
Amendment, any fact (other than [a] prior
conviction) that increases the maximum
penalty for a crime must be charged in an
indictment, submitted to a jury, and proven
beyond a reasonable doubt. Id., at 243, n.
6, 119 S.Ct. 1215. The Fourteenth Amendment
commands the same answer in this case
involving a state statute.
Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355.
But the final sentence of this
quoted excerpt is not an accurate statement
of the law. Although the Fifth Amendment
guarantees a right of grand jury indictment
in federal prosecutions, the Fourteenth
Amendment does not command the same answer in
state prosecutions. Over one hundred years
ago, in Hurtado v. California, 110 U.S. 516,
4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme
Court held that the due process clause of the
Fourteenth Amendment does not include the
right to grand jury indictment.
Because the Sixth Amendment right
to jury trial is incorporated in the due
process clause of the Fourteenth Amendment,67
the Fourteenth Amendment does indeed command
the same answer in both federal and state
prosecutions when the question is a
defendants right to jury trial. But persons
prosecuted for crimes in state court have no
federal right to grand jury indictment.68
In fact, later on in the Apprendi
opinion, the Court clarified this matter by
explicitly stating that it did not intend to
address the issue of a defendants potential
right to grand jury indictment:
Apprendi has not here asserted a
constitutional claim based on the omission of
any reference to sentence enhancement or
racial bias in the indictment. He relies
entirely on the fact that the due process of
law that the Fourteenth Amendment requires
the States to provide to persons accused of
crime encompasses the right to a trial by
jury, Duncan v. Louisiana, 391 U.S. 145, 88
S.Ct. 1444, 20 L.Ed.2d 491 (1968), and the
right to have every element of the offense
proved beyond a reasonable doubt, In re
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25
L.Ed.2d 368 (1970). That Amendment has not,
however, been construed to include the Fifth
Amendment right to presentment or indictment
of a Grand Jury ... . We thus do not address
the indictment question ... today.
Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. at
2356 n. 3.
We do not mean to say that the
decisions in Apprendi and Blakely have no
bearing on a defendants right to notice and
an opportunity to prepare for litigation.
If, under the Sixth Amendment, a defendant is
entitled to a jury trial on a particular
issue of fact, it would stand to reason that
the defendant is likewise entitled to advance
notice that this fact will be litigated, and
to a sufficient opportunity to prepare for
that litigation. But the Supreme Courts
decision in Hurtado stands for the
proposition that, for purposes of the
Fourteenth Amendment, these due process
concerns can be satisfactorily addressed by
procedures short of grand jury indictment.
We also acknowledge that, in many
of our prior decisions, we have characterized
Apprendi, Blakely, and Booker as standing for
the proposition that a sentencing factor
which increases the defendants potential
maximum sentence must be viewed as if it
constituted an element of the offense.69
Indeed, the United States Supreme
Court used the phrase functional equivalent
of an element in Apprendi, 530 U.S. at 494 n.
19, 120 S.Ct. at 2365 n. 19, and again in
Ring v. Arizona, 536 U.S. at 609, 122 S.Ct.
at 2443, when the Court referred to the
aggravating factors that, under Arizona law,
made a defendant eligible to receive the
death penalty.
But while this characterization may
be accurate enough for purposes of Sixth
Amendment analysis, it is potentially
misleading when applied in other contexts.
As we have explained here, the decisions in
Apprendi, Blakely, and Booker do not rest on
the notion that some sentencing factors are
really elements. Rather than trying to
answer the question of whether some
sentencing factors must be deemed elements,
the Supreme Court cut the Gordian knot by
declaring that the distinction between
elements and sentencing factors was
irrelevant for Sixth Amendment purposes.
Under the functional test of
Apprendi, Blakely, and Booker, defendants
have a right to jury trial on any issue of
fact, regardless of whether it is designated
as an element or a sentencing factor, if
proof of that fact will increase the
defendants maximum sentence. But the Supreme
Court did not say that the Sixth Amendment
forbids the states from employing the
distinction between elements and sentencing
factors for other purposes.
As we have already explained, this
Court has repeatedly ruled in Hartley, in
Kelly, and in State v. District Court that,
as a matter of state law, the aggravating
factors listed in AS 12.55.155(c) are not
elements of a felony offense, but rather are
sentencing factors that a judge must consider
whenever they are applicable, even if the
State has failed to raise them. Although
Apprendi and Blakely guarantee defendants a
right to jury trial on aggravating factors in
some instances, Apprendi and Blakely do not
abrogate the underlying classification of
aggravators and mitigators under AS 12.55.155
as sentencing factors rather than elements
under Alaska law.
Even when, under Apprendi and Blakely, a defendant has
a right to jury trial on an aggravating factor
and, thus, a right to advance notice of the
aggravating factor and a fair opportunity to
prepare to litigate it the federal Constitution
does not require the states to provide this notice
at the grand jury stage of the proceedings
Apprendi, Blakely, and Booker implicitly
require the states to provide defendants with
advance notice of any factor (regardless of how
this factor is designated) that will potentially
increase the defendants maximum sentence. The
question is whether the federal Constitution
requires the states to give this advance notice at
the grand jury stage of the proceedings.
Apprendi, Blakely, and Booker do not provide
an answer to this question. But other decisions of the
United States Supreme Court suggest that even when
aggravating factors must be proved to a jury, the
states are free, at least in many instances, to craft
procedures that allow post-trial notification of these
aggravating factors and a separate, second jury trial
to decide these factors if they are contested.
In Graham v. West Virginia, 224 U.S. 616, 32
S.Ct. 583, 56 L.Ed. 917 (1912), and again in Oyler v.
Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446
(1962), the Supreme Court was asked to assess the
constitutionality of West Virginias habitual criminal
law a law that provided substantially increased
penalties for a felony offense if the defendant had a
particular number of prior felony convictions.
