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Smart v. State (10/27/2006) ap-2070

Smart v. State (10/27/2006) ap-2070

                             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


TROY S. SMART, )
) Court of Appeals No. A-9025
Appellant, ) Trial Court No. 1KE-01-1382 Cr
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
JAYME SOBOCIENSKI, )
) Court of Appeals No. A-9037
Appellant, ) Trial Court No. 2NO-03-282 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2070 October 27, 2006
)
          Appeals  from the Superior Court, First  Judi
          cial  District,  Ketchikan, Larry  R.  Weeks,
          Judge  (Smart v. State), and Second  Judicial
          District,  Nome, Ben Esch, Judge (Sobocienski
          v. State).

          Appearances  in Smart v. State, File  No.  A-
          9025:   Quinlan Steiner (opening  brief)  and
          Linda  K.  Wilson  (reply  brief),  Assistant
          Public   Defenders,  and  Barbara  K.   Brink
          (opening  brief) and Quinlan  Steiner  (reply
          brief), Public Defenders, Anchorage, for  the
          Appellant.   Joshua  Fink,  Public  Advocate,
          Anchorage, as amicus curiae aligned with  the
          Appellant.   Timothy  W.  Terrell,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

          Appearances in Sobocienski v. State, File No.
          A-9037:  David W. Miner, Seattle, Washington,
          and  Joshua Fink, Public Advocate, Anchorage,
          for   the  Appellant.   Timothy  W.  Terrell,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.
          STEWART, Judge, concurring.
          COATS, Chief Judge, dissenting.
          MANNHEIMER, Judge, concurring.

          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,  under  the  Sixth  and Fourteenth Amendments,  a  criminal
defendant has the right to trial by jury  including the right  to
demand  proof  beyond a reasonable doubt  on any  issue  of  fact
(other  than  a prior conviction) that will increase the  maximum
penalty to which the defendant may be subjected.
          The  question  presented to this Court is  whether  the
right to jury trial recognized in Blakely v. Washington should be
applied  retroactively  that is, whether this Court should  grant
relief to a defendant whose sentence was imposed in violation  of
Blakely  if  the  defendants conviction was  already  final  when
Blakely was issued (June 24, 2004).
          Our answer to this question has two parts.
          First,  we  must  identify the  law  that  governs  our
inquiry   the  legal  test for assessing the retroactivity  of  a
federal constitutional decision like Blakely.
          The  Alaska  Supreme Court has adopted a  retroactivity
test modeled after the test endorsed by the United States Supreme
Court in Linkletter v. Walker.1  But in Teague v. Lane, 489  U.S.
288,  109  S.Ct. 1060, 103 L.Ed.2d 334 (1989), the United  States
Supreme  Court  abandoned  the Linkletter  test  in  favor  of  a
stricter  test   i.e.,  one that grants  retroactivity  in  fewer
instances.
          The  State  argues that, under the supremacy clause  of
the  federal Constitution, we are now bound to apply  the  Teague
test  when  assessing  whether a federal constitutional  decision
should  be  applied  retroactively in state criminal  cases.   We
conclude  that  the  State is wrong.  For the  reasons  explained
          here, we conclude that the Teague test applies only to federal
habeas  corpus litigation, that it does not bind the states,  and
that  this  Court is therefore obliged to apply the retroactivity
test adopted by the Alaska Supreme Court.
          Having   concluded  that  we  must  apply  the   Alaska
retroactivity  test,  the next question  is  whether,  under  the
Alaska  test,  Blakely  should  be  applied  retroactively.    We
conclude that one component of Blakely  its requirement of  proof
beyond  a  reasonable doubt  is essential to a  fair  and  lawful
determination of a defendants sentence under Alaskas  presumptive
sentencing  law.   Accordingly, we hold that  this  component  of
Blakely must be applied retroactively.
          Finally,  given the central importance of the guarantee
of jury trial in our criminal justice system, we conclude that if
one or more aggravators in a case must be relitigated because  of
a  Blakely  error  in  the standard of proof,  the  defendant  is
entitled to have a jury decide the disputed aggravators.

                            Part I:
             What Law Governs This Courts Decision?

     Are  state  courts  bound  by  the  retroactivity  test
     announced in Teague v. Lane when a state prisoner seeks
     the benefit of a new federal constitutional rule?
     
               The   Alaska  Supreme  Court  has  repeatedly
     addressed the question of whether, when a new  rule  is
     created  or recognized by judicial decision, that  rule
     should  be  applied retroactively  that is, applied  to
     defendants whose convictions were already final  before
     the rule was announced.2
               (For  purposes of this discussion, a criminal
     conviction  is final if there is no further possibility
     of   direct   review  or  certiorari  review   of   the
     conviction.  See Beard v. Banks, 542 U.S. 406, 411; 124
     S.Ct.  2504, 2510; 159 L.Ed.2d 494 (2004);  Caspari  v.
     Bohlen,  510  U.S. 383, 390; 114 S.Ct.  948,  953;  127
     L.Ed.2d 236 (1994).)
               The   Alaska  Supreme  Court  most   recently
     summarized  our states retroactivity test in  State  v.
     Semancik.
          
          We   consider  three  factors  when  deciding
          whether to apply a new rule retroactively  or
          prospectively:  (1) the purpose to be  served
          by  the  new rule; (2) the extent of reliance
          on  the  old rule; and (3) the effect on  the
          administration  of justice of  a  retroactive
          application of the new rule.
          
          Semancik, 99 P.3d 538, 543 (Alaska 2004).
          This  test  is  modeled  after  the
retroactivity  test endorsed  by  the  United
States Supreme Court in Linkletter v. Walker,
381 U.S. 618, 636-38; 85 S.Ct. 1731, 1741-42;
          14 L.Ed.2d 601 (1965).  And, because this
test  has  been adopted by our state  supreme
court, this Court is presumptively obliged to
apply  this test when deciding whether a  new
rule should be applied retroactively.
          But the United States Supreme Court
announced a new retroactivity test in  Teague
v.  Lane,  489 U.S. 288, 109 S.Ct. 1060,  103
L.Ed.2d  334 (1989).  In the cases  currently
before us, the State argues that we (and  all
other state courts) are now obliged to follow
the  Teague  retroactivity test  whenever  we
decide  the potential retroactive application
of  a  new rule of federal law  such  as  the
Sixth Amendment right to jury trial announced
in Blakely.
          We  conclude  that  the  State  has
misinterpreted Teague.  Although  the  Teague
decision    deals   with   the    issue    of
retroactivity,  Teague was  not  intended  to
limit  the  authority of  a  state  court  to
retroactively  apply rules of  constitutional
law  when  reviewing its own states  criminal
convictions.  Rather, as we explain here, the
Teague  decision was intended  to  limit  the
authority of federal courts to overturn state
criminal convictions in federal habeas corpus
proceedings.  The purpose of the Teague  test
is  to  minimize federal intrusion into state
criminal  proceedings  by  greatly  narrowing
the  instances  in which a federal  court  is
authorized  to  overturn  a  state   criminal
conviction  based on a rule of law  that  did
not come into existence until after the state
criminal conviction became final.

(a)   The background and the content of the Teague
decision

          In  order  to understand the Teague decision,
one must understand the context in which it arose.  The
purpose  of Teague was to ameliorate a problem  created
by  the federal Habeas Corpus Act of 1867  an act which
gave  federal  courts  the authority  to  grant  habeas
corpus relief to prisoners convicted of crimes in state
court if their federal rights had been violated.
          As this Court explained in Grinols v. State,3
the  United  States Congress inaugurated  modern  post-
conviction relief litigation when it passed the  Habeas
Corpus  Act.  Prior to the passage of this  Act,  there
was  essentially  only one ground  for  seeking  habeas
corpus  relief:   the assertion that  the  court  which
entered  the  criminal judgement against  the  prisoner
lacked jurisdiction to do so. But under the 1867 Act, a
state  prisoner could attack their criminal  conviction
          in federal court by alleging a violation of any right
guaranteed by federal law.4
          In  the  1950s  and 1960s, the United  States
Supreme  Court  issued  a  series  of  decisions   that
significantly expanded the procedural rights guaranteed
to   state   criminal  defendants  under  the   federal
Constitution.   As a result, state prisoners  began  to
resort  frequently to the federal courts, invoking  the
Habeas   Corpus   Act   to   challenge   their    state
convictions.5
          As  detailed  by  the United  States  Supreme
Court        in       Wainwright       v.       Sykes,6
    the    Supreme   Court   responded   with   various
procedural  rules  to  forestall  this  habeas   corpus
litigation,  or at least to defer federal consideration
of  state prisoners claims until those claims had  been
presented  to the state courts.  These rules  were  not
jurisdictional  limitations on  the  authority  of  the
federal  courts;  rather, these  rules  were  equitable
restrictions  on the federal courts exercise  of  their
habeas  corpus  authority   restrictions  designed   to
further the goals of federal-state comity and the  fair
and orderly litigation of state criminal cases.7
          In  Sykes itself, the Supreme Court held that
a  state  prisoner normally could not ask  the  federal
courts  to  adjudicate  a  claimed  violation  of   the
prisoners  federal rights if, because of  a  procedural
default  under  state rules (e.g., failure  to  make  a
contemporaneous objection at trial, or failure to raise
the  issue  on direct appeal), the prisoner was  barred
from  litigating this claim in state court.8  The  only
exception to this rule of exclusion, the Supreme  Court
declared,  was  if the state prisoner could  show  good
cause  for failing to raise the issue properly  in  the
state court, and resulting prejudice from the violation
of the prisoners federal rights.9
          But  although  the Sykes cause and  prejudice
rule  generally  operated  to restrict  federal  habeas
corpus   litigation,   the   rule   encouraged   habeas
litigation in one respect.  Under the Sykes rule, state
prisoners  remained  free  to  challenge  their   state
criminal  convictions by invoking a new  federal  right
that  was  recognized  after the  prisoners  conviction
became final.  This result followed from the fact that,
if  the federal right was truly new (in the sense  that
it  was  not  merely a straightforward  application  of
already  recognized rights), then, by  definition,  the
prisoner  had  good  cause for not asserting  this  new
federal right until it was announced.
          This was the precise holding in Reed v. Ross,
468  U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984):   the
Supreme Court declared that, when the judicial decision
that  established a state prisoners federal  claim  was
not  issued until after the prisoners conviction became
final, the prisoner would have cause (under Sykes)  for
          failing to comply with state procedural rules governing
the  raising  and preservation of that  federal  claim.
468 U.S. at 13, 104 S.Ct. at 2909.
          The Ross Court frankly acknowledged that,  by
its  decision, it was imposing a cost on  state  courts
by  expanding  the  federal courts  exercise  of  their
habeas   corpus  authority  to  overturn  state   court
convictions.10  And the Ross Court recognized  that  it
was  striking  a  balance  between  competing  societal
interests:
     
          A  [federal] habeas courts decision  ...
     to  review  the  merits of a state  prisoners
     constitutional claim, when the  prisoner  has
     failed  to follow applicable state procedural
     rules  in  raising the claim, implicates  two
     sets of competing concerns.  On the one hand,
     there  is  Congress  expressed  interest   in
     providing a federal forum for the vindication
     of   the   constitutional  rights  of   state
     prisoners.  There can be no doubt that[,]  in
     enacting  [28 U.S.C.]  2254, Congress  sought
     to  interpose the federal courts between  the
     States  and the people, as guardians  of  the
     peoples federal rights  to protect the people
     from   unconstitutional  action.    [Citation
     omitted]
     
     On  the  other hand, there is the States
interest  in the integrity of its  rules  and
proceedings   and   the   finality   of   its
judgments,   an   interest  that   would   be
undermined  if  the federal courts  were  too
free  to  ignore  procedural  forfeitures  in
state court.  The criminal justice system  in
each  of the 50 States is structured  ...  to
resolve  all  questions  incident  to   [the]
determination   [of  guilt   or   innocence],
including   the  constitutionality   of   the
procedures  leading up to  the  verdict.  ...
[W]e   have   long   recognized   that    ...
considerations of comity and concerns for the
orderly  administration of  criminal  justice
[sometimes] require a federal court to  forgo
the exercise of its habeas corpus power.

Ross, 468 U.S. at 10-11, 104 S.Ct. at 2907.
          Despite  its concerns for  federal-
state  comity and the finality of state court
judgements, the Ross Court resolved the issue
in  favor  of allowing the federal courts  to
entertain  the state prisoners habeas  corpus
claim.    The  Court  held  that  the   Sykes
requirement of cause is met when a  defendant
fails to raise a constitutional issue if  the
          basis of that constitutional claim was not
reasonably  known  to the  defendant  at  the
time.11
          A   mere  five  years  later,   the
Supreme Court decided Teague, a decision that
all but abrogated the habeas corpus authority
granted to the federal courts in Ross.
          (Technically, Justice OConnors lead
opinion   in   Teague  represented   only   a
plurality  of  the  Court,  not  a  majority.
However,    this   plurality   opinion    has
subsequently been adopted by a clear majority
of  the Supreme Court.  See, e.g., Saffle  v.
Parks,  494  U.S.  484, 110 S.Ct.  1257,  108
L.Ed.2d  415 (1990); Butler v. McKellar,  494
U.S.  407,  110 S.Ct. 1212, 108  L.Ed.2d  347
(1990).)
          In  the five years between Ross and
Teague,  the membership of the Supreme  Court
changed.   Ross  was a five-to-four  decision
and by 1989, the remaining dissenters in Ross
had mustered the votes to pare back the scope
of  the federal habeas corpus relief that was
granted in Ross.
          The  Teague  decision  accomplished
this    goal,    not   by   renouncing    the
interpretation of good cause adopted in Ross,
but  rather by announcing a new retroactivity
rule   a rule that essentially barred federal
courts from granting habeas corpus relief  to
state  prisoners whose claims were  based  on
new  rules of federal law, even though  these
prisoners  could demonstrate good  cause  (as
defined  in  Sykes and Ross) for not  raising
their claims earlier.
          In  other  words, Teague  addresses
the  retroactivity of federal  constitutional
decisions, but in the specific context  of  a
state  prisoners  effort  to  obtain  federal
habeas corpus relief based on a federal right
that   was   announced  after  the  prisoners
conviction became final in the state courts.
          As  we  explained above, Ross  held
that  such  a  claim circumvents  the  normal
procedural  bar  erected  by  the  cause  and
prejudice requirement of Wainwright v. Sykes.
But  the  Teague plurality declared  that  it
made  no  difference whether  the  petitioner
(Teague) could show good cause for failing to
raise  his  federal claim  earlier   because,
even  if  Teagues habeas corpus  lawsuit  was
allowed  to go forward, Teague would  not  be
entitled to any relief.
          According  to the Teague plurality,
the  reason Teague was not entitled to relief
          is that a new federal constitutional rule
should  normally not be applied to defendants
who   are  pursuing  collateral  attacks   on
criminal convictions that were already  final
when the new rule was announced.  In criminal
litigation,     Justice    OConnor     wrote,
considerations of finality [are]  significant
and compelling:

Application  of  constitutional  rules  [that
were]   not  in  existence  at  the  time   a
conviction  became final seriously undermines
the  principle of finality which is essential
to  the  operation  of our  criminal  justice
system.   Without finality, the criminal  law
is  deprived of much of its deterrent effect.
...  No one, not criminal defendants, not the
judicial  system, not society as a  whole  is
benefited by a judgment [that provides]  that
a man shall tentatively go to jail today, but
tomorrow   and   every  day  thereafter   his
continued  incarceration shall be subject  to
fresh litigation.