The West Virginia statute specified a
mandatory life sentence upon a persons third felony
conviction.70 Under West Virginia law, the charge of
habitual criminal was not a separate offense; rather,
the fact that a defendant was a habitual criminal
increased the sentence that the defendant faced for
their current felony. Moreover, a defendant was
entitled to a jury trial if they disputed the fact of
their prior felony convictions.71 But state law
nevertheless allowed the prosecutor to raise the issue
of the defendants prior felony convictions after the
defendant was convicted of the current offense, in
preparation for the defendants sentencing. As
described by the Supreme Court, West Virginia law
provided that the [habitual criminal] statute should be
invoked by information filed after [the defendants]
conviction rather than by allegation in the indictment
upon which the [defendant] was being prosecuted for a
substantive offense.72
In both Graham and Oyler, the Supreme Court
declared that this procedure did not violate either the
due process clause or the double jeopardy clause.
The Supreme Courts decision in Graham is
particularly important on the issue of whether the
federal due process clause demands that aggravating
factors be alleged in the indictment. The defendant in
Graham contended that, because the existence of the
prior convictions would make such a significant
difference to the defendants sentence, the government
should be required to declare in the indictment whether
it intended to ask the court to sentence the defendant
as a habitual criminal if the defendant was convicted.
The Supreme Court acknowledged that it might be more
convenient to have the State allege the defendants
prior convictions in the original indictment, so that
the same jury could decide all issues in a single
trial. But the Court declared that such a practice is
not obligatory:
It cannot be said that the prisoner was
deprived of due process of law because the
question [of his] former conviction was
passed upon separately. While it is [a]
familiar practice to set forth in the
indictment the fact of [a] prior conviction
of another offense, and to submit to the jury
the evidence upon that issue, together with
that relating to the commission of the crime
which the indictment charges, still in its
nature it is a distinct issue, and it may
appropriately be the subject of separate
determination. Provision for a separate and
subsequent determination of [this issue] has
not been regarded as a deprivation of any
fundamental right.
. . .
This conclusion necessarily follows from
the distinct nature of the issue [i.e., the
existence of the defendants prior
convictions] and from the fact ... that it
does not relate to the commission of the
offense, but goes to the punishment only, and
therefore it may be subsequently decided.
Graham, 224 U.S. at 625, 629; 32 S.Ct. at
586, 588.
Fifty years later, the Supreme
Court reiterated this theme in Oyler. The
defendants in Oyler again argued that the
West Virginia procedure violated their right
to procedural due process under the
Fourteenth Amendment that they were constitu
tionally entitled to notice of the habitual
criminal accusation before their trial on the
third felony offense.73
The Supreme Court disagreed:
Even though an habitual criminal charge
does not state a separate offense, the
determination of whether one is an habitual
criminal is essentially independent of the
determination of guilt on the underlying
substantive offense. [Citation and internal
quotation marks omitted] Thus, although the
habitual criminal issue may be combined with
the trial of the felony charge, it is a
distinct issue, and it may appropriately be
the subject of separate determination. Graham
v. West Virginia, 224 U.S. 616, 625, 32 S.Ct.
583, 586, 56 L.Ed. 917 (1912). If West
Virginia chooses to handle the matter as two
separate proceedings, due process does not
require advance notice that the trial on the
substantive offense will be followed by an
habitual criminal proceeding.
Oyler, 368 U.S. at 452, 82 S.Ct. at 503-04 (internal quotations
and citations omitted).
The Supreme Court noted that [a]ny other rule would
place a difficult burden on the [states] imposition of
a recidivist penalty:
Although the fact of prior conviction is
within the knowledge of the defendant, often
this knowledge does not come home to the
prosecutor until after the trial, and in many
cases the prior convictions are not
discovered until the defendant reaches the
penitentiary.
Oyler, 368 U.S. at 452 n. 6, 82 S.Ct. at 504 n. 6.
The Supreme Court acknowledged that defendants
prosecuted under the habitual criminal law were entitled to
reasonable notice and an opportunity to be heard relative to the
recidivist charge. But the Court held that the due process
clause of the Fourteenth Amendment did not require that [this]
notice be given prior to the [defendants] trial on the
substantive offense.74
Oyler is not a relic of Nineteenth Century
jurisprudence. Rather, Oyler was decided in 1962 during a time
when the Supreme Court was aggressively expanding the rights of
criminal defendants under the federal constitution.75 It
presumably continues to be good law.
Two particular aspects of the Graham and Oyler
decisions need to be emphasized.
First, although West Virginia law imposed increased
penalties on defendants based on their prior felony convictions,
the Supreme Court did not uphold the West Virginia law under a
theory analogous to the Apprendi-Blakely exemption for prior
convictions. West Virginia law expressly provided that, if a
defendant contested the existence of the predicate prior felony
convictions, the defendant was entitled to a jury trial on that
issue. Thus, there was no dispute in Graham and Oyler concerning
the defendants right to jury trial. The issue was whether, in
light of that right to jury trial, the defendant was entitled to
pre-conviction notice that the State would seek enhanced
punishment under the habitual criminal statute if the defendant
was convicted.
Second, although the West Virginia law at issue in
Graham and Oyler called for increased penalties based on a
defendants prior felony convictions, the Supreme Courts stated
rationale for upholding West Virginias procedure (i.e., the
procedure of having a separate, post-conviction jury trial if the
defendant disputed those prior convictions) actually suggests a
rule that is not confined to prior convictions. The Supreme
Court noted that the determination of whether one is an habitual
criminal is essentially independent of the determination of [the
defendants] guilt on the underlying substantive offense. The
Court declared that, because the existence of prior convictions
is a distinct issue, ... it may appropriately be the subject of
separate determination (again, by jury trial) if that is how a
state chooses to handle the issue. Oyler, 368 U.S. at 452, 82
S.Ct. at 503-04.
The Supreme Courts explanation of this point is
significant because many of the aggravating factors listed in AS
12.55.155(c) hinge on matters that appear to be essentially
independent of the determination of [the defendants] guilt on the
underlying substantive offense. See aggravator (c)(8) prior
criminal conduct involving aggravated or repeated instances of
assaultive behavior; aggravator (c)(12) the defendant was on
bail release for a felony or for a misdemeanor assault;
aggravator (c)(16) the defendants criminal conduct was designed
to obtain substantial pecuniary gain, and the defendants risk of
prosecution and punishment was slight; aggravator (c)(17) the
offense was one of a continuing series of criminal offenses from
which the defendant derives a major portion of the defendants
income; aggravator (c)(18)(B) the defendant is convicted of a
sexual offense specified in AS 11.41.410458, and the defendant
has previously engaged in other sexual offenses under these same
sections of the statutes; aggravator (c)(20) the defendant was
on felony probation, parole, or furlough; and aggravator (c)(21)
prior history of repeated similar criminal offenses.
The Supreme Courts decisions in Graham and Oyler
strongly suggest that the Alaska Legislature would not violate
the due process clause of the Fourteenth Amendment by
establishing a procedure under which (1) matters independent of
the defendants guilt or innocence would alter the defendants
maximum sentence; (2) defendants would receive post-conviction
notice that these matters were to be litigated, and (3)
defendants would receive a separate post-conviction jury trial if
these matters were contested (assuming that these matters were
not exempted from the jury trial requirement by virtue of the
Blakely exception for prior convictions).
Based on the Supreme Courts decisions in Graham and
Oyler, we conclude that, even in states which guarantee a right
of grand jury indictment to felony defendants, the due process
clause of the Fourteenth Amendment does not require sentencing
factors to be included in the indictment even when, under
Apprendi and Blakely, the Sixth and Fourteenth Amendments would
require the states to give defendants a jury trial on those same
factors.
Thus, if Dague is entitled to grand jury indictment on
the aggravating factors listed in AS 12.55.155(c), that
entitlement must arise under Article I, Section 8 of the Alaska
Constitution the provision of our constitution that guarantees
the right of grand jury indictment.76
Why we conclude that Article I, Section 8 of the Alaska
Constitution does not guarantee grand jury indictment
on aggravating factors
Article I, Section 8 of the Alaska
Constitution guarantees a right of grand jury
indictment to all persons accused of felonies.77 In
elucidation of this guarantee, AS 12.40.100(a) declares
that an indictment must be direct and certain as it
regards ... the particular circumstances of the crime
charged when [those circumstances] are necessary to
constitute a complete crime. And Alaska Criminal Rule
7(c) states that an indictment shall be a plain,
concise[,] and definite ... statement of the essential
facts constituting the offense charged.
The question presented in Dagues case is
whether the aggravating factors listed in AS
12.55.155(c) are elements of a defendants underlying
crime for purposes of grand jury indictment whether,
in the words of Criminal Rule 7(c), these aggravating
factors constitute a portion of the essential facts
constituting the offense charged.
As we explained earlier in this opinion, the
structure of Alaskas criminal code and presumptive
sentencing law demonstrate that the legislature did not
intend for the aggravating and mitigating circumstances
codified in AS 12.55.155 to be characterized as
elements of a crime. Recently, the legislature
responded to Blakely in particular, the suggestion
that Blakely might be read to require grand jury
indictment on aggravating factors by adding a new
subsection to AS 12.40.100, the statute that specifies
the required contents of an indictment. This new
subsection, AS 12.40.100(c), reaffirms the legislatures
intention that aggravating factors not be treated as
elements of a crime. AS 12.40.100(c) declares: An
indictment that complies with this section and with
applicable rules adopted by the supreme court is valid
and need not specify aggravating factors set out in
AS 12.55.155.
Of course, the legislatures view of this
matter is not controlling. We are dealing with a
constitutional guarantee, and the provisions of our
constitution override any contrary intention on the
part of the legislature.
But as we explained earlier, this Court has
repeatedly held (in Hartley, Kelly, and State v.
District Court) that the aggravating factors are not
elements of the underlying crime for purposes of
pleading. Our decision in Hartley is particularly
important on this point because, in Hartley, we
considered and rejected the argument that the Alaska
Supreme Courts decision in Donlun required us to treat
the aggravating factors listed in AS 12.55.155(c) as
elements of the offense.
As we explained in Hartley, the legislature
created the aggravating and mitigating factors codified
in AS 12.55.155 with the aim of eliminating unjustified
disparity in felony sentencing, and for the related
purpose of assuring that all felony sentencing
decisions would be based on legally relevant sentencing
criteria. Because of this, the aggravating and
mitigating factors are not elements that the State can
either pursue or refrain from pursuing, in the exercise
of its prosecutorial discretion. Moreover, Hartley
holds that a sentencing court has an independent duty
to consider applicable aggravating factors even if the
State does not raise them. In other words, the
aggravating factors are not elements of the crime, at
least as that concept is normally understood.
Indeed, in many instances, the aggravators
listed in AS 12.55.155(c) will not even be the
functional equivalent of elements for purposes of
proof. Apprendi and Blakely hold that a defendant is
entitled to a jury trial, and to proof beyond a
reasonable doubt, if an aggravating factor will
increase the defendants potential maximum sentence.
But many of the aggravating factors listed in
AS 12.55.155(c) fall within Blakelys exemption for
prior convictions; when these aggravators are
established by the defendants prior convictions, the
defendant has no right to jury trial on these
aggravators.78
Moreover, we recently held in Cleveland v.
State, __ P.3d __, Alaska App. Opinion No. 2060 (August
25, 2006), 2006 WL 2458578, that, under Alaskas pre-
March 2005 form of presumptive sentencing (the version
of the law at issue in Dagues case), Blakely only
governs the proof of a single aggravating factor for
each felony conviction. As we explained in Cleveland,
under the pre-2005 presumptive sentencing law, proof of
any single aggravating factor authorized the sentencing
judge to impose any sentence of imprisonment up to the
statutory maximum.79 Thus, once a single Blakely-
compliant aggravating factor is proved either by jury
verdict, or by the defendants prior convictions, or by
the defendants express concession the Sixth Amendment
is satisfied, and all remaining aggravating factors can
be litigated and proved in the manner specified by the
pre-March 2005 version of AS 12.55.155.