Teague,  489 U.S. at 309, 109 S.Ct. at  1074-
75.12
          In  other words, Teague is premised
on the principle that if the litigation of  a
criminal case complied with the law that  was
in existence at the time, and if the criminal
judgement has become final, then there should
be  very few circumstances which compel a re-
examination  of the criminal judgement  based
on new developments in constitutional law.  A
collateral   attack  on  a   final   criminal
judgement should be allowed, Justice  OConnor
concluded,  only  if  the new  constitutional
rule [puts] certain kinds of primary, private
individual conduct beyond the power  of  [the
states    to   regulate   through    criminal
legislation] or unless the new constitutional
rule   requires   the   observance   of   ...
procedures  that are implicit in the  concept
of ordered liberty.13
          According  to the Teague  plurality
opinion,  this second category is limited  to
new rules which improve the pre-existing fact-
finding  procedures to such  an  extent  that
their  absence  implicate[s] the  fundamental
fairness   of  [a]  trial14   new  procedures
without  which the likelihood of an  accurate
conviction is seriously diminished.15
          It  is true that section IV of  the
Teague  decision  contains a  discussion  and
criticism   of  the  Courts  prior  decisions
          concerning retroactivity  in particular, the
test  announced  in Linkletter  v.  Walker.16
See Teague, 489 U.S. at 302-05, 109 S.Ct.  at
1071-73.
          Nevertheless,    Justice    OConnor
declared,  the  Courts  decision  to  abandon
Linkletter  in  favor of a  more  restrictive
test  was  not  based  on  the  Courts  views
concerning  the proper scope of retroactivity
per  se.  Rather, the Courts main purpose  in
Teague  was  to fashion equitable limitations
on the habeas corpus authority of the federal
courts   the authority of the federal  courts
to overturn state court judgements:

[The doctrine of] retroactivity for cases  on
collateral   review  [can]   be   responsibly
determined  only by focusing ... on  the  ...
adjudicatory  process in which [these]  cases
arise.   The relevant frame of reference,  in
other  words, is not the purpose of  the  new
[constitutional]  rule  whose   benefit   the
defendant seeks, but instead the purposes for
which  the  writ  of habeas  corpus  is  made
available.  ...

     Habeas   corpus  always   has   been   a
collateral remedy [that] provid[es] an avenue
for  [overturning] judgments that have become
otherwise  final.  It is not  designed  as  a
substitute  for direct review [of a  criminal
conviction].  [Because of this, the] interest
in  leaving [the underlying] litigation in  a
state  of repose, ... not subject to  further
judicial revision, may quite legitimately  be
found   ...  to  outweigh[,]  in   ...   most
instances[,]   the  competing   interest   in
readjudicating     [criminal]     convictions
according to all [of the] legal standards  in
effect when a habeas petition is filed.

     [Rather,] it is sounder, in adjudicating
habeas petitions, generally to apply the  law
prevailing   at  the  time  [the  defendants]
conviction became final ... .

Teague, 489 U.S. at 305-06, 109 S.Ct. at 1073
(emphasis added).17
          Justice OConnor then added that the
scope  of  federal habeas corpus  relief  had
never been defined simply by reference  to  a
perceived  need to assure that an  individual
accused of crime is afforded a trial free  of
constitutional  error.18  Rather,  she  said,
the   Supreme   Court  has  recognized   that
          interests of [federal-state] comity and
finality  [of criminal judgements] must  also
be considered in determining the proper scope
of  habeas review.19  And, as we noted above,
Justice  OConnor declared that considerations
of  finality [are] significant and compelling
... in the criminal [law] context.20
          Quoting  Professor Paul J. Mishkin,
Justice  OConnor stated that the problem  was
not   so   much   one  of  prospectivity   or
retroactivity   of  [a  new   constitutional]
rule.21   Rather, the problem was  to  define
the situations in which state prisoners could
obtain federal habeas corpus [review]  to  go
behind  [an]  otherwise  final  judgment   of
conviction.22  Justice OConnor concluded that

[t]he  costs  imposed  upon  the  States   by
retroactive  application  of  new  rules   of
constitutional  law  on  habeas  corpus   ...
generally far outweigh the benefits  of  this
application.   ...    In   many   ways    the
application   of  new  rules  to   cases   on
collateral review may be more intrusive  than
the  enjoining of criminal prosecutions,  ...
for  it  continually  forces  the  States  to
marshal resources in order to keep in  prison
defendants whose trials and appeals conformed
to  then-existing  constitutional  standards.
Furthermore,  as we recognized  in  Engle  v.
Isaac,   [s]tate  courts  are  understandably
frustrated   when   they   faithfully   apply
existing  constitutional law only to  have  a
federal  court  discover, during  a  [habeas]
proceeding, new constitutional commands.

Teague,  489 U.S. at 310, 109 S.Ct.  at  1075
(quoting Engle v. Isaac, 456 U.S. 107, 128 n.
33;  102  S.Ct. 1558, 1572 n. 33; 71  L.Ed.2d
783 (1982)).
          For  these reasons, Justice OConnor
said,  the Teague plurality favored  adopting
Justice    Harlans   doctrine    of    narrow
retroactivity for criminal cases  on  federal
habeas review.  Teague, 489 U.S. at 310,  109
S.Ct. at 1075.
          Justice  Brennan, who had  authored
Reed  v.  Ross  a  scant five  years  before,
dissented  from the decision in Teague.   He,
too, clearly saw that the issue in Teague was
not  retroactivity  per se,  but  rather  the
scope  of  federal  habeas corpus  review  of
state criminal convictions:

     Today a plurality of this Court, without
     benefit of briefing and oral argument, adopts
a  novel threshold test for federal review of
state  criminal convictions on habeas corpus.
...  [T]he plurality would for the first time
preclude  the federal courts from considering
on   collateral  review  a  vast   range   of
important constitutional challenges ... [even
when] those challenges have merit ... .

Teague, 489 U.S. at 326-27, 109 S.Ct. at 1084
(Brennan, J., dissenting) (emphasis added).
     (b)   Why  we conclude that the Supreme Court  did
  not  intend  the  Teague  retroactivity  rule  to  be
  binding on state courts

          Having  reviewed the context in which  Teague
was  decided, and having closely examined the  text  of
the Teague decision, we now turn to a fundamental issue
that divides this Court:  Did the United States Supreme
Court  intend for the states to be bound by the  Teague
retroactivity test?
          In  its brief to this Court, the State argues
that,   under  federal  law,  the  retroactivity   test
announced in Teague governs state courts application of
new  rules of federal constitutional law (such  as  the
new interpretation of the Sixth Amendment right to jury
trial  announced  in  Blakely).  Judge  Coats,  in  his
dissenting  opinion,  adopts  this  interpretation   of
Teague.
          In reaching this conclusion, both Judge Coats
and  the State rely on the United States Supreme Courts
decision  in  American Trucking Associations,  Inc.  v.
Smith,  496  U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d  148
(1990).   In  American  Trucking,  the  Supreme   Court
stated:
     
          The   determination   [of]   whether   a
     constitutional  decision  of  this  Court  is
     retroactive  that is, whether [it] applies to
     conduct  or  events that occurred before  the
     date  of the decision  is a matter of federal
     law.   [Although] state courts generally have
     the  authority to determine the retroactivity
     of  their own decisions ... [t]he retroactive
     applicability of a constitutional decision of
     this  Court  ... is every bit as  much  of  a
     federal   question   as   [the   issues    of
     substantive  law  resolved  in  the  decision
     itself].
     