Our decision in Cleveland reinforces the
conclusion that, under the pre-2005 version of Alaskas
presumptive sentencing law, the aggravating factors
listed in AS 12.55.155(c) are not elements of the
defendants crime. Cleveland holds that the Sixth
Amendment (as construed in Blakely) may require one of
these aggravators to be proved to a jury. But once a
single Blakely-compliant aggravator is established, the
remaining aggravators can be litigated in the manner
provided in the pre-2005 version of the law that is,
litigated to the sentencing judge, and proved under a
clear and convincing evidence standard.
The courts of several other states have
confronted the question of whether the Blakely right to
jury trial on aggravating factors carries with it a
corresponding state-law right to grand jury indictment
on those aggravating factors. With one exception, all
of these courts have concluded that their state right
to grand jury indictment does not apply to aggravating
factors, even when a defendant has a Sixth Amendment
right to jury trial on those same factors:
See State ex rel. Smith v. Conn, 98 P.3d 881,
883-85 (Ariz. App. 2004); Banks v. State, 842 So.2d
788, 793 (Fla. 2003); Terrell v. State, 572 S.E.2d 595,
602 (Ga. 2002); People v. Davis, 793 N.E.2d 552,
568-570 (Ill. 2002); Soto v. Commonwealth, 139 S.W.3d
827, 842 (Ky. 2004); Baker v. State, 790 A.2d 629, 650
(Md. 2002); Berry v. State, 882 So.2d 157, 171-72
(Miss. 2004); Stevens v. State, 867 So.2d 219, 227
(Miss. 2003); State v. Gilbert, 103 S.W.3d 743, 747
(Mo. 2003); Floyd v. State, 42 P.3d 249, 256 (Nev.
2002); State v. Everette, 616 S.E.2d 237, 242 (N.C.
2005); State v. Hunt, 582 S.E.2d 593, 605-06 (N.C.
2003); State v. Pender, 627 S.E.2d 343, 346 (N.C. App.
2006); Primeaux v. State, 88 P.3d 893, 899-900 (Okla.
Crim. App. 2004); State v. Sawatzky, 125 P.3d 722, 726-
27 (Or. 2005); State v. Heilman, 125 P.3d 728, 733-34
(Or. 2005); State v. Cox, 98 P.3d 1103, 1115-16 (Or.
2004); State v. Oatney, 66 P.3d 475, 485-87 (Or. 2003);
State v. Berry, 141 S.W.3d 549, 558-562 (Tenn. 2004);
State v. Holton, 126 S.W.3d 845, 862-63 (Tenn. 2004);
State v. Carter, 114 S.W.3d 895, 910 n. 4 (Tenn. 2003);
State v. Dellinger, 79 S.W.3d 458, 466 (Tenn. 2002);
Russeau v. State, 171 S.W.3d 871, 885-86 (Tex. Crim.
App. 2005); Rayford v. State, 125 S.W.3d 521, 533 (Tex.
Crim. App. 2003); Morrisette v. Warden of Sussex I
State Prison, 613 S.E.2d 551, 556 (Va. 2005).
Contra: State v. Fortin, 843 A.2d 974,
1027-1038 (N.J. 2004) (requiring that aggravating
factors be charged in the indictment, as a matter of
state law, but with prospective application only).
The Oregon Supreme Courts discussion of this
point in State v. Sawatzky, 125 P.3d 722 (Or. 2005), is
particularly cogent and succinct:
We agree with [the defendant] that
Apprendi describes a sentence enhancement as
an increase beyond the maximum authorized
statutory sentence and the functional
equivalent of an element of a greater offense
than the one covered by the jurys guilty
verdict. 530 U.S. at 494 n. 19, 120 S.Ct.
[at 2365 n. 19]. [But] although Apprendi
requires that the jury find the facts that
would support an enhanced sentence, we do not
agree that Apprendi requires, as a matter of
state criminal procedure, that [sentence]
enhancement factors be set out in the
indictment.
. . .
Nothing in Apprendi or Blakely alters
the definition of an offense set out in
[Oregon Statute] 161.505. In our view, so
long as a defendant has timely notice that
the state intends to prove certain
aggravating or enhancing factors necessary
for the imposition of a sentence that exceeds
the [otherwise applicable] presumptive range,
and the trial court affords [the] defendant
the opportunity to exercise his or her jury
trial right [on these issues], the federal
constitution is satisfied.
Sawatzky, 125 P.3d at 727.
For the reasons we have explained
here, we align ourselves with the near-
unanimous majority of other state courts on
this issue. We hold that the aggravating
factors listed in AS 12.55.155(c) are not
elements of a felony offense for purposes of
Alaskas guarantee of grand jury indictment.
Of course, defendants have a due
process right to adequate notice of the
applicable aggravators, and to an adequate
opportunity to litigate these aggravators if
the defendant chooses to contest them. This
principle is easy to state in the abstract,
but harder to apply to particular cases.
Dagues case provides an example of
a problematic situation: a defendant is
indicted and tried for an offense that is not
governed by presumptive sentencing, but the
defendant is found guilty of a lesser offense
that is governed by presumptive sentencing
thus making aggravating and mitigating
factors legally relevant for the first time.
In recent legislation, the Alaska
Legislature has declared that defendants in
this situation should receive notice of
proposed aggravating factors within 48 hours,
or at a time specified by the court, if the
court instructs the jury about the option to
return a verdict for a lesser included
offense. AS 12.55.155(f)(2)(B).
Conceivably, depending on the
circumstances, this short notice might not be
sufficient to allow the defendant a fair
opportunity to litigate a proposed
aggravating factor. If so, then the superior
court would confront the question of whether
to recess the trial or delay the jurys
deliberations (to give the defendant more
time to prepare) or, instead, allow the jury
to deliberate on the underlying crimes and
then convene a second jury to deal with the
contested aggravating factor.
We note these issues, but we need
not resolve them here. In Dagues case, the
presence of aggravating and mitigating
factors did not become a live issue until the
jury acquitted Dague of second-degree murder
and found her guilty of manslaughter. (At
the time of Dagues trial, the legislature had
not yet amended AS 12.55.155(f) to require
the State to give notice of proposed
aggravating factors within 48 hours after the
trial judge decides to instruct the jury on
lesser included offenses.) The State
proposed aggravator (c)(5) on the first
business day following the jurys verdict:
October 4, 2004. At Dagues request, the
superior court dismissed the jury, leading to
the present appellate proceedings. Dagues
sentencing has now been delayed by almost two
years on account of this appellate
litigation. Under these circumstances, Dague
has had adequate notice of aggravator (c)(5).
Accordingly, our decision is
confined to the narrow issue of whether,
under the Alaska Constitution, aggravating
factors must be pleaded in the indictment.
We hold that they need not be.
The superior court will not violate Dagues rights under
the double jeopardy clause if the court now holds
a jury trial on the aggravating factor alleged by
the State
One final issue remains to be decided:
whether the double jeopardy clause forbids the
superior court from holding a second jury trial on
the aggravating factor proposed by the State in
Dagues case. To explain this issue, we must
briefly recapitulate the procedural history of
Dagues case.
As we explained early in this opinion, Dague
was indicted and tried for second-degree murder,
following the death of a ten-month-old infant left in
her care. The offense of second-degree murder was
governed by indeterminate sentencing. In other words,
if Dague had been convicted of second-degree murder,
the presence or absence of aggravating and mitigating
factors would have had no effect on the courts
sentencing authority.80 But the jury acquitted Dague
of second-degree murder and found her guilty of the
lesser offense of manslaughter. Manslaughter is a
class A felony offense, and it is governed by
presumptive sentencing. As a first felony offender,
Dague faced a presumptive term of 5 years imprisonment,
and the court had no authority to impose any higher
sentence unless the State proved one or more of the
aggravating factors listed in AS 12.55.155(c).
After the jury returned its verdict, the
State asked Judge Volland to hold Dagues jury over the
weekend, until Monday, so that the jury could consider
any aggravating factors that applied to Dagues crime.
Dague responded that the State was barred from pursuing
aggravating factors because no aggravating factors had
been alleged in the indictment. She argued in the
alternative that, even if aggravating factors did not
have to be pleaded in the indictment, she nevertheless
had received insufficient notice of whatever
aggravators the State might propose.
Judge Volland agreed to hold the jury over
until Monday at which time he would hear arguments
from the parties on two issues: whether aggravators
needed to be pleaded in the indictment, and whether it
was feasible to delay Dagues jury trial to resolve the
various legal issues surrounding the States post-
verdict proposal of aggravating factors.
When the parties re-assembled in court on
Monday, the State proposed aggravator (c)(5) that
Dague knew or reasonably should have known that the
victim of the offense was particularly vulnerable or
incapable of resistance due to ... extreme youth.
Dague argued that, because of the United
States Supreme Courts decision in Blakely, she was
entitled to grand jury indictment on any aggravating
factor. Dague also contended that she was prejudiced
by the lack of pre-trial notice of the proposed
aggravator. She asserted that she had been unable to
plan her trial strategy so as to counter the proposed
aggravator, and she also asserted that the States post-
verdict notice of the aggravator hampered her ability
to make strategic decisions on how to prepare for
sentencing. Dague also argued that she was entitled to
have the same jury decide the proposed aggravating
factor, and she contended that the States post-verdict
notice of the aggravator made it impracticable to hold
the jury. For all of these reasons, Dague asked the
superior court to discharge the jury and bar the State
from pursuing the proposed aggravator.
Judge Volland granted Dagues request to
discharge the jury, and he further ruled that the State
was barred from pursuing its proposed aggravator with
any later jury.
Dague now argues that Judge Vollands
resolution of this matter was mandated by the double
jeopardy clause of the federal and state constitutions.
(Dague makes no separate argument based on the Alaska
double jeopardy clause; rather, she makes a unified
argument that depends primarily on cases interpreting
the federal double jeopardy clause.)
The underlying premise of Dagues double
jeopardy argument is the assertion that the States
proposed aggravating factor, (c)(5), must be deemed an
additional element of her offense. Based on this
premise, Dague argues that, in essence, the State is
now attempting to bring her to trial on a charge of
aggravated manslaughter, a new and greater offense than
the non-aggravated manslaughter reflected in the jurys
verdict. And Dague argues that the double jeopardy
clause forbids the government from taking a defendant
to trial on a criminal charge and then, following the
verdict, charging the defendant with a new, higher
degree of the same crime.
We have already explained, at length, why we
conclude that Dagues premise is wrong why the
aggravating factors listed in AS 12.55.155(c) are not
elements of the felony offenses governed by presumptive
sentencing.
As we recently noted in Cleveland v. State,
the proof of any single aggravating factor is
sufficient to authorize a sentencing judge to exceed
the prescribed presumptive term and impose any sentence
up to the statutory maximum. Thus, depending on the
circumstances of a defendants case, the first
aggravating factor to be proved may be viewed as the
functional equivalent of an element for the limited
purpose of assessing the defendants right to jury trial
under the Sixth Amendment. But aggravating factors are
not elements for other purposes.
In particular, Hartley and Kelly hold that,
for purposes of indictment and pre-trial notice,
aggravating factors are not elements of the defendants
underlying crime. Thus, the crime of manslaughter
without proof of aggravating factors is not a lesser
offense included within a purportedly distinct crime of
manslaughter accompanied by proof of aggravators.
Dagues offense is manslaughter, and the presence or
absence of aggravating factors does not alter this
just as the presence or absence of mitigating factors
would not alter it, even though the courts sentencing
range would be changed (to Dagues benefit) if one or
more mitigating factors were proved.
Moreover, as we explained in the preceding
section of this opinion, in both Graham v. West
Virginia and Oyler v. Boles the United States Supreme
Court rejected a double jeopardy attack on a habitual
criminal law that authorized the imposition of
substantially increased penalties for felony offenses
if the defendant had prior felony convictions. West
Virginia law allowed the State to give notice of its
intent to prove these prior convictions after the
defendant was convicted of the underlying offense, and
it allowed the State to litigate these prior
convictions at a separate trial in front of a second
jury. In both Graham and Oyler, the Supreme Court
declared that this procedure did not violate the double
jeopardy clause.