     Id., 496 U.S. at 177-78, 110 S.Ct. at 2330.
          Based on this passage from American
Trucking, Judge Coats and the State  conclude
that  this Court is obliged, by federal  law,
to  apply  the  Teague test  when  we  decide
whether  to  grant relief to  defendants  who
were  sentenced in violation of  Blakely  but
whose  convictions became  final  before  the
Blakely decision was issued.
          But  American Trucking merely  says
that,   under  the  supremacy  clause,  state
courts  must follow any rule of retroactivity
imposed  on  them by the Supreme Court.   The
underlying  question  that  remains   to   be
addressed    the   question   that   American
Trucking  does  not answer   is  whether  the
Supreme    Court    intended    the    Teague
retroactivity  test  to  be  binding  on  the
states.
          It  is  true that Justice  OConnors
opinion  in  Teague contains a discussion  of
the  principles of retroactivity  in  general
i.e.,  the  principles employed  to  identify
situations in which it is fair to apply or to
withhold a new rule of law in criminal  cases
that  have already been concluded.   However,
as   we  explained  in  some  detail  in  the
preceding  section of this  opinion,  Justice
OConnor  ended this discussion  by  declaring
that,    ultimately,    the    question    of
retroactivity had to be answered by examining
the purposes for which the [federal] writ  of
habeas corpus is made available.23
          The   Teague   decision  explicitly
states  that the problem the Teague plurality
wished  to  resolve was not so  much  one  of
prospectivity  or  retroactivity  of  [a  new
constitutional] rule, but rather the  problem
of  defining  the situations in  which  state
prisoners  might  equitably  demand   federal
habeas  corpus  [review] to  go  behind  [an]
otherwise final judgment of conviction.24  To
resolve  this  problem, the Teague  plurality
fashioned  a  test that greatly narrowed  the
situations  in  which state  prisoners  could
obtain  retroactive  application  of  a   new
constitutional  rule.  The  Teague  test  was
consciously designed to promote federal-state
comity and to preserve the states significant
and  compelling interest in the  finality  of
their criminal judgements.25
          As    the   Supreme   Court   later
explained  in ODell v. Netherland,  521  U.S.
151,  117 S.Ct. 1969, 138 L.Ed.2d 351 (1997),
At  bottom, ... the Teague doctrine validates
reasonable,  good-faith  interpretations   of
existing  precedents made by state  courts[,]
even  though [the state courts interpretation
of  the law is] shown to be contrary to later
decisions.  Id., 521 U.S. at 156,  117  S.Ct.
          at 1973.26
          In other words, the Teague decision
appears  to  derive  from the  same  concerns
about  federal-state relations that motivated
Wainwright  v.  Sykes and the  various  other
decisions  in which the Supreme Court  placed
equitable  restrictions on the  authority  of
federal courts to grant habeas corpus  relief
to  state prisoners.  Teague does not address
the authority of state courts; rather, Teague
restricts the authority of federal courts  to
overturn state criminal convictions.
          This  interpretation of  Teague  is
confirmed  by later decisions of the  Supreme
Court.  The Supreme Court has repeatedly held
that  Teagues  principle of non-retroactivity
is  not  jurisdictional  in  the  sense  that
federal  courts  must raise  and  decide  the
issue  sua  sponte.  Caspari v.  Bohlen,  510
U.S.  383,  389;  114  S.Ct.  948,  953;  127
L.Ed.2d  236  (1994).  Rather,  Teague  is  a
procedural  defense that a  state  government
may   interpose  in  federal  habeas   corpus
litigation, to prevent a federal  court  from
reaching  the  merits of  a  state  prisoners
constitutional claim.
          Although the federal courts  always
have  the  discretion to consider whether  to
abstain  from  granting habeas  relief  if  a
state  prisoners claim fails the Teague  test
for  retroactivity, a federal  court  becomes
obliged to apply the Teague test only if  the
state  raises the Teague defense in a  timely
fashion.  Bohlen, 510 U.S. at 389, 114  S.Ct.
at 953.
          See God¡nez v. Moran, 509 U.S. 389,
397   n.  8; 113 S.Ct. 2680, 2685 n.  8;  125
L.Ed.2d 321 (1993), and Schiro v. Farley, 510
U.S. 222, 228-29; 114 S.Ct. 783, 788-89;  127
L.Ed.2d 47 (1994)  both holding that a  state
forfeits  the  protection of  Teague  if  the
state fails to assert this procedural defense
in  a  timely  manner.  And  see  Collins  v.
Youngblood, 497 U.S. 37, 41; 110 S.Ct.  2715,
2718;  111  L.Ed.2d  30  (1990),  where   the
Supreme Court proceeded to decide the  merits
of  a  state  prisoners constitutional  claim
after  the  states attorney expressly  waived
the   protection   of  Teague   during   oral
argument.
          This  principle  that Teague limits
the  authority of the federal courts but does
not  limit the authority of state courts   is
also   illustrated  by  the  Supreme   Courts
decision in Horn v. Banks, 536 U.S. 266,  122
          S.Ct. 2147, 153 L.Ed.2d 301 (2002).
          Banks  was a Pennsylvania  prisoner
who  was  convicted  of several  murders  and
sentenced to death.  His convictions and  his
sentence  were  affirmed by the  Pennsylvania
Supreme  Court, and his federal petition  for
writ  of  certiorari was  denied  in  October
1987.27
          Eight  months later (in June 1988),
the   Supreme   Court   decided   Mills    v.
Maryland.28  In Mills, the Supreme Court held
that,   in  death  penalty  cases,   it   was
unconstitutional  to require  the  jurors  to
unanimously    agree   that   a    particular
mitigating  factor  had  been  proved  before
allowing   the   jurors  to   consider   that
mitigating  factor when deciding whether  the
defendant should receive the death penalty.
          Following  the decision  in  Mills,
Banks  filed  for post-conviction  relief  in
state   court,   arguing   that   the    jury
instructions  in  his  case  violated  Mills.
When  Bankss  case  reached the  Pennsylvania
Supreme Court, the Pennsylvania court assumed
(without engaging in a Teague analysis)  that
the    Mills    rule   should   be    applied
retroactively   to  Banks,  but   the   court
concluded  that  the  jury  instructions   in
Bankss case did not violate Mills.29
          Banks then filed a federal petition
for  writ  of  habeas  corpus.   The  federal
district  court denied relief, but the  Third
Circuit  concluded that the jury instructions
in  Bankss case had, in fact, violated Mills,
and  thus  the Third Circuit reversed  Bankss
death sentence.30
          In  this federal habeas litigation,
the  State  of Pennsylvania argued  that  the
federal courts should not reach the merits of
Bankss  claim  because,  even  if  Banks  was
right,  the  Mills rule was  not  retroactive
under  the  Teague test  and, therefore,  the
federal  courts  were  barred  from  granting
habeas  corpus  relief to Banks.31   But  the
Third  Circuit concluded that Teague did  not
apply to Bankss case because the Pennsylvania
Supreme  Court had not relied on  notions  of
retroactivity  when it decided  Bankss  case;
instead,  the Pennsylvania court had  reached
the  merits of Bankss Mills argument.32   The
Third   Circuit   held  that,   under   these
circumstances, Teague did not bar the federal
courts  from likewise reaching the merits  of
Bankss argument.33
          The  case then went to the  Supreme
          Court.  In Horn v. Banks, 536 U.S. 266, 122
S.Ct.  2147,  153  L.Ed.2d  301  (2002)  (per
curiam),   the   Supreme  Court   unanimously
reversed the Third Circuit on the question of
whether  Bankss case was governed by  Teague.
The  Supreme  Court explained that,  even  in
cases where the state courts reach the merits
of  a prisoners federal constitutional claim,
the  federal courts remain obliged  to  apply
the  Teague  restriction on retroactivity  if
the  state  government properly  raises  this
procedural defense when the litigation  moves
to  federal court.  Banks, 536 U.S.  at  272,
122 S.Ct. at 2151.
          For present purposes, the important
thing  about  the Supreme Courts decision  in
Horn  v. Banks is that the Supreme Court gave
no  hint  that the Pennsylvania state  courts
committed  error  when  they  addressed   the
merits of Bankss constitutional claim without
first  considering whether the Mills decision
was   retroactive  under  the  Teague   test.
Rather,  the Supreme Court declared that  the
Third   Circuit  committed  error   when   it
addressed the merits of Bankss claim  without
first considering the Teague issue.
          The  Supreme  Courts  decision   in
Banks,  as  well as the Courts  decisions  in
Moran,  Schiro, and Youngblood,  all  support
the  conclusion that Teague binds the federal
courts  when they consider a state  prisoners
habeas corpus claim (assuming that the  state
government  raises a timely Teague  objection
in  federal court), but that Teague does  not
bind  the state courts.  State courts  remain
free  to  reach  the merits  of  a  prisoners
federal   constitutional  claim   even   when
federal habeas corpus relief would be  barred
because of Teague.
          We  acknowledge that the courts  of
several  other  states  have  held  that  the
Teague  test  governs state litigation.   But
most   of  these  state  courts  have  simply
assumed,  apparently  without  examining  the
issue,  that Teague controls state litigation
as  well  as federal habeas litigation.   See
Johnson  v. Warden, 591 A.2d 407, 410  (Conn.
1991);  Whisler v. State, 36  P.3d  290,  296
(Kan.  2001); People v. Eastman,  648  N.E.2d
459,  464-65;  624 N.Y.S.2d 83,  88-89  (N.Y.
1995); Agee v. Russell, 751 N.E.2d 1043, 1046-
47  (Ohio  2001); Thomas v. State,  888  P.2d
522,    527   (Okla.   Crim.   App.    1994);
Commonwealth  v. Hughes, 865  A.2d  761,  780
(Pa.  2004); State v. G¢mez, 163 S.W.3d  632,
650-51  (Tenn.  2005); Taylor  v.  State,  10
S.W.3d 673, 679 (Tex. Crim. App. 2000).
          Among  the state courts which  have
addressed  the fact that there is a  question
concerning  the scope of Teague, only  a  few
have held that Teague binds the states.   See
State  v. Houston, 702 N.W.2d 268, 270 (Minn.
2005),  recently re-affirmed in  Danforth  v.
State,  718  N.W.2d  451, 455  (Minn.  2006);
State  v. Egelhoff, 900 P.2d 260, 267  (Mont.
1995); Page v. Palmateer, 84 P.3d 133, 136-38
(Or. 2004).
          The  majority of courts which  have
addressed  this  issue  have  concluded  that
Teague   does  not  govern  a  state   courts
decision to grant retroactive application  of
a  new  constitutional rule  in  state  post-
conviction relief proceedings  that, instead,
Teague  binds only federal courts in  federal
habeas corpus proceedings.
          See  People  v. Bradbury,  68  P.3d
494, 498 (Colo. App. 2002) (asserting that  a
state  court  has the authority  to  adopt  a
different  retroactivity rule, but  declining
to  do so); Johnson v. State, 904 So.2d  400,
408-09 (Fla. 2005) (As courts in other states
have  noted,  state courts are not  bound  by
Teague  in  determining the retroactivity  of
decisions.  ...   We continue  to  apply  our
longstanding  Witt analysis,  which  provides
more  expansive retroactivity standards  than
those adopted in Teague.); Figarola v. State,
841 So.2d 576, 577 n. 1 (Fla. App. 2003) (The
Supreme  Courts  opinion in Teague  reflected
that  courts  narrowing view of the  rule  of
federal    habeas   corpus.     The    policy
considerations   behind   Teague   are    not
necessarily the same as those for state court
post-conviction relief.); People v.  Flowers,
561  N.E.2d  674, 682 (Ill. 1990) (concluding
that  Teague  applies only to federal  habeas
corpus  litigation,  but  deciding  to  adopt
Teague  as a matter of state law);  State  v.
Mohler,  694  N.E.2d 1129, 1132  (Ind.  1998)
(Teague    established   the    retroactivity
standard for federal courts reviewing  habeas
corpus   petitions  for  relief  from   state
judgments.    State   courts   [adjudicating]
claims for collateral review ... are free  to
set their own retroactivity rules independent
of  Teague.); Brewer v. State, 444 N.W.2d 77,
81  (Iowa 1989) (agreeing with the policy  of
Teague  and adopting it as a matter of  state
law);  State  ex rel. Taylor v. Whitley,  606
So.2d  1292,  1296 (La. 1992) ([W]e  are  not
bound  to adopt the Teague standards.); State
v.  Whitfield, 107 S.W.3d 253, 267 (Mo. 2003)
(It  is up to each state to determine whether
to  apply the rule set out in Teague, [or] to
continue  to  apply  the  rule  set  out   in
Linkletter  ..., or to apply yet  some  other
rule   appropriate   for  determining   [the]
retroactivity of a new constitutional rule to
cases  on collateral review.  So long as  the
states  test  is not narrower than  that  set
forth  in Teague, it will pass constitutional
muster.);  Colwell  v. State,  59  P.3d  463,
470-71  &  n. 41 (Nev. 2002) (Teague  is  not
controlling on this court, other than in  the
minimum       constitutional      protections
established  by  its  two  exceptions.    ...
States    are   free   to   provide   greater
protections in their criminal justice  system
than  the  Federal  Constitution  requires.);
State  v. Lark, 567 A.2d 197, 203 (N.J. 1989)
(concluding   that,  although   the   analogy
between federal habeas corpus proceedings and
state post-conviction relief proceedings  was
imperfect,  the  two types of post-conviction
litigation were sufficiently similar that the
court  should follow the Teague retroactivity
rule, at least in the case before the court);
State  v.  Evans,  114 P.3d 627,  633  (Wash.
2005)  (holding  that  Teague  is  ultimately
grounded   in  important  considerations   of
federal-state relations, and that Teague does
not  limit a state courts authority to  grant
post-conviction relief based on a retroactive
application of Blakely).
          In  addition to the decisions cited
in  the preceding paragraph, the words of the
South  Dakota  Supreme  Court  in  Cowell  v.
Leapley,  458  N.W.2d 514  (S.D.  1990),  are
particularly  noteworthy and  instructive  on
this issue:

     The  Teague  decision ... arose  in  the
context of interpreting federal habeas corpus
law,   a   right   granted  through   federal
statutes.  ...  The various states, including
South  Dakota, have created state  rights  of
habeas  corpus through statutes.   ...   Each
sovereign has the right to decide how it will
allow  access  to this extraordinary  remedy.
The   federal  government  controls  how   it
permits  access to the remedy in its  courts,
and  South  Dakota establishes  grounds  that
will  provide access to habeas corpus in  our
courts.   Simply put, it was error  [for  the
lower  court] to hold that a federal decision
on  what  criteria to apply  for  retroactive
application  of  constitutional  law   in   a
federal   habeas   corpus   proceeding    was
controlling on a retroactivity question in  a
state habeas corpus proceeding.

Cowell, 458 N.W.2d at 517.
See also Edwards v. People, 129 P.3d 977, 981-82 (Colo.
2006),  and  State  v. Tallard, 816 A.2d  977,  979-981
(N.H.  2003)  (both courts recognizing the  possibility
that   Teague   does   not  bind   the   states,   then
circumventing the problem by deciding, as a  matter  of
state law, to apply the Teague rule).
In  his dissent, Judge Coats does not acknowledge these
decisions (with the exception of the Washington Supreme
Courts decision in State v. Evans, which he mentions at
the  end  of  a  long footnote).  The  State,  however,
explicitly contends that all of these courts are wrong,
and  that the Teague rule does bind the states  on  the
issue   of  whether  federal  constitutional  decisions
should be applied retroactively.
The  State argues that the United States Supreme  Court
intended  for  the  Teague  retroactivity  rule  to  be
binding  on  the  states to ensure a  uniform  national
definition  of constitutional liberties.  According  to
the    State,   a   uniform   definition   of   federal
constitutional  rights  must  include  a  uniform  rule
concerning the retroactive application of those rights.
The  State  points out that if states  are  allowed  to
follow   their   own  law  regarding  the   retroactive
application  of new constitutional rules to  defendants
seeking post-conviction relief, defendants in different
states will be treated differently.
          It   is   true  that  if  the  states  have   different
retroactivity  rules,  defendants seeking post-conviction  relief
under  state  law will meet with different results, depending  on
which  state  law governs their litigation.  But the question  is
whether the United States Supreme Court intended to forbid this.
          As  we  explained above, the primary motivation  behind
Teague  was  an  effort to promote federal-state comity,  and  to
protect  the finality of state criminal convictions, by  limiting
the  ability  of federal courts to use the federal Habeas  Corpus
Act to overturn state criminal convictions based on new rules  of
law.   This  is how Justice OConnor described the Teague  opinion
three years later:
          
               Teague  simply  requires  that  a  state
          conviction [under review in a] federal habeas
          [proceeding generally] be judged according to
          the  law  in  existence when  the  conviction
          became final.
          
          Wright v. West, 505 U.S. 277, 304; 112  S.Ct.
          2482,  2497; 120 L.Ed.2d 225 (1992) (OConnor,
          J.,  concurring).  See also Daniels v. United
          States, 254 F.3d 1180, 1193 (10th Cir.  2001)
          (en  banc)  ([T]he Teague rule was  based  in
          large  part upon the need for federal  courts
          to   respect  the  decisions  made  by  state
          courts.)
                    If   the   primary  purpose  behind
          Teague  is  to  limit the  scope  of  federal
          habeas   corpus  review  of  state   criminal
          convictions,   rather   than    to    achieve
          uniformity of results among the states,  then
          one  would  expect the Supreme Court  not  to
          care if a state government declined to assert
          its  rights  under Teague  thus allowing  the
          federal  courts  to decide the  merits  of  a
          state   prisoners  claim  for  habeas  corpus
          relief, even though the claim would otherwise
          be  barred  by Teague.  And this is precisely
          what happened in a case we mentioned earlier,
          Collins v. Youngblood, 497 U.S. 37, 110 S.Ct.
          2715, 111 L.Ed.2d 30 (1990).
          Youngblood was a state prisoner who
was  seeking  federal  habeas  corpus  relief
based  on  a new rule of constitutional  law.
Even  though Teague would apparently bar this
litigation, [t]he State of Texas ... did  not
address [the Teague] retroactivity [issue] in
its  petition for certiorari or in its briefs
on the merits, and when asked about the issue
at   oral   argument,  counsel  [for   Texas]
answered  that  the State had chosen  not  to
rely  on  Teague.  Youngblood,  497  U.S.  at
40-41, 110 S.Ct. at 2718.  The Supreme  Court
responded  to this announcement by  declaring
that,  given the position taken by the  State
of  Texas, the Court would proceed to  decide
the merits of Youngbloods case:

Although  the  Teague  rule  is  grounded  in
important   considerations  of  federal-state
relations,  we think it is not jurisdictional
in  the sense that this Court ... must  raise
and  decide  the  [retroactivity]  issue  sua
sponte.    ...   We  granted  certiorari   to
consider  the merits of [Youngbloods]  claim,
and we proceed to do so.

Youngblood, 497 U.S. at 41, 110 S.Ct. at 2718
(emphasis in the original).
          A  few  years later, in God¡nez  v.
Moran,  509  U.S. 389, 397  n. 8;  113  S.Ct.
2680, 2685 n. 8; 125 L.Ed.2d 321 (1993),  and
again in Schiro v. Farley, 510 U.S. 222, 228-
29;  114  S.Ct. 783, 788-89; 127  L.Ed.2d  47
(1994),  the Supreme Court declared that  the
Teague rule created a procedural defense that
state  governments might  raise  if  a  state
prisoner sought federal habeas corpus  relief
and  that this defense was forfeited  if  the
state failed to assert it in a timely manner.
          The  Supreme  Courts  decisions  in
Youngblood,  Moran,  and  Schiro  are  simply
inconsistent  with the States assertion  that
the  Teague  rule  was  intended  to  achieve
nationwide   uniformity  in  the  retroactive
application of federal constitutional  rules.
By  allowing the State of Texas to waive  the
protection of Teague in the Youngblood  case,
and by declaring that Nevada and Indiana had,
through inaction, forfeited the protection of
Teague  in  the Moran and Schiro  cases,  the
United   States   Supreme   Court   expressly
countenanced a non-uniform application of the
Teague restrictions on retroactivity.
          The  Supreme  Courts  decisions  in
Youngblood,  Moran, and Schiro  confirm  that
the  underlying  aim  of  Teague  is  not  to
achieve  a  uniformity of results  among  the
fifty  states, but rather to impose equitable
restrictions  on the federal courts  exercise
of  their authority under the Federal  Habeas
Corpus   Act   to   review   state   criminal
convictions.
          For  these  reasons, we reject  the
States  contention  that  we  are  bound   by
federal law to apply the Teague retroactivity
test   when   we   decide  whether   Blakelys
expansion  of  the Sixth Amendment  right  to
jury  trial  should be applied retroactively.
Rather,   we   conclude   that   the   Teague
retroactivity test binds federal courts,  not
state courts.

If we are not bound by the Teague rule, what law should
we   apply  when  deciding  the  retroactivity  of
Blakely?

     The  Supreme  Courts decision in Griffith  v.
Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93  L.Ed.2d
649 (1987), governs the retroactive application of
Blakely  to defendants whose convictions were  not
yet  final  when Blakely was decided  because  the
Griffith  rule of retroactivity expressly  applies
to  all defendants, both state and federal,  whose
convictions are not final (i.e., whose  cases  are
still  pending  on  direct  review  or  certiorari
review)   when  a  new  constitutional   rule   is
announced.34
     But  the  question confronting this Court  is
whether Blakely should be applied retroactively to
state  defendants whose convictions  were  already
     final when Blakely was decided (June 24, 2004).
As  we have just explained, no federal law governs
our  decision on this matter.  We must decide this
issue under state law.
          As we noted at the beginning of this opinion,
the  Alaska Supreme Court has repeatedly addressed  the
question  of  whether, when a new rule  is  created  or
recognized  by judicial decision, that rule  should  be
applied retroactively.  See State v. Semancik, 99  P.3d
538,  543  (Alaska  2004); State v. Wickham,  796  P.2d
1354,  1358-59 (Alaska 1990); State v. Glass, 596  P.2d
10,  12-13 (Alaska 1979); Judd v. State, 482 P.2d  273,
278  (Alaska  1971).  The Alaska test for retroactivity
is summarized in Semancik.
     
     We   consider  three  factors  when  deciding
     whether to apply a new rule retroactively  or
     prospectively:  (1) the purpose to be  served
     by  the  new rule; (2) the extent of reliance
     on  the  old rule; and (3) the effect on  the
     administration  of justice of  a  retroactive
     application of the new rule.
     
     Semancik, 99 P.3d at 543.
               This  Alaska  test for  retroactive
     application  of a new rule is  modeled  after
     the   test  endorsed  by  the  United  States
     Supreme  Court in Linkletter v.  Walker,  381
     U.S. 618, 636-38; 85 S.Ct. 1731, 1741-42;  14
     L.Ed.2d  601  (1965).  It is  true  that  the
     United  States  Supreme Court  abandoned  the
     Linkletter test in Teague v. Lane, but (as we
     have explained here) we are not bound by  the
     Teague  decision.  Nevertheless, Teague  does
     contain   an   extensive  critique   of   the
     Linkletter test.  In Teague, Justice  OConnor
     asserted that the Linkletter test
     
     has  not led to consistent results.  Instead,
     it  has  been  used to limit  application  of
     certain  new rules to cases on direct review,
     other new rules only to the defendants in the
     cases  announcing  [those] rules,  and  still
     other  new  rules  to cases in  which  trials
     [had] not yet commenced.
     
Teague,  489 U.S. at 302, 109 S.Ct. at  1071.
As  a  consequence,  Justice  OConnor  wrote,
commentators have had a veritable  field  day
with  the Linkletter standard, with  much  of
the   discussion  being  more   than   mildly
negative.  Id., 489 U.S. at 303, 109 S.Ct. at
1071.35
          Moreover,  several  of  the   state
courts that have recognized that they are not
          bound by the Teague retroactivity rule have
nevertheless  adopted the Teague  rule  as  a
matter of state law  either because they were
troubled  by  the difficulties posed  by  the
Linkletter  rule,  or  simply  because   they
wished   to  bring  their  state   law   into
conformity with federal law on this subject.
          But  this  Court is an intermediate
appellate   court.   Whatever  may   be   the
relative   advantages   of   preserving   the
Linkletter test, or abandoning Linkletter  in
favor of the Teague test, or even crafting an
altogether different retroactivity test,  the
fact  remains  that  we  are  bound  by   the
precedent  established by the Alaska  Supreme
Court.   In other words, we must continue  to
apply  the Alaska retroactivity rule  as  set
forth  and applied in such cases as Semancik,
Wickham, Glass, and Judd.
          The  State,  however,  argues  that
this is not so.  The State contends that  the
Alaska  Legislature has decreed that we  must
apply  the Teague test (as a matter of  state
law)   whenever   a  defendant   collaterally
attacks a conviction or sentence.
          The State points out that, in 1995,
the   legislature   amended   Alaskas   post-
conviction relief statute, AS 12.72.010,  and
the corresponding court rule, Alaska Criminal
Rule 35.1(a), by adding language that appears
to   codify  a  retroactivity  test  that  is
similar,  if  not  identical,  to   the   one
announced in Teague.36  As amended, both  the
statute   and   the  rule   now   contain   a
subsection (7); this subsection declares that
post-conviction  relief  is  available  if  a
defendant shows that:

     (A)  there has been a significant change
in  law,  whether substantive or  procedural,
applied in the process leading to the persons
conviction or sentence;

     (B)  the  change  in  the  law  was  not
reasonably  foreseeable  by  a  judge  or   a
competent attorney;

     (C)  it  is appropriate to retroactively
apply  the  change in law because the  change
requires  observance  of  procedures  without
which   the   likelihood   of   an   accurate
conviction is seriously diminished; and

     (D)  the failure to retroactively  apply
the   change  in  law  would  result   in   a
     fundamental miscarriage of justice, which is
established  by demonstrating that,  had  the
changed law been in effect at the time of the
applicants trial, a reasonable trier of  fact
would have a reasonable doubt as to the guilt
of the applicant[.]

The State argues that the 1995 amendments were intended to codify
the  Teague rule, and that we are therefore obliged  to
follow this rule when we decide whether a defendant can
pursue  a Blakely claim after the defendants conviction
is final.
We   believe   that   the  States  argument   and   the
legislatures action raise serious questions  under  the
doctrine of separation of powers.  One might argue that
the  legislature has improperly encroached  on  matters
entrusted  to  the  judicial branch  of  government  by
attempting  to  mandate  a rule of  retroactivity  (or,
rather,   a   rule   of  non-retroactivity)   for   new
interpretations of constitutional law.
          We note that in Griffith v. Kentucky, 479 U.S. 314, 107
S.Ct. 708, 93 L.Ed.2d 649 (1987), the United States Supreme Court
declared that all courts, both federal and state, must apply  new
rules  of  constitutional law to all defendants whose convictions
were  not  yet  final  when the new rule was  announced.37   With
regard to the federal courts, the Supreme Courts directive  might
conceivably  be  interpreted as an exercise  of  its  supervisory
power  over  the  federal  judiciary.   But  the  Supreme  Courts
directive  to  the states could not be based on  its  supervisory
power.   Instead,  it  appears that  the  underlying  premise  of
Griffith  is  that  the Supreme Court has the authority,  as  the
ultimate interpreter of the federal Constitution, to order  state
courts  to extend this degree of retroactive application  to  new
rules of federal constitutional law.
          If,  as  suggested  by  Griffith, an  appellate  courts
authority  to  decide the retroactivity of a  new  constitutional
rule  stems  from the judicial power granted by the constitution,
then  the legislature would have no authority to enact a  statute
mandating a different rule of retroactivity.
          But  we  need not resolve this constitutional issue  in
the  present  litigation.  The defendants in the present  appeals
are  not  pursuing  their Blakely claims in petitions  for  post-
conviction  relief under AS 12.72.010 and Criminal Rule  35.1(a).
Rather,  they filed motions for correction of an illegal sentence
under  Alaska Criminal Rule 35(a).  The legislature did  not  add
any  retroactivity limitation to Criminal Rule 35(a).  Thus,  the
defendants  cases are not affected by the 1995 amendments  to  AS
12.72.010 and Criminal Rule 35.1(a).
          For  these reasons, we conclude that we must apply  the
retroactivity test established by the Alaska Supreme Court.

                            Part II:
              Under the Alaska retroactivity test,
            should Blakely be applied retroactively?

The  two  components of Blakely:  the requirement  that
particular issues of fact be resolved by jurors  rather
than  judges, and the requirement that these  facts  be
proved beyond a reasonable doubt

          We  must  now  apply the Alaska retroactivity
test to resolve the issue of whether Blakely should  be
applied  retroactively   that  is,  whether  defendants
whose convictions were final before Blakely was decided
should  nevertheless be entitled to  obtain  relief  if
they were sentenced in violation of Blakely.  To answer
this  question, it is important to distinguish the  two
separate   components  of  the  right  to  jury   trial
announced  in Blakely and its predecessor, Apprendi  v.
New  Jersey.38  These two components are (1) the  right
to  demand that a jury (rather than a judge) decide the
disputed  issue  of fact, and (2) the right  to  demand
that  the government prove the disputed issue  of  fact
beyond  a  reasonable doubt (as opposed to some  lesser
standard of proof).
          On  one  level,  these two  requirements  are
inseparable.  As Justice Scalia explained, writing  for
the  Supreme Court in Sullivan v. Louisiana, these  two
procedural  protections  are interrelated,  concomitant
aspects of the right to jury trial:
     
          It  is self-evident, we think, that  the
     Fifth Amendment requirement of proof beyond a
     reasonable  doubt  and  the  Sixth  Amendment
     requirement    of   a   jury   verdict    are
     interrelated.  It would not satisfy the Sixth
     Amendment to have a jury determine  that  the
     defendant is probably guilty, and then  leave
     it  up  to the judge to determine ... whether
     [the defendant] is guilty beyond a reasonable
     doubt.   ...  [T]he jury verdict required  by
     the  Sixth  Amendment is a  jury  verdict  of
     guilty beyond a reasonable doubt.  [When  the
     jury instructions allow the jury to convict a
     defendant   without  finding  the   defendant
     guilty   beyond  a  reasonable   doubt,   the
     defendants]  Sixth Amendment  right  to  jury
     trial [is] denied.

Sullivan, 508 U.S. 275, 278; 113 S.Ct.  2078,
2081; 124 L.Ed.2d 182 (1993) (emphasis in the
original) (footnote omitted).
          In  other  words, a jury  trial  in
which the government is not required to prove
its  factual  assertions beyond a  reasonable
doubt  is not a valid jury trial for purposes
of the Sixth and Fourteenth Amendments.
          But  as  we  explain  in  the  next
section,  courts have distinguished  the  two
procedural requirements set forth in Blakely.
          And, between the two, the requirement of
proof  beyond  a reasonable doubt  plays  the
more central role in Anglo-American law.

The centrality of proof beyond a reasonable doubt

     As  evidenced  by the United  States  Supreme
Courts decision in Schriro v. Summerlin, 542  U.S.
348,  355-58; 124 S.Ct. 2519, 2525-26; 159 L.Ed.2d
442 (2004), reasonable people might debate whether
the first of the Blakely protections  the right to
have  a  jury,  rather than a  judge,  decide  the
pertinent issues of fact  should be included among
the procedures that are implicit in the concept of
ordered liberty.  In Summerlin, the Supreme  Court
declined to give retroactive relief to a defendant
who  was  sentenced  to  death  in  violation   of
Apprendi  (because a judge, rather  than  a  jury,
decided the issues of fact that determined whether
the defendant was subject to the death penalty).
     The  Summerlin Court did not reach the  issue
of  proof beyond a reasonable doubt  because, even
before  Apprendi and Blakely, Arizona law required
that  death  penalty factors be  proved  beyond  a
reasonable doubt.  See Ring v. Arizona,  536  U.S.
584,  597;  122 S.Ct. 2428, 2437; 153 L.Ed.2d  556
(2002).  Thus, the Supreme Court in Summerlin  had
no  occasion  to consider whether proof  beyond  a
reasonable doubt was implicit in [our] concept  of
ordered liberty.
          But  both the United States Supreme Court and
the  Alaska  Supreme  Court have repeatedly  emphasized
that proof beyond a reasonable doubt is central to  our
criminal justice system.
          In In re Winship, 397 U.S. 358, 364; 90 S.Ct.
1068,  1073;  25 L.Ed.2d 368 (1970), the Supreme  Court
held that proof beyond a reasonable doubt was among the
fundamental rights guaranteed by the due process clause
of  the  Fourteenth  Amendment.   Neither  the  federal
government  nor any state government has the  authority
to  subject a citizen to criminal penalties based on  a
lesser standard of proof.
          Quoting  Justice  Frankfurter  in  Leland  v.
Oregon, the Winship Court declared that the requirement
of  proof  beyond a reasonable doubt was basic  in  our
law, and that it was both a requirement and a safeguard
of  due  process of law.  Winship, 397 U.S. at 362,  90
S.Ct. at 1071.39  The Court added that this standard of
proof is among the historically grounded rights of  our
system,  developed to safeguard men  from  dubious  and
unjust  convictions,  and  that  it  is  [one  of]  the
fundamental  principles that are deemed  essential  for
the  protection of life and liberty.  Id., 397 U.S.  at
362, 90 S.Ct. at 1072.
          The Winship Court then declared:
     
     The  reasonable-doubt standard  plays  a
vital role in the American scheme of criminal
procedure.   It  is  a prime  instrument  for
reducing  the risk of convictions resting  on
factual   error.    The   standard   provides
concrete  substance  for the  presumption  of
innocence    that   bedrock   axiomatic   and
elementary  principle whose enforcement  lies
at  the  foundation of the administration  of
our criminal law.  ...  [A] person accused of
a  crime  would be [deprived] of  fundamental
fairness  ... if he could be adjudged  guilty
and   imprisoned  for  years  on  [a   lesser
standard of proof].
     .  .  .