As the Supreme Court explained in Oyler, the
fact that the defendant may have prior felony
convictions is essentially independent of the
determination of [the defendants] guilt on the
underlying substantive offense a distinct issue [that]
may appropriately be the subject of separate
determination. Id., 368 U.S. at 452, 82 S.Ct. at 503-
04.
See also Spencer v. Texas, 385 U.S. 554, 566;
87 S.Ct. 648, 655; 17 L.Ed.2d 606 (1967), where the
Supreme Court noted that, in some states, a sentence
enhancement proceeding can be instituted even after
[the defendants] conviction on the new substantive
offense, and the Court declared that [t]olerance for a
spectrum of state procedures dealing with [this] common
problem of law enforcement is especially appropriate.
Although the decisions in Graham and Oyler
involved a statute that called for an enhanced sentence
based on the defendants prior convictions, the wording
of Graham and Oyler suggests that the Supreme Court
would adhere to the same double jeopardy rule that is,
the Supreme Court would allow a separate, post-verdict
jury trial whenever the sentence enhancement was based
on facts essentially independent of the determination
of guilt on the underlying substantive offense. Oyler,
368 U.S. at 452, 82 S.Ct. at 503.
As we pointed out earlier in this opinion,
such a rule would cover several of the aggravating
factors listed in AS 12.55.155(c) the aggravators
dealing with issues such as whether the defendant was
on probation, parole, or bail release at the time of
the offense, or whether the defendant had a history of
similar offenses or assaultive behavior. We concede,
however, that it is not clear whether the aggravating
factor at issue in Dagues case, aggravator (c)(5),
should be deemed essentially independent of the
determination of [Dagues] guilt on the underlying
substantive offense.
Aggravator (c)(5) applies to cases in which
the defendant was aware, or reasonably should have been
aware, that the victim of the offense was particularly
vulnerable (here, the potential vulnerability arising
from the victims extreme youth). Technically, this
issue of fact is not among the elements of either
second-degree murder (the offense for which Dague was
indicted) or manslaughter (the lesser offense that she
was convicted of). However, it seems almost inevitable
that the victims extreme youth was one of the factors
that the jurors considered when they assessed Dagues
culpable mental state that is, when they decided
whether Dague acted with extreme indifference to the
value of human life (the culpable mental state for
second-degree murder) or recklessness (the culpable
mental state for manslaughter).
But even if we assume that the issue of fact
presented by aggravator (c)(5) does not qualify as
essentially independent of the issues litigated at
Dagues trial, and if we further assume that Dague was
entitled to have a single jury decide both her guilt of
manslaughter and the presence or absence of the States
proposed aggravating factor, we still conclude that,
given the circumstances of Dagues case, it will not
violate Dagues rights under the double jeopardy clause
for us to remand this case to the superior court for a
jury trial on the States proposed aggravating factor.
Dagues jury was not asked to decide
aggravator (c)(5), so the jury never explicitly ruled
on this issue. Nor do the jurys verdicts in Dagues
case finding her not guilty of second-degree murder,
but finding her guilty of manslaughter constitute an
implicit finding in Dagues favor on proposed aggravator
(c)(5). Although the jury acquitted Dague of second-
degree murder, this acquittal is consistent with the
conclusion that Dague knew or should have known that
the infant was particularly vulnerable. The jury found
that Dague committed manslaughter that she acted
recklessly when she caused the infants death. Under
the definition of recklessly codified in AS
11.81.900(a)(3), a person commits a reckless homicide
if they are aware of, and consciously disregard, a
substantial and unjustifiable risk that their conduct
will lead to the death of another. Thus, the jurys
verdicts are not an implied rejection of aggravator
(c)(5); rather, these verdicts are consistent with
aggravator (c)(5).
Because the jurys verdicts do not constitute
an implicit rejection of aggravator (c)(5) that is,
because these verdicts do not constitute an implicit
acquittal on aggravator (c)(5) the verdicts themselves
do not bar the State from pursuing further proceedings
against Dague to prove this aggravator. Accordingly,
if the double jeopardy clause protects Dague from
further litigation of this issue, that protection must
arise from the double jeopardy clauses guarantee
against successive prosecutions. Thus, the remaining
question is whether the convening of a second jury to
decide aggravator (c)(5) would constitute a successive
prosecution for double jeopardy purposes.
As we explained above, the Supreme Court held
in Graham and Oyler that, in many instances, a state
may subject a defendant to a separate, second trial on
sentencing factors without violating the double
jeopardy clause. But even assuming that aggravator
(c)(5) does not fall within the category of aggravating
factors for which two separate trials are expressly
allowed under Graham and Oyler, the fact remains that
the State did not seek to subject Dague to two separate
trials. Rather, immediately after the jury found Dague
guilty of manslaughter an offense governed by
presumptive sentencing the State asked the superior
court to hold Dagues jury so that the same jurors could
consider the States proposed aggravating factor. In
other words, the State sought a continuation of Dagues
trial, with the same jury, as soon as Dagues conviction
for manslaughter triggered presumptive sentencing (thus
raising the issue of aggravating and mitigating
factors).
The trial did not continue because Dague
opposed the States request. She argued that she was
entitled to grand jury indictment on any aggravating
factors, and that it was too late for the State to
amend the indictment by adding aggravating factors
because if any aggravating factors were added to the
indictment, the amended indictment would effectively
charge a new and greater offense. Based on these
arguments, Dague asked the superior court to dismiss
her jury and the superior court did so.
By expressly asking the superior court to
dismiss the jury, Dague waived any right she might
otherwise have had to insist that a single jury decide
both her guilt of the homicide and the States proposed
aggravating factor. Her trial has been divided in two
because of her own efforts.
Accordingly, it will not violate the double
jeopardy clause for us to remand Dagues case to the
superior court for a jury trial on the disputed
aggravating factor. Again, we agree with the Oregon
Supreme Courts analysis of this question in Sawatzky:
[A new jury trial on aggravating
circumstances] is not a second prosecution.