     Moreover,  use  of  the reasonable-doubt
standard  is  indispensable  to  command  the
respect  and  confidence of the community  in
applications  of  the criminal  law.   It  is
critical that the moral force of the criminal
law  not  be diluted by a standard  of  proof
that  leaves people in doubt whether innocent
men   are   being  condemned.   It  is   also
important  in  our  free society  that  every
individual  going about his ordinary  affairs
have  confidence  that his government  cannot
adjudge  him  guilty  of a  criminal  offense
without convincing a proper factfinder of his
guilt with utmost certainty.

Winship, 397 U.S. at 363-64, 90 S.Ct. at 1072-
73 (internal quotation marks omitted).
          Two years later, in Ivan V. v. City
of  New  York,  407 U.S. 203, 205;  92  S.Ct.
1951,  1952;  32  L.Ed.2d  659  (1972),   the
Supreme  Court  held  that  the  due  process
requirement  of  proof  beyond  a  reasonable
doubt had to be applied wholly retroactively.
That  is,  the  Supreme Court held  that  the
states  were  obliged  to  grant  retroactive
relief   to  all  defendants  who  had   been
convicted  (or adjudicated delinquent)  based
on  a  lesser standard of proof   even  those
defendants   whose  convictions  were   final
before Winship was announced.
          In  its short, unanimous opinion in
Ivan  V., the Supreme Court declared that  it
was  obvious  that the major purpose  of  the
constitutional  standard of  proof  beyond  a
reasonable doubt announced in Winship was  to
overcome an aspect of the criminal trial that
[might]  substantially impair[] [its]  truth-
finding  function  and that, for this reason,
Winship  must  be given complete  retroactive
effect  despite good-faith reliance by  state
governments on the prior law, and  regardless
of  the  impact this retroactive  application
might  have on the administration of justice.
Id., 407 U.S. at 204-05, 92 S.Ct. at 1952.
          The  Alaska Supreme Court, too, has
emphasized  the  fundamental  importance   of
requiring proof beyond a reasonable doubt  in
criminal  cases.   The  supreme  court   most
recently  addressed this  issue  in  Shaw  v.
Alaska Department of Administration, 861 P.2d
566 (Alaska 1993).
          In Shaw, the supreme court declared
that  a  primary goal, perhaps the  paramount
goal,  of the criminal justice system  is  to
protect  the  innocent  accused  against   an
erroneous conviction.40

     Our society has made a fundamental value
determination  ... that it is  far  worse  to
convict an innocent man than to let a  guilty
man  go  free.  In re Winship, 397 U.S.  358,
372,  90  S.Ct.  1068, 1077, 25  L.Ed.2d  368
(1970)  (Harlan, J., concurring);   see  also
State  v.  Alto,  589 P.2d 402,  406  (Alaska
1979)  ([P]lacing the burden of proof on  the
state  beyond a reasonable doubt in  criminal
cases  reflects our belief that it  is  worse
tha[t] an innocent man be jailed than that  a
guilty man go free.).

Shaw, 861 P.2d at 570.
As  our  supreme court explained in Shaw, the  goal  of
protecting the innocent from unjust criminal  penalties
is  so important that it overrides societys interest in
accurately determining the facts of the case.  For this
reason,  unless  those facts can  be  proved  beyond  a
reasonable  doubt,  our  law requires  that  the  facts
remain unproved:

     Few    would   dispute   that   reliable
factfinding is ... a significant goal of both
the criminal and the civil [justice] systems.
...   In  the criminal system,  however,  the
goal of reliable factfinding and the goal  of
protecting the innocent accused may conflict.
[And when] these two goals conflict, ...  the
goal  of  reliable factfinding ... must  give
way  to the paramount goal of protecting  the
innocent accused.  As [Professors] LaFave and
Israel noted:

     Reliable  factfinding,  as  a  goal   in
     itself, would seek to ensure equally the
     accuracy  of  both guilty  verdicts  and
     nonguilty verdicts.  Protection  of  the
     innocent,   however,   places    greater
     priority  on the accuracy of the  guilty
     verdict.    It  reflects  a  desire   to
     minimize  the  chance of  convicting  an
     innocent  person even at  the  price  of
     increasing  the  chance  that  a  guilty
     person may escape conviction.

1   Wayne  R.  LaFave  &  Jerold  H.  Israel,
Criminal Procedure  1.6(c), at 45 (1984).

Shaw, 861 P.2d at 570-71.
          In   other   words,  our   criminal
justice  system resolves the conflict between
protecting  the  innocent  ...  and  reliable
factfinding by choosing to err on the side of
ensuring  the  accuracy of  guilty  verdicts.
Shaw,  861  P.2d at 571.  And to  ensure  the
greatest  achievable  level  of  accuracy,  a
defendant   in  a  criminal  case   must   be
acquitted  unless the government  proves  the
defendants guilt beyond a reasonable doubt.
          This  principle is so important  to
our  criminal justice system, so  central  to
our   notions   of  the  proper  relationship
between  a society and its citizens, that  we
insist  on  proof  beyond a reasonable  doubt
that  is, we insist on achieving the goal  of
protecting the innocent  even though we  know
that  there  will  be times when  this  means
sacrificing the goal of determining the truth
in a particular case.  Id.

Why  the Alaska retroactivity test requires retroactive
application of Blakelys requirement of proof  beyond  a
reasonable doubt

          As  we explained earlier in this opinion, the
Alaska Supreme Court has adopted a three-part test  for
determining whether a new constitutional rule should be
applied  retroactively.  The three criteria  are:   (1)
the  purpose  to  be served by the new  rule;  (2)  the
extent  of reliance on the old rule; and (3) the effect
on  the  administration  of justice  of  a  retroactive
application of the new rule.
          But  in  Rutherford v. State,  486  P.2d  946
(Alaska  1971),  our supreme court  declared  that  the
first  criterion  the purpose to be served by  the  new
rule  will supersede other considerations whenever  the
purpose  of  the new rule is primarily related  to  the
integrity of the verdict.  Id. at 952.  If that is  the
case, courts will extend complete retroactivity to  the
new rule.
          Quoting  Justice Whites plurality opinion  in
Williams          v.          United          States,41
  the supreme court declared:
     
          Where   the   major   purpose   of   new
     constitutional  doctrine is  to  overcome  an
     aspect   of   the   criminal   trial    which
     substantially   impairs   its   truth-finding
     function  and  so  raises  serious  questions
     about the accuracy of guilty verdicts in past
     trials,  the  new  rule  [is  to  be]   given
     complete    retroactive   effect.     Neither
     good-faith  reliance  by  state  or   federal
     authorities  on prior constitutional  law  or
     accepted practice, nor severe impact  on  the
     administration of justice ...  suffice[s]  to
     [limit   the   new   rule   to]   prospective
     application in these circumstances.
     
Rutherford, 486 P.2d at 952-53.
          The  proof  beyond  a  reasonable  doubt  component  of
Apprendi and Blakely is the type of rule that the Alaska  Supreme
Court  was  talking  about in Rutherford:  a rule  whose  primary
purpose  is  related to the integrity of the verdict,  and  whose
function  is  to cure a flaw that raises serious questions  about
the accuracy of guilty verdicts.  Rutherford, 486 P.2d at 952.
          It  must  be  remembered that,  in  this  context,  the
accuracy  of  a  verdict refers to something different  from  the
factual  accuracy of the verdict.  As our supreme court explained
in  Shaw, our laws insistence on the principle of proof beyond  a
reasonable  doubt  actually  entails  sacrificing  the  goal   of
accurate  fact-finding in favor of a more  important  goal:   the
goal  of  precluding  the  government  from  inflicting  criminal
penalties  on a defendant when there is a reasonable  possibility
that  the defendant did not do the things that would merit  those
penalties.   Thus, an accurate verdict in a criminal  case  is  a
verdict that preserves this latter goal.
          Blakely holds that a criminal defendant is entitled  to
demand  proof  beyond a reasonable doubt on every issue  of  fact
(other   than  a  prior  conviction)  that  will  determine   the
defendants maximum punishment under a determinate sentencing law.
          As  this Court has repeatedly recognized, the pre-March
2005  version  of  Alaskas  presumptive sentencing  law  violated
Blakely  because, under that former law, disputed issues of  fact
that  would  determine a defendants maximum sentence were  proved
under  the  clear  and convincing evidence standard  rather  than
beyond a reasonable doubt.42
          This   constitutional  flaw  raises  serious  questions
concerning the integrity or accuracy of those decisions.  Because
judges  used a clear and convincing evidence standard to  resolve
disputed issues of fact under our pre-2005 presumptive sentencing
law,  there  is  a  possibility that these issues  of  fact  were
resolved  incorrectly  incorrectly in the sense  that  defendants
received   increased  terms  of  imprisonment  even  though   the
government  did  not  prove beyond a reasonable  doubt  that  the
          defendant had done the things that would make the defendant
eligible for these increased penalties.
          It  is true that a Blakely violation does not undermine
the legal underpinning of the defendants conviction in the narrow
sense  of  that  word.   That is, a Blakely  violation  does  not
undermine  the  integrity or accuracy of  the  finding  that  the
defendant  has  committed a crime.  Rather, a  Blakely  violation
undermines  the  factual  foundation  of  the  sentencing  courts
authority  to  impose an increased punishment  on  the  defendant
(i.e., a punishment exceeding the applicable presumptive term  of
imprisonment).
          But  in  Alaska,  the  retroactive application  of  new
constitutional  rules  is not limited to rules  that  affect  the
finding  of guilt at the defendants trial.  In Thessen v.  State,
508  P.2d  1192, 1195 n. 15 (Alaska 1973),43  the Alaska  Supreme
Court held that the prevention of unconstitutional punishment  is
also  a  compelling reason to apply a new rule of  constitutional
law retroactively.
          The  Blakely  requirement of proof beyond a  reasonable
doubt  is a rule designed to prevent unconstitutional punishment.
Blakely  precludes  enhanced punishment when the  government  has
failed  to  prove, beyond a reasonable doubt, that the  defendant
has done the things that authorize the sentencing court to impose
this enhanced punishment.
          Thus,  under Rutherford and Thessen, this Court  should
grant  full retroactivity to the proof beyond a reasonable  doubt
component of the Blakely decision even if the other two parts  of
the  Alaska retroactivity test (the extent of reliance on the old
rule,  and the resulting effect on the administration of justice)
would militate against retroactive application.
          But   we   also  conclude  that  Blakely  merits   full
retroactive application under the Alaska test even if  all  three
of the tests criteria are considered.
          We  concede  that the second prong of the  Alaska  test
favors the non-retroactivity of Blakely.  The State of Alaska (as
the  plaintiff in felony criminal cases) and the Alaska judiciary
(in  its  role of sentencing convicted felony defendants)  relied
for  more  than two decades on the presumed constitutionality  of
the sentencing procedures specified in the pre-March 2005 version
of  AS  12.55.155  in particular, the procedures for proving  the
aggravating factors that increased a defendants maximum  sentence
under  Alaskas  presumptive sentencing law.  This fact  militates
against giving full retroactivity to Blakely.
          But  the  third  prong of the Alaska  test   i.e.,  the
extent of the disruption to the criminal justice system that full
retroactivity  would  entail   again  favors  retroactivity.   We
acknowledge   that  large  numbers  of  felony  defendants   were
sentenced  under Alaskas presumptive sentencing  law  during  the
twenty-five  years  between its enactment  and  its  post-Blakely
amendment  in  March  2005.   However,  the  majority  of   those
defendants  are  no  longer in custody and have  completed  their
probation and parole.  Thus, giving full retroactivity to Blakely
would not affect the administration of justice in those cases.
          (As  we recently explained in Cleveland v. State,  when
the   Alaska  legislature  enacted  presumptive  sentencing,   it
          nevertheless retained indeterminate sentencing for Alaskas most
serious  felonies.44  See AS 12.55.125(a) and (b).   The  Blakely
decision  does  not  affect sentencing for these  felonies.   See
Carlson v. State, 128 P.3d 197, 204-05 (Alaska App. 2006).  Thus,
extending full retroactive application to Blakely will not affect
the validity of those sentences.)
          We estimate that there are a few hundred criminal cases
that   will  potentially  be  affected  if  Blakely  is   applied
retroactively.  We base this estimate on the fact that, according
to the Appellate Court Clerks Office, there are slightly over 250
Blakely  appeals  currently stayed and awaiting our  decision  of
this retroactivity issue.
          But  based  on  the Blakely cases that this  Court  has
already  decided, it appears that only a few of these  defendants
will   be   entitled  to  relief  even  if  Blakely  is   applied
retroactively.   To  date,  this Court  has  decided  thirty-five
appeals  that  required us to resolve Blakely  issues.   We  have
denied  relief in thirty-three of these cases.45  We have granted
relief in two of these cases.46
          Some   of   these   defendants   were   sentenced   for
unclassified  felonies governed by indeterminate  sentencing,  so
Blakely  did  not  apply.  Of the cases governed  by  presumptive
sentencing, many of the aggravating factors contested  on  appeal
were  based  on the defendants prior convictions,  or  else  they
flowed  directly  from the jurys verdicts.   And  in  most  other
instances,  even  when  Blakely error  occurred,  the  error  was
harmless  beyond  a  reasonable  doubt  because  there   was   no
reasonable  dispute concerning the facts that gave  rise  to  the
aggravating factor.
          Moreover,  we recently held in Cleveland v. State  that
any  single aggravating factor is sufficient to satisfy  Blakely,
and  that  any  remaining aggravating factors could  lawfully  be
proved  under  the procedures specified in former AS 12.55.155(f)
that  is,  proved  by  clear  and  convincing  evidence  to   the
sentencing judge.47
          Based on our past decisions in Blakely cases (that  is,
the thirty-five Blakely claims that we have resolved), it appears
that  only a small percentage of the pending Blakely appeals will
present  a  claim  that  actually  merits  relief.   Given   this
relatively small impact on the criminal justice system, and given
the  crucial purpose served by the Blakely rule, we conclude that
the Blakely requirement of proof beyond a reasonable doubt should
be applied retroactively.
          Moreover, we would reach this same conclusion  even  if
the  number  of cases affected by our decision were significantly
higher.
          Under the pre-March 2005 version of Alaskas presumptive
sentencing law, a first felony offender convicted of first-degree
sexual  assault or first-degree sexual abuse of a minor  faced  a
maximum  term  of  8  years  imprisonment  if  the  State  proved
no  aggravators, but the sentencing judge could impose up  to  40
years imprisonment if the State proved one or more aggravators.48
Similarly, first felony offenders convicted of a class  A  felony
faced  a maximum term of either 5 or 7 years imprisonment if  the
State  proved  no  aggravators, but the  sentencing  judge  could
          impose up to 20 years imprisonment if the State proved one or
more aggravators.49
          In   other  words,  under  Alaskas  former  presumptive
sentencing  law,  defendants could be sentenced to  prison  terms
that  were  substantially longer than the applicable  presumptive
term   in  some  instances, three or four or  five  times  longer
based  on  a  single aggravating factor that was proved  only  by
clear  and  convincing  evidence. But  the  Sixth  Amendment,  as
interpreted  in  Apprendi  and  Blakely,  guarantees  a  criminal
defendant the right to demand proof beyond a reasonable doubt  on
any  issue  of  fact which, if decided in the governments  favor,
will subject the defendant to these types of increased sentences.
          Because of this, even if several dozen defendants might
ultimately  be  entitled  to  relief  if  Blakely  were   applied
retroactively,  we  would still confront the following  question:
Is  it  fundamentally fair to allow defendants  to  serve  prison
terms  that  could be three times, four times, or in  some  cases
five  times  longer than their presumptive term, when this  added
imprisonment   was  imposed  in  violation  of   the   defendants
constitutional right to demand proof beyond a reasonable doubt of
the  facts  that authorized the sentencing judge to impose  these
longer sentences?
          We  conclude  that this would, indeed, be fundamentally
unfair.  We therefore hold that, under the Alaska Supreme  Courts
retroactivity  test, the Blakely requirement of  proof  beyond  a
reasonable doubt must be accorded full retroactivity.

Why  we  conclude that, if retroactive  application  of
Blakely requires a new determination of the aggravating
factors in a defendants case, that determination should
be made by a jury rather than a judge

          Thus  far, our discussion has focused on  the
component  of  Blakely  that requires  proof  beyond  a
reasonable  doubt.  Our conclusion that this  component
must be applied retroactively raises one more question:
If,  because  of Blakely error, one or more aggravating
factors  in a defendants case must be relitigated,  can
this  relitigation be performed by the sentencing judge
(using  a beyond a reasonable doubt standard of proof)?
Or  should the disputed aggravating factors be  decided
by a jury?
          The United States Supreme Courts decision  in
Schriro v. Summerlin50 suggests that a re-assessment by
the  sentencing judge might suffice.  In Summerlin, the
Supreme  Court rejected the argument that  fact-finding
by  a judge (on the issue of death penalty aggravators)
was significantly less accurate than fact-finding by  a
jury.51
          It  is true that the Summerlin Court did  not
confront the precise issue now facing us:  the question
of  whether a jury trial should be ordered if,  because
of  an error in the standard of proof, the fact-finding
in  a  particular case must be vacated and re-performed
anyway.   Nevertheless,  Summerlin  suggests  that  the
          identity of the fact-finder has significantly less
effect  on the accuracy of fact-finding than  does  the
standard of proof.
          But  accuracy of fact-finding is not the only
goal  of the constitutional guarantee of trial by jury.
Indeed,  accuracy  of  fact-finding  is  not  even  the
primary goal of this guarantee.  Both the United States
Supreme  Court  and  the  Alaska  Supreme  Court   have
acknowledged  that the guarantee of trial  by  jury  is
meant  to  serve  and  foster other important  societal
concerns.
          We ourselves explained some of these concerns
in  Malloy v. State, 1 P.3d 1266 (Alaska App.  2000),52
when  we  discussed  the historical importance  of  the
right to trial by jury in American law:
     
          The  development of the  common  law  in
     England  was marked by a tension between  the
     jury,  as an expression of the popular  will,
     and  the judiciary, as the representative  of
     established authority.  Parliament engaged in
     the  practice  of barring the right  to  jury
     trial when it defined new, statutory offenses
     such  as  the  Stamp Act and  other  statutes
     regulating  trade within the British  Empire.
     This  practice  was condemned by  Blackstone,
     and it occasioned the protest in the American
     Declaration   of  Independence  against   the
     deprivation of the right to jury trial.
     
 Malloy, 1 P.3d at 1283-84.
     The  United  States Supreme Court addressed  this  same
issue  in  Jones v. United States, 526 U.S. 227,  119  S.Ct.
1215, 143 L.Ed.2d 311 (1999), when the Court noted that  the
Americans  who  drafted our federal constitution  understood
that the right to jury trial could be lost not only by gross
denial, but by erosion.  Id., 526 U.S. at 247-48, 119  S.Ct.
at 1226.
     
     One  contributor to the ratification  debates
     ...  , commenting on the jury trial guarantee
     in Art. III,  2, echoed Blackstone in warning
     of  the  need to guard with the most  jealous
     circumspection  against the  introduction  of
     new,  and arbitrary methods of trial,  which,
     under  a variety of plausible pretenses,  may
     in  time,  imperceptibly undermine this  best
     preservative of LIBERTY.
Jones,  526 U.S. at 248, 119 S.Ct. at 1226, quoting The  Complete
Bill  of Rights:  The Drafts, Debates, Sources, and Origins (Neil
H. Cogan, editor, 1997), p. 477.
          Thus,  the  guarantee of trial by  jury  is  not  based
solely or even primarily on the idea that twelve heads are better
than  one  when  it comes to discerning the truth.   Rather,  the
fundamental  concept underlying the constitutional  guarantee  of
          jury trial is that juries are instruments of public justice, in
the  sense that they are representative of the community.   Smith
v.  Texas,  311  U.S. 128, 130; 61 S.Ct. 164, 165;  85  L.Ed.  84
(1940).
          The  Supreme Court elaborated on this concept in Duncan
v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968):
          
               Those  who wrote our constitutions  knew
          from  history  and  experience  that  it  was
          necessary   to  protect  [citizens]   against
          unfounded   criminal   charges   brought   to
          eliminate  enemies[, as well  as  to  protect
          them]  against judges too responsive  to  the
          voice  of  higher authority.  The framers  of
          the   constitutions  strove  to   create   an
          independent  judiciary[,] but  insisted  upon
          further    protection    against    arbitrary
          [governmental] action.  Providing an  accused
          with  the right to be tried by a jury of  his
          peers   gave  him  an  inestimable  safeguard
          against the corrupt or overzealous prosecutor
          and   against  the  compliant,   biased,   or
          eccentric  judge.  If the defendant preferred
          the  common-sense judgment of a jury  to  the
          more  tutored  but  perhaps less  sympathetic
          reaction  of the single judge[,]  he  was  to
          have it.
          
Duncan, 391 U.S. at 156, 88 S.Ct. at 1451.
          Or,  as Justice Black explained in his dissent in Green
v.  United  States,  356 U.S. 165, 78 S.Ct. 632,  2  L.Ed.2d  672
(1958):
          
     Trial   by   an   impartial   jury    of
independent  laymen raises  another  imposing
barrier to oppression by government officers.
As one of the more perceptive students of our
experiment  in  freedom keenly observed,  The
institution of the jury ... places  the  real
direction  of  society in the  hands  of  the
governed,  or  of a portion of the  governed,
and  not in that of the government.  [Quoting
De  Tocqueville, Democracy in America  (Reeve
translation, 1948 edition), Vol. 1, p.  282.]
The  jury  injects a democratic element  into
the  law.   This  element  is  vital  to  the
effective administration of criminal justice,
not  only in safeguarding the rights  of  the
accused,    but   in   encouraging    popular
acceptance  of  the  laws and  the  necessary
general acquiescence in their application.

Green, 356 U.S. at 215-16, 78 S.Ct. at 659-660 (Black, J.,
dissenting).
The Alaska Supreme Court has likewise declared that the
jury was intended to be a body truly representative  of
the  community, in keeping with our basic,  traditional
concept  of  a  democratic society  and  representative
government.53
One   of   the  Alaska  Supreme  Courts  most  detailed
discussions of this important role of the jury is found
in Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970):

     [T]he  right  to  jury  trial  holds   a
central position in the framework of American
justice.  Trial by jury is one of the  oldest
discernible  and distinguishing  institutions
of     our    Anglo-American    system     of
jurisprudence.  Its heritage can be traced in
an  unbroken  line  at least  from  the  14th
century  forward.  The Magna  Carta  declared
that   no   freeman  shall   be   taken,   or
imprisoned, or exiled, or in any other manner
destroyed,  except  by the  judgment  of  his
peers, or by the law of the land.  [As quoted
in  Blackstones Commentaries on the  Laws  of
England  (Cooley, 4th ed. 1899), Vol.  4,  p.
343]

Baker,  471 P.2d at 396.  The supreme court then quoted
Blackstones  description of the central  importance  of
trial  by  jury  as  a  check  on  the  power  of   the
government:

     Our  law  has  ...  wisely  placed  this
strong  ...  barrier [of] trial by  jury  ...
between  the liberties of the people and  the
prerogative  of the crown.  It was  necessary
...  to vest the executive power of the  laws
in  the prince:  and yet this power might  be
dangerous and destructive ... if exerted  [by
judges appointed by the crown] without  check
or  control, ... who might then, as in France
or  Turkey, imprison, dispatch, or exile  any
man that was obnoxious to the government,  by
an  instant  declaration that such  is  their
will  and pleasure.  But the founders of  the
English law have, with excellent fore[sight],
contrived  that  ...  the  truth   of   every
accusation, whether preferred in the shape of
indictment   [or]  information   ...   should
afterwards  be  confirmed  by  the  unanimous
suffrage of twelve of [the defendants] equals
and   neighbors,  indifferently  chosen   and
superior to all suspicion.

Baker, 471 P.2d at 396-97 (quoting Blackstones Commentaries on
the Laws of England (Cooley, 4th ed. 1899), Vol. 4, pp.
349-350).
In  short,  the Baker Court declared, the guarantee  of
trial  by  jury is a valuable safeguard to liberty   if
not the very palladium of free government.  471 P.2d at
397,   quoting  Alexander  Hamilton,  The   Federalist,
No. 83.54
The  Alaska  Supreme Court returned to  this  theme  in
Alvarado  v.  State, 486 P.2d 891  (Alaska  1971).   In
Alvarado, our supreme court emphasized that even though
the  jury is charged with the task of finding the truth
of the facts asserted [in criminal litigation], this is
but  one  aspect  of the jurys role in  our  system  of
government:

The  jury is an essential institution in  our
democracy,   and  [it]  serves   multifaceted
purposes.   ...  [B]eyond its  utility  as  a
finder  of  fact,  the  jury  fulfills  other
equally  vital  political  and  psychological
purposes.   ...   [The  jury  serves]  as   a
safeguard   against   the   possibility    of
governmental tyranny and oppression[,  as]  a
protection or barrier against the exercise of
arbitrary power[.]

Alvarado, 486 P.2d at 903.55  The supreme court then explained:

     As  an institution, the jury offers  our
citizens  the  opportunity to participate  in
the workings of our government, and serves to
legitimize our system of justice in the  eyes
of both the public and the accused.

     The  jury,  like the right to  vote,  is
fundamentally  preservative of  ideals  which
are essential to our democratic system.  When
[this  guarantee] is neglected, [t]he  injury
is  not  limited to the defendant   there  is
injury to the jury system, to the law  as  an
institution, to the community at  large,  and
to  the  democratic ideal  reflected  in  the
processes of our courts.

Alvarado, 486 P.2d at 903-04 (quoting Ballard v. United States,
329  U.S.  187, 195; 67 S.Ct. 261, 265;  91  L.Ed.  181
(1946)).
          Because  the importance of trial by jury far transcends
the  jurys role as a finder of fact, it could be argued that  the
United  States Supreme Court, when deciding Schriro v. Summerlin,
should not have focused solely on the comparative accuracy of the
findings made by juries versus the findings made by judges.   But
be  that as it may, this Court faces a problem different from the
one  confronting the Supreme Court in Summerlin.  We have already
concluded that defendants are entitled to retroactive application
of  the  Blakely  requirement of proof beyond a reasonable  doubt
and  the  issue  remaining is whether,  in  cases  where  Blakely
requires  a  re-assessment  of  aggravating  factors,  that   re-
          assessment should be performed by a jury.
          Both  federal  law  and  Alaska  law  acknowledge   the
importance  of  trial by jury as a guarantee  of  the  citizenrys
liberties  and  as  a  check  on  the  power  of  the  government
(including  the  power  of judges).  In  addition,  in  Baker  v.
Fairbanks,  our supreme court suggested that the framers  of  our
state  constitution  intended to adopt  a  right  of  jury  trial
broader than the right recognized at that time under federal law.
Id., 471 P.2d at 398-401.
          For  these reasons, we conclude that if, because  of  a
Blakely error, one or more aggravators in a particular case  must
be  relitigated, the defendant is entitled to have a jury  decide
the disputed aggravators.