Rather, it is a sentencing proceeding on
remand a continuation of a single
prosecution. See State v. Montez, 309 Or.
564, 604, 789 P.2d 1352 (1990) (A penalty
phase hearing is merely a continuation of the
same trial and not a separate or collateral
proceeding threatening a new or different
sanction). Because it is [the defendant] who
challenged the legality of her sentences ...
, she cannot now claim that she had any
justifiable expectation of finality a
fundamental jeopardy requirement with
respect to her sentences.
. . .
We hold that [the defendant] has no ...
constitutional [double] jeopardy right that
prohibits the empaneling of a [new] jury to
determine whether certain aggravating factors
may support the imposition of sentences that
exceed the presumptive range for the crimes
to which [the defendant] pleaded guilty.
Sawatzky, 125 P.3d at 726-27.
Judge Vollands alternative ground for preventing the
State from litigating the aggravating factor
In addition to the legal issues that we have
discussed here, Judge Volland barred the State from
pursing aggravating factor (c)(5) because he believed
that, if this aggravating factor were litigated, Dague
would be required to re-summon the expert witnesses who
testified at trial regarding her mental state, and he
concluded that it would be fundamentally unfair to
require Dague to bear the additional expense of
bringing these witnesses back to Alaska.
We are not certain why Judge Volland believed
that these expert witnesses would be crucial to the
jurys decision on aggravator (c)(5). Although the
jurys decision on the charges of second-degree murder
and manslaughter required an evaluation of Dagues
subjective mental state, aggravator (c)(5) is proved if
the defendant knew or reasonably should have known that
the victim of the offense was particularly vulnerable
or incapable of resistance due to ... extreme youth.
That is, aggravator (c)(5) does not focus on the
defendants subjective mental state; rather, it
incorporates an objective, negligence test.
In any event, Dague does not rely on this
aspect of Judge Vollands ruling in this appeal.
Conclusion
We acknowledge that defendants have a due
process right to advance notice of the States proposed
aggravating factors and a sufficient opportunity to
prepare for litigation if the defendant intends to
dispute these aggravating factors. But to resolve
Dagues case, we need not define the precise contours of
this due process right. Dagues case presents a
narrower issue: whether the States proposed aggravating
factors must be charged in the defendants indictment.
For the reasons explained here, we conclude
that even when the Sixth Amendment, as interpreted in
Blakely v. Washington, guarantees a defendant the right
to jury trial on an aggravating factor listed in
AS 12.55.155(c), that aggravating factor is not an
element of the defendants crime for purposes of the
grand jury clause of the Alaska Constitution.
We further conclude that, under the facts of
Dagues case, a second jury trial addressed to
aggravator (c)(5) will not violate the guarantee
against successive prosecutions embodied in the double
jeopardy clause of the federal and state constitutions.
We REVERSE the decision of the superior
court, and we remand Dagues case to the superior court
to allow the parties to litigate proposed aggravating
factor AS 12.55.155(c)(5) before Dague is sentenced for
manslaughter.
_______________________________
1Blakely, 542 U.S. at 301-03, 124 S.Ct. at 2536-37.
2See, e.g., Moore v. State, 123 P.3d 1081, 1091 (Alaska App.
2005); Haag v. State, 117 P.3d 775, 782 (Alaska App. 2005).
3530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
4See AS 11.41.120(a) (defining the offense of manslaughter).
5See AS 12.55.125(b).
6See Allen v. State, 56 P.3d 683, 684-85 (Alaska App. 2002).
7AS 12.55.125(c).
8See AS 12.55.125(c)(1) (version in effect in 1997).
9See SLA 1999, ch. 54, 10.
10See SLA 1978, ch. 166, 3 & 25.
11For example, the former manslaughter statute, AS
11.15.040, declared that this offense was punishable by
imprisonment in the penitentiary for not less than one year
nor more than 20 years. Similarly, the former rape statute
(AS 11.15.120) was immediately followed by a penalty
statute, AS 11.15.130, which declared that, except in
certain cases of incest or sexual intercourse with an
underage female, the punishment for rape was imprisonment in
the penitentiary for not more than 20 years nor less than
one year. Other examples are former AS 11.15.160 (assault
with intent to kill or commit rape or robbery), former AS
11.15.250 (larceny from the person), former AS 11.20.010
(arson in the first degree), and former AS 11.20.100
(burglary not in a dwelling house).
12This quoted characterization is actually found in the
Judicial Councils follow-up study, Alaska Felony Sentences:
1980 (December 1982), page i. The Councils original
sentencing study was Alaska Felony Sentencing Patterns: A
Multivariate Statistical Analysis (1974-76) (April 1977).
13See SLA 1978, ch. 166, 12, which enacted AS 12.55.125
through 12.55.175. The history of presumptive sentencing,
and the legislative motivation for enacting this form of
sentencing, are recounted in Juneby v. State, 641 P.2d 823,
829-830 (Alaska App. 1982).
14See SLA 1982, ch. 143, 28; SLA 1992, ch. 79, 25. And
see Austin v. State, 627 P.2d 657 (Alaska App. 1981);
Brezenoff v. State, 658 P.2d 1359 (Alaska App. 1983); Dayton
v. State, 120 P.3d 1073 (Alaska App. 2005).
15Blakely, 542 U.S. at 323, 124 S.Ct. at 2548-49 (OConnor,
J., dissenting).
16Blakely, 542 U.S. at 315, 124 S.Ct. at 2544 (OConnor, J.,
dissenting), quoting Senate Report No. 98-225 (1983), p. 38,
1983 U.S. Code, Congressional & Administrative News, pp.
3182, 3221.
17Blakely, 542 U.S. at 315, 124 S.Ct. at 2544 (OConnor, J.,
dissenting).
3 P.2d at 1056; Kelly, 663 P.2d at 9
74-75; State v. District Court, 53
P.3d at 633. 22Id. App. 2002).
21Hartley, 653 P.2d at 1056; Kelly, 663 P.2d at 974-75;
State v. District Court, 53 P.3d at 633.
22Id.