                           Part III:
     Application of Our Holding to the Two Cases Before Us

          Appellant  Troy S. Smart received an enhanced  sentence
for   second-degree  assault  based  on  the  States   proof   of
aggravating factor AS 12.55.155(c)(13)  the allegation that Smart
knowingly  directed  his  criminal  conduct  at  an  active   law
enforcement   officer  during,  or  because  of,   the   officers
performance  of  official duties.  Smart actively  disputed  this
aggravator in the superior court, but the sentencing judge  ruled
against  him.   On appeal, this Court upheld the  judges  finding
because  we  concluded that the record was sufficient to  support
the  conclusion that this aggravator had been proved by clear and
convincing  evidence.  See Smart v. State, Alaska App. Memorandum
Opinion No. 4653 (January 15, 2003), slip opinion at 4-5; 2003 WL
122456 at *2.
          Because   we   hold  that  Blakely  must   be   applied
retroactively,   we  vacate  the  superior  courts   finding   of
aggravator  (c)(13),  and we direct the superior  court  to  hold
renewed  proceedings on this aggravator.  Smart  is  entitled  to
demand  that  the  government  prove  this  aggravator  beyond  a
reasonable doubt.
          Appellant  Jayme  Sobocienski was charged  with  first-
degree  sexual assault and second-degree sexual abuse of a  minor
after he invited a fourteen-year-old girl to his house, gave  her
liquor,  and  then  had  sex  with  her  after  she  passed  out.
Sobocienski ultimately agreed to plead guilty to a reduced charge
of third-degree sexual assault.
          Sobocienski  received  an enhanced  sentence  for  this
offense  based  on  the States proof of four aggravating  factors
under  AS  12.55.155(c):  (c)(10)  that Sobocienskis conduct  was
among  the  worst included within the definition of  third-degree
sexual assault (because his conduct actually constituted a higher
degree  of  sexual assault);56 (c)(12)  that Sobocienski  was  on
bail  release  from another felony charge when he  committed  the
sexual assault; (c)(20)  that Sobocienski was on felony probation
or  parole  when he committed the sexual assault; and  (c)(18)(B)
that  Sobocienski  had previously committed a sexual  assault  on
another victim.
          Sobocienski   conceded  the  first   three   of   these
aggravators.  That is, he conceded that his conduct was among the
          worst included within the definition of third-degree sexual
assault,  he  conceded that he was on bail release  from  another
felony  charge, and he conceded that he was probation  or  parole
from a previous felony conviction.
          However,  Sobocienski  contested the  States  remaining
aggravator  the allegation that he had sexually assaulted another
victim.   This allegation was not based on a criminal conviction;
rather,  it  was based on sexual assault charges in another  case
that  was  dismissed  as  part of the States  plea  bargain  with
Sobocienski.   The  sentencing judge ruled that  Sobocienski  had
waived  his  right  to challenge this fourth aggravator  because,
after   the  State  gave  notice  of  its  proposed  aggravators,
Sobocienskis  defense  attorney  failed  to  file  a   responsive
pleading as required by Alaska Criminal Rule 32.1(d)(1).
          Under  Blakely, Sobocienski had a right to demand  that
these  aggravators be proved beyond a reasonable doubt.  However,
the superior courts rulings on these aggravators did not hinge on
the difference between proof by clear and convincing evidence and
proof  beyond a reasonable doubt.  None of these four aggravators
was  litigated.   Instead,  Sobocienski  conceded  three  of  the
aggravators, and the superior court  ruled that Sobocienski  had,
by  failing to comply with applicable court rules, forfeited  his
procedural right to contest the fourth aggravator.
          Moreover, this Court has repeatedly held that a Blakely
error  is subject to harmless error analysis  and that a  Blakely
error  is  harmless  beyond a reasonable doubt  if  there  is  no
reasonable  possibility  that a jury  would  have  found  in  the
defendants  favor  on  the challenged aggravator.57   The  United
States  Supreme  Court recently confirmed that this  approach  to
Blakely  error is correct:  Washington v. Recuenco, __  U.S.  __,
126 S.Ct. 2546, 2553; 165 L.Ed.2d 466 (2006).
          In Sobocienskis case, there is nothing in the record to
suggest   and Sobocienski has never alleged  that there  was  any
doubt  concerning  aggravator (c)(12) (the fact that  Sobocienski
was  on  bail  release from another felony charge) or  aggravator
(c)(20)  (the  fact that Sobocienski was on probation  or  parole
from  a  previous felony conviction).  Accordingly, any  arguable
Blakely  error with respect to these two aggravators is  harmless
beyond a reasonable doubt.
          Under  Alaskas  pre-March 2005  presumptive  sentencing
law,  the  proof  of  any  single aggravator  was  sufficient  to
authorize  Sobocienskis sentence.58  Accordingly, we  affirm  the
superior   courts  decision  to  deny  Sobocienskis  motion   for
correction of sentence under Criminal Rule 35(a).
          (The superior court actually denied Sobocienskis motion
on  a  different  theory,  but we are authorized  to  affirm  the
superior courts decision on any ground revealed by the record.)59

     Conclusion
     
               For  the reasons explained here, we hold that
     the  right  of  jury  trial  declared  in  Blakely   v.
     Washington  must  be  applied  retroactively   to   all
     defendants,  even those whose convictions were  already
     final when Blakely was decided.
               With  regard to the two present appeals,  the
     decision of the superior court in Sobocienskis case  is
     AFFIRMED,  but  the decision of the superior  court  in
     Smarts  case is REVERSED.  The superior courts  finding
     of  aggravator (c)(13) in Smarts case is  VACATED,  and
     Smarts  case  is  remanded to the  superior  court  for
     renewed proceedings on that aggravator.
STEWART, Judge, concurring.

          I  agree with Judge Mannheimer that we  apply
Alaska  law  on  the question of the  retroactivity  of
Blakely  v.  Washington1 rather than  the  analysis  in
Teague v. Lane.2
           However, I disagree with Judge Mannheimer on
whether   Blakely   should   be   granted   retroactive
application under Teague.
          The   circuit  courts  of  appeal  that  have
considered  the  retroactive application  of  the  rule
announced   in   Blakely  or  the  corresponding   rule
governing federal sentences announced in United  States
v.  Booker3 have held that the rule does not  apply  to
cases on collateral review because the rule constitutes
a new rule of criminal procedure.4
          Under  the  non-retroactivity  doctrine  from
Teague,  a  decision creates a new rule when it  breaks
new ground or imposes a new obligation on the States or
the  Federal Government.5  When the opinion  creates  a
new   rule,  the  rule  applies  to  previously   final
judgments only in limited circumstances.6  For example,
new  substantive rules which decriminalize a  class  of
conduct  or prohibit capital punishment for a class  of
defendants generally apply retroactively.7   These  new
substantive rules apply retroactively because there  is
a risk that the defendant was convicted for an act that
is  not  criminal  or faces a punishment  that  is  not
allowed   by  law.8   However,  new  procedural   rules
generally  do not apply retroactively.9  New procedural
rules   merely  raise  the  possibility  that   someone
convicted  with  the  use of the invalidated  procedure
might  have been acquitted otherwise.  Because of  this
more  speculative  connection  to  innocence,  we  give
retroactive  effect to only a small  set  of  watershed
rules of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding.10
          In  Schriro v. Summerlin,11 the United States
Supreme Court held that Ring v. Arizona12 did not apply
retroactively  to a case on collateral  review  because
the  rule  announced in Ring was neither a  substantive
rule nor a watershed rule of criminal procedure.13   In
Ring,  the Court held that a jury, rather than a judge,
had  to  determine whether an aggravating  factor  that
justified  the  death penalty was  present.14   Because
Arizona law required aggravators to be proved beyond  a
reasonable doubt, the Court was not required to  decide
whether  the  requirement of proof beyond a  reasonable
doubt amounted to a substantive or watershed procedural
rule.15
          The   Schriro  Court  found  that  the   rule
announced   in   Ring   was  procedural   rather   than
substantive because it altered the range of permissible
methods for determining whether a defendants conduct is
punishable by death rather than the range of conduct or
          the class of persons that the law punishes.16  It
further  concluded that the rule was  not  a  watershed
rule  of criminal procedure.17  The Supreme Court found
that  [t]he  evidence  [was] simply  too  equivocal  to
support  [the] conclusion that judicial factfinding  so
seriously  diminishe[s]  accuracy  that  there  is   an
impermissibly large risk of punishing conduct  the  law
does not reach.18  Thus, because it did not fall within
either   of  the  two  Teague  exceptions,  the   Court
concluded  that  the new procedural rule  announced  in
Ring did not apply retroactively to cases already final
on direct review.19
          While   Judge  Mannheimer  has  a  thoughtful
argument  on  why  Blakely should be retroactive  under
Teague   because   of   the   beyond-a-reasonable-doubt
standard,  it  is  my judgment that the  United  States
Supreme  Court  will  conclude otherwise.   Of  course,
because  the  Court has granted certiorari  on  a  case
raising the issue of Blakelys retroactivity,20  we  may
soon  have a definitive ruling on the retroactivity  of
the Blakely rule under Teague.

COATS, Chief Judge, dissenting.

          Almost  all  courts that have considered  the
question  have  held that Blakely v.  Washington1  only
applies retroactively to cases that were not yet  final
at  the  time of the Blakely decision.  I would  follow
those decisions in order to avoid undue disruption with
minimal benefits.
          We  are  required  to apply  federal  law  in
determining the retroactivity of the Blakely  decision.
As we pointed out in Haag v. State,2 [t]he scope of the
retroactivity of constitutional decisions of the United
States  Supreme  Court  is governed  by  federal  law.3
Under  federal law, a new rule for conduct of  criminal
prosecutions  [applies]  retroactively  to  all  cases,
state  or federal, pending on direct review or not  yet
final.4  The parties to this case and most courts  that
have   addressed  the  retroactivity  of  the   Blakely
decision agree that, under federal law, Teague v. Lane5
governs  the  retroactive application of new  rules  to
cases  that  are final when the new rule is announced.6
The  overwhelming  majority of courts  have  held  that
Blakely  should not be applied retroactively  to  cases
that  were  final at the time of the Blakely decision.7
I would follow this overwhelming precedent.
          The  Office of Public Advocacy, in an  amicus
brief, argues that even if we conclude that Blakely  is
not  retroactive under federal law, we must  separately
determine  if  Blakely  must be  applied  retroactively
under state retroactivity law.  But because Blakely  is
a  federal  decision, we are required to apply  federal
law to determine whether Blakely is retroactive.  In my
view,  we  would  only be required  to  extend  Blakely
further under state law if we adopted the Blakely  rule
under the Alaska Constitution.
          In  general,  the appellate  courts  of  this
state  will  consider adopting a  new  rule  under  the
states  constitution only if the defendant can  advance
persuasive  reasons  for such a decision.8   Smart  and
Sobocienski   have  not  advanced  such  an   argument.
Although the Alaska Supreme Court has not addressed the
issue  since  the United States Supreme  Court  decided
Blakely,  in State v. Malloy9 the Alaska Supreme  Court
considered  the Apprendi v. New Jersey10  decision  and
did  not  see  any inconsistency between  the  Apprendi
holding   and   the  pre-2005  presumptive   sentencing
provisions.11   Although this is a weak  indication  of
what  the Alaska Supreme Court might do, the fact  that
the Alaska Supreme Court did not see a conflict between
Apprendi  and the former sentencing provisions suggests
that the supreme court would not favor adopting Blakely
under  the Alaska Constitution and applying Alaska  law
on retroactivity.
          Alaskas presumptive sentencing structure,  as
set  out in the former sentencing code, was adopted  by
          the Alaska legislature to reduce unjustified disparity
in  the  sentencing of criminal defendants and to  make
criminal sentencing a more fair and predictable process
by  limiting  the sentencing judges discretion.12   The
former  code  did not apply presumptive  sentencing  to
first-felony  offenders convicted  of  class  B  and  C
felony offenses.13  First offenders convicted of  class
A  felony  offenses  faced  presumptive  terms.14   The
legislature  required presumptive  sentences  for  most
repeat felony offenders.15  (Presumptive sentencing did
not apply to murder and kidnaping offenses.)16  Once  a
defendant  faced a presumptive sentence,  a  sentencing
judge could deviate from the presumptive sentence  only
by  finding  one  of  many  enumerated  aggravating  or
mitigating factors or by referring the case to a three-
judge panel.17
          In  Austin v. State,18 we attempted to  carry
out  the  legislatures  express  goal  of  having  more
uniformity  in  sentencing by extending  the  logic  of
presumptive  sentencing  to  a  first-felony   offender
convicted  of a class C felony.  Because Austin  was  a
first-felony  offender, to whom presumptive  sentencing
did   not  apply,  the  sentencing  judge  was  legally
authorized  to  sentence him up to the  5-year  maximum
sentence  without finding any aggravating factors.   In
Austin,  we  concluded  that,  since  a  second  felony
offender would face a presumptive sentence of  2  years
of   imprisonment,  it  would  be  illogical  for   the
sentencing judge to sentence a first-felony offender to
more  than  the  presumptive term for  a  second-felony
offender  unless the sentencing judge  found  that  the
case was exceptional.19
          In  State  v.  Jackson,20 we used  a  similar
analysis in setting out sentencing guidelines for first-
felony offenders convicted of class B felonies.  Again,
the former code did not apply presumptive sentencing to
first-felony offenders who were convicted  of  class  B
felonies.   But we set out sentencing guidelines  based
upon  the  logic  of  presumptive  sentencing  and  our
decision  in Austin.21  The purpose of the  Austin  and
Jackson decisions was to carry out the legislative goal
of making sentencing more logical, uniform, and fair by
limiting    and   directing   the   judges   sentencing
discretion.
          In Apprendi, the United States Supreme Court,
by  a  five to four vote, held that any [disputed] fact
(other  than  a  prior conviction) that  increases  the
penalty  for  a  crime beyond the prescribed  statutory
maximum must be submitted to a jury, and proved  beyond
a  reasonable doubt.22  In Blakely, the Court clarified
that  judges discretion in sentencing reaches only  the
maximum  sentence that can be proved  solely  on  facts
reflected  in  the  jury verdict  or  admitted  by  the
defendant.23   Under  our former  sentencing  code  the
sentencing  judge  was  not  authorized  to  exceed  an
          applicable presumptive term of imprisonment unless the
State   proved  aggravating  factors.24    The   former
sentencing  code required that aggravating  factors  be
proved  to the sentencing judge by clear and convincing
evidence.25   This  sentencing scheme violated  Blakely
because  Blakely required any fact (other than a  prior
conviction) that raised the maximum sentence  that  the
defendant  faced  to  be proved  to  a  jury  beyond  a
reasonable doubt.26
          The   majority  concludes  that  the  primary
reason to apply Blakely retro- actively is because  the
defendant  was deprived of his right to have the  State
prove an aggravator beyond a reasonable doubt.  But  it
is  unlikely  that there are many cases where  a  judge
would  have found an aggravator by clear and convincing
evidence but would not have found it under the standard
of  beyond a reasonable doubt.  And, under our decision
in  Cleveland v. State,27 the judge would only have  to
find one aggravator beyond a reasonable doubt to comply
with  Blakely.   After that, the judge could  find  all
other aggravators by clear and convincing evidence.28
          There are many aggravating factors, and  some
are  almost  always  present for  some  offenses.   For
instance,  in  almost  every  case  of  manslaughter  a
defendant will have employed a dangerous instrument  in
furtherance  of  the offense.29  This  aggravator  will
almost  always  be  present, and,  if  found  beyond  a
reasonable  doubt, will satisfy Blakely.  Similarly,  a
defendant  who commits a forceable sexual assault  will
almost  always  cause physical injury  to  his  victim,
another aggravating factor.30  So this aggravator  will
be  present  in  almost every case and  the  case  will
comply with Blakely.
          In   our  former  sentencing  decisions,   we
pointed  out  that when an aggravator is almost  always
present  in  an  offense, it should  only  be  used  to
increase  the  defendants sentence in unusual  cases.31
But  after Blakely, these aggravating factors that  are
almost  always  present for a particular  offense  will
satisfy Blakely and will allow the court to find  other
aggravating factors by clear and convincing evidence.
          When  we  apply  Blakely  retroactively,  the
result is that in some cases, such as manslaughter  and
forceable sexual assault, Blakely will be satisfied  in
almost every case.  In other cases the State will  have
to   prove   an  aggravator  long  after  the  offense.
Defendants  who conceded aggravating factors  at  their
original sentencing can claim that they would not  have
conceded  had they known they were entitled to  a  jury
trial.   In  those cases where the aggravating  factors
must  now be proved to a jury, the State will face some
difficult decisions about whether it is worth reopening
those  cases, assuming that the evidence and  witnesses
are still available.
           The  State  has made charging decisions  and
courts have imposed sentences based upon the sentencing
laws  that were in effect at the time the sentence  was
imposed.    These  decisions  might  have   been   very
different if the Blakely decision had been foreseeable.
Sentencing aggravators that the State might  have  been
able  to  prove  easily at the time of  the  defendants
original   sentencing  might  now   be   difficult   or
impossible  to  prove in a jury trial  conducted  years
later.   The State might be in a position of having  to
call  crime  victims, long after the event, to  testify
about  an  incident that the victims  have  put  behind
them.   By  making  Blakely  retroactive,  we  are  not
advancing  an  important constitutional principle.   We
are creating a major administrative problem. Whether  a
person gets his sentence reduced may turn more on  good
fortune  than anything else.  It seems to me  that  the
overwhelming majority of courts that have  declined  to
extend   Blakely  retroactively  have  concluded   that
retroactively   changing  the  law  that   applies   to
sentencing  would be unfair and unduly  disruptive.   I
would follow this overwhelming majority.