23Hartley, 653 P.2d at 1055.
24Id. at 1055-56.
25Id. at 1056.
26Donlun, 527 P.2d at 473-74 & n. 4.
27Id. at 474.
28Id. at 473.
29Post, 635 P.2d at 1195.
30Id. at 1196-97.
31State v. District Court, 53 P.3d at 633.
32530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
33For an example of a statute establishing a mandatory
minimum penalty for certain felonies when the defendant
possessed or used a firearm, see the statute at issue in
Whitton v. State, 479 P.2d 302 (Alaska 1970). This statute
imposed a mandatory minimum sentence of 10 years
imprisonment on any defendant convicted of robbery, assault,
murder, rape, burglary, or kidnapping if the defendant
use[d] or carrie[d] a firearm during the commission of the
offense. (This statute is quoted verbatim in Whitton, 479
P.2d at 304 n. 2.) For an example of a statute imposing an
additional penalty for the possession or use of a dangerous
weapon during the commission of a felony, see the statute at
issue in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74
L.Ed.2d 535 (1983). This statute provided that, in addition
to the prescribed penalty for a felony offense, a felony
defendant faced a supplemental term of imprisonment if the
defendant committed the offense by, with, or through the
use, assistance, or aid of a dangerous or deadly weapon.
(This statute is quoted in Hunter, 459 U.S. at 362, 103
S.Ct. at 676.)
34Huf, 675 P.2d at 272.
35Kleber, 575 P.2d at 904.
36Id.
37Quoted in Huf, 675 P.2d at 272.
38Oregon Statute 161.610 (1979), described in Wedge, 652
P.2d at 776.
39Wedge, 652 P.2d at 778.
40Apprendi, 530 U.S. at 468-69, 120 S.Ct. at 2351.
41Id., 530 U.S. at 468, 120 S.Ct. at 2351.
42Id., 530 U.S. at 468-69, 471; 120 S.Ct. at 2351, 2352.
43Id., 530 U.S. at 471, 120 S.Ct. at 2352.
44Id., 530 U.S. at 472-73, 120 S.Ct. at 2353-54.
45Id., 530 U.S. at 476, 120 S.Ct. at 2355.
46Id.
47Id., 530 U.S. at 478, 120 S.Ct. at 2356.
48Id., 530 U.S. at 483, 120 S.Ct. at 2359.
49477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).
50Apprendi, 530 U.S. at 485, 120 S.Ct. at 2360.
51Id., 530 U.S. at 486, 120 S.Ct. at 2360.
52See id., 530 U.S. at 492, 120 S.Ct. 2363-64.
53Id., 530 U.S. at 494, 120 S.Ct. at 2365.
54Id.
55Id.
56Id.
57Id., 530 U.S. at 490, 120 S.Ct. at 2362-63.
58542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
59Blakely, 542 U.S. at 305, 124 S.Ct. at 2538.
60543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
61Booker, 543 U.S. at 230, 125 S.Ct. at 748, quoting In re
Winship, 397 U.S. 358, 364; 90 S.Ct. 1068, 1073; 25
L.Ed.2d 368 (1970).
62Id., 543 U.S. at 230, 125 S.Ct. at 748, quoting United
States v. Gaudin, 515 U.S. 506, 511; 115 S.Ct. 2310,
2314; 132 L.Ed.2d 444 (1995).
63Booker, 543 U.S. at 231, 125 S.Ct. at 748, quoting
Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.
64Ring, 536 U.S. at 609, 122 S.Ct. at 2443.
65Summerlin, 542 U.S. at 349, 124 S.Ct. at 2521.
66Id., 542 U.S. at 351-53, 124 S.Ct. at 2522-23; Teague v.
Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
67Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20
L.Ed.2d 491 (1968).
68Ned v. State, 119 P.3d 438, 444-45 (Alaska App. 2005).
69See, for example, Carlson v. State, 128 P.3d 197, 204
(Alaska App. 2006).
70Oyler, 368 U.S. at 449, 82 S.Ct. at 502.
71Id., 368 U.S. at 453, 82 S.Ct. at 504.
72Id., 368 U.S. at 452 n. 5, 82 S.Ct. at 503 n. 5.
73Id., 368 U.S. at 451-52, 82 S.Ct. at 503.
74Id., 368 U.S. at 452, 82 S.Ct. at 504.
75See Grinols v. State, 10 P.3d 600, 610 n. 25 (Alaska App.
2000).
76The pertinent portion of Article I, Section 8 states: No
person shall be held to answer for a capital, or otherwise
infamous, crime unless on a presentment or indictment of a grand
jury, except in cases arising in the armed forces in time of war
or public danger.
77Like the corresponding provision of the United States
Constitution, Article I, Section 8 of the Alaska
Constitution refers to the right of indictment for capital
or otherwise infamous crimes. The phrase infamous crime has
long been construed to apply to all felonies. See United
States v. Powers, 1 Alaska 180, 185-86 (D. Alaska 1901).
This construction is now codified in Alaska Criminal Rule
7(a), which states that an indictment is required for any
offense which is punishable by a term of imprisonment
exceeding one year i.e., a felony. See AS 11.81.900(b)(24)
(the definition of felony).
78See, e.g., Cleveland v. State, __ P.3d __, Alaska App.
Opinion No. 2060 (August 25, 2006), slip opinion at p. 8
(aggravator (c)(18)(B)); Snelling v. State, 123 P.3d 1096,
1098 (Alaska App. 2005) (aggravator (c)(7)); Greist v.
State, 121 P.3d 811, 814-15 (Alaska App. 2005) (aggravator
(c)(19)); Grohs v. State, 118 P.3d 1080, 1083-84 (Alaska
App. 2005) (aggravator (c)(21)); Milligrock v. State, 118
P.3d 11, 15-16 (Alaska App. 2005) (aggravators (c)(7) and
(c)(8)).
79Cleveland, __ P.3d at __, Alaska App. Opinion No. 2060,
slip opinion at pp. 20-22.
80Allen v. State, 56 P.3d 683, 684-85 (Alaska App. 2002).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