MANNHEIMER, Judge, concurring.

          I write separately to address two issues that
our supreme court may confront in the event that one or
more  of the parties petition that court to review  our
decision.   The  first issue is whether  Alaska  should
adopt  the  Teague retroactivity test as  a  matter  of
state  law.   The  second issue is whether,  under  the
Teague  test,  the  right of jury  trial  announced  in
Blakely should be given retroactive application.

Should Alaska adopt the retroactivity test of Teague v.
Lane?

          Although  the parties to the present  appeals
may  be primarily interested in Part II of our decision
(our  resolution of the question of whether the Blakely
right of jury trial will be applied retroactively),  it
is  the  question addressed in Part  I   that  is,  the
question  of  what  law  governs  an  appellate  courts
decision  as to whether a new constitutional rule  will
be  applied  retroactively  that  has  a  more  lasting
importance to our law and to the people of this state.
          Within    twenty   to   twenty-five    years,
essentially   all  of  the  defendants   who   received
presumptive sentences under the pre-March 2005  version
of  our  presumptive sentencing law  will  have  served
their    sentences,   and   the   issue   of   Blakelys
retroactivity  will then be of interest only  to  legal
scholars.  (Remember that Alaska retained indeterminate
sentencing  for the most serious felonies; the  Blakely
decision does not affect those longer sentences.)   But
with  regard to the larger question of what law governs
the  retroactivity  of  new constitutional  rules,  the
answer  will affect the citizens of this state for  the
indefinite future, in many different contexts.
          As  explained  in the majority  opinion,  the
retroactivity test adopted by the United States Supreme
Court  in Teague v. Lane1 was not intended to bind  the
states.  Rather, the Teague test was intended to  limit
the   authority  of  the  federal  courts  when   state
defendants  seek  to  overturn  their  convictions   in
federal habeas corpus litigation.
          Under  Teague, if a state prisoner  initiates
federal  habeas  corpus litigation  and  attacks  their
conviction  on  the  basis of a  new  rule  of  federal
constitutional law, the federal courts  must,  in  most
instances, decline to reach the merits of the prisoners
claim  (assuming  that  the  state  raises  the  Teague
defense  in  a  timely fashion).  But Teague  does  not
prohibit  state courts from extending full  or  partial
retroactivity to a new federal constitutional rule.
          As  the  South Dakota Supreme Court explained
in Cowell v. Leapley, 458 N.W.2d 514 (S.D. 1990):
     
          The  Teague decision [defines the  right
     of] habeas corpus ... granted [under] federal
     statutes.    ...    [But]   various   states,
     including  South Dakota, have  created  state
     rights  of habeas corpus through [their  own]
     statutes.  ...  Each sovereign has the  right
     to  decide how it will allow access  to  this
     extraordinary remedy.  The federal government
     controls how it permits access to the  remedy
     in  its courts, and South Dakota [decides how
     it]  will provide access to habeas corpus  in
     our  courts.   ...  [A] federal  decision  on
     what     criteria    [govern]     retroactive
     application  of  constitutional  law   in   a
     federal  habeas  corpus proceeding  [is  not]
     controlling on a retroactivity question in  a
     state habeas corpus proceeding.
     
Cowell, 458 N.W.2d at 517.
          Nevertheless,   several  state  supreme   courts   have
concluded  that they should adopt the Teague test as a matter  of
state  law.   Of course, one can not say that these  courts  were
wrong,   as   a  legal  matter,  to  declare  that   the   Teague
retroactivity test was an accurate reflection of their states law
on  this subject.  But I believe that these courts were wrong, as
a matter of policy, to adopt the Teague test.
          The Teague retroactivity test was designed to be narrow
designed so that very few constitutional rulings will be  applied
retroactively.   (To date, none has.)  Justice  OConnor  declared
that  the  narrowness  of  the  Teague  test  was  based  on  two
considerations:  federal-state comity, and the societal  interest
in the finality of criminal judgements.2
          Federal-state  comity is a polite way of  referring  to
the  goal  of  avoiding the political difficulties  that  can  be
created  when  the  federal government exercises  authority  over
matters that might reasonably be viewed as being primarily  state
concerns.  This goal has no bearing on the question of whether  a
state   supreme  court  should  grant  or  withhold   retroactive
application  of new constitutional rules to defendants  who  were
prosecuted and convicted under that states law.
          Societys   interest   in  the  finality   of   criminal
judgements  is,  however, just as strong in state post-conviction
litigation  as  it is in federal post-conviction litigation.   To
echo  what  Justice OConnor said in Teague:  judges, prosecutors,
and  police  officers  are understandably  frustrated  when  they
faithfully  apply existing constitutional law only  to  have  [an
appellate]  court discover ... new constitutional commands  in  a
later proceeding for post-conviction relief.3
          Moreover, as this Court noted in Grinols v. State:
          
     Society  [as  a whole] has a substantial
interest   in   making  sure  that   criminal
litigation  eventually reaches an  end.   All
persons    involved   in    the    litigation
defendants,  victims, families  and  friends,
     investigative agencies, as well as the public
at   large   have  a  right  to  expect  that
criminal  cases will be finally  resolved  at
some  point.   If  prisoners are  allowed  to
assert   claims  long  after  their   trials,
society runs the risk that re-trials  may  be
ordered years after the event, when witnesses
may  no longer be available or their memories
of  the pertinent occurrences have been  lost
or   diminished.    In  addition,   piecemeal
litigation of successive and often  fruitless
post-conviction  claims poses  a  significant
cost  to  the courts and the other components
of  the  criminal  justice  system.   As  our
supreme court recognized in Merrill v. State,

     finality  may be a crucial  element  [in
     the]   effectiveness  [of  the  criminal
     law].  A procedural system which permits
     an  endless  repetition of inquiry  into
     facts  and  law  in a  vain  search  for
     ultimate  certitude implies  a  lack  of
     confidence  about  the possibilities  of
     [administering] justice that cannot  but
     war with the effectiveness of the [laws]
     underlying     substantive     commands.
     Furthermore, ... an endless reopening of
     convictions,    with   its    continuing
     underlying implication that perhaps  the
     defendant  can  escape  from  corrective
     sanctions  after  all,  [is  potentially
     inconsistent]   with    the    aim    of
     rehabilitating offenders.

Grinols,  10  P.3d 600, 605-06  (Alaska  App.
2000).4
          The  Teague  test is  doubtless  an
effective  way of preserving the finality  of
criminal   judgements   because,  under   the
Teague test, hardly any constitutional ruling
will  qualify  for  retroactive  application.
But  because  the Teague test  is  so  narrow
that  is,  because  the federal  courts  will
rarely,  if ever, provide relief to  a  state
prisoner who was convicted or sentenced under
procedures  that  violate  a  later-announced
rule of federal constitutional law  it is all
the  more important for state courts to weigh
considerations  of  fairness   as   well   as
considerations  of  finality  when   deciding
whether   a   new  rule  should  be   applied
retroactively.
          As the Tennessee Supreme Court said
when  it  rejected the Teague test,  a  state
court should attempt to dispense justice in a
          manner more befitting state concerns,
history,   and  jurisprudence.   Meadows   v.
State, 849 S.W.2d 748, 754 (Tenn. 1993).   In
other  words, a state court should  have  the
flexibility  to apply new rules retroactively
in situations where a retroactive application
will best achieve justice  even when, because
of  principles of federal-state  comity,  the
federal   courts  should  abstain  from   the
litigation.
          Many   of  the  courts  that   have
adopted Teague as a matter of state law  have
missed  this  crucial  point.   These  courts
explain  their  decisions by  asserting  that
there  should not be two different tests  for
retroactivity,   depending   on   whether   a
prisoner  is litigating in federal  court  or
state court.  See, for example, the words  of
the   Arizona  Supreme  Court  in  State   v.
Slemmer:

[D]iversity    [in   the   rules    governing
retroactivity]  would be  mischievous  and  a
disservice to principles of federalism.   The
law regarding retroactivity is complex enough
without requiring counsel and trial judges to
apply    different    retroactivity    rules,
depending on whether the substantive decision
is    grounded    on   state    or    federal
constitutional  principles   especially  when
many decisions are grounded on both.

823 P.2d 41, 49 (Ariz. 1991).
          But this is wrong:  there should be
different tests for retroactivity.
          The Teague test is very restrictive
because it is based, in large measure,  on  a
policy  that federal courts should be  loathe
to   disrupt  the  finality  of  state  court
judgements.  State courts, on the other hand,
should  have greater authority to  re-examine
their own states judgements.  They should not
hamstring themselves by adopting a test  that
precludes retroactive relief in all  but  the
most  exceptional  cases.   Rather,  as   the
Missouri  Supreme  Court said,  state  courts
should  employ a test that permits [them]  to
consider  the  particular  facts  and   legal
issues  relevant to the specific issue before
[them].  State v. Whitfield, 107 S.W.3d  253,
267 (Mo. 2003).
          Moreover,   because   the   federal
courts are bound by Teague, state courts have
effectively become the courts of last  resort
on  the issue of whether new rules of federal
constitutional   law   should   be    applied
retroactively.   State courts must  therefore
be  free to do justice in situations where  a
new  rule  should,  in fairness,  be  applied
retroactively,  and where this  can  be  done
without   significant   disruption   of   the
criminal justice system.
          I  note  that  the  Alaska  Supreme
Court  has,  on  several occasions,  extended
either    full    or   partial    retroactive
application  to  new rules of  constitutional
law  in  situations where the new rule  would
arguably  (or even clearly) fail  the  Teague
test.   See  State v. Semancik, 99 P.3d  538,
543  (Alaska  2004), Briggs v. Department  of
Public  Safety,  732 P.2d  1078,  1080  n.  4
(Alaska  1987),  Thessen v. State,  508  P.2d
1192,   1195   n.  15  (Alaska  1973),5   and
Rutherford  v.  State, 486 P.2d  946,  952-55
(Alaska  1971).  See also Koch v. State,  653
P.2d  664, 667 (Alaska App. 1982), where this
Court did the same.
          If the Alaska Supreme Court were to
adopt  the  Teague test as state law  on  the
issue  of  retroactivity, the  supreme  court
(and  this  Court) would be barred from  ever
again issuing such decisions.  I believe that
this  would be contrary to the best interests
of the law and the people of Alaska.

Should the proof beyond a reasonable doubt component of
Blakely be applied retroactively under the Teague test?

          Both  Judge Coats (in his dissent) and  Judge
Stewart (in his concurrence) conclude that, if we  were
applying  the  Teague retroactivity test,  the  Blakely
right   of  jury  trial  would  fail  to  qualify   for
retroactive   application.   I   reach   the   opposite
conclusion.
          As explained in this Courts main opinion, the
right  of jury trial announced in Blakely v. Washington
has  two  components:  (1) the right to demand  that  a
jury (rather than a judge) decide the disputed issue of
fact,  and  (2) the right to demand that the government
prove  the  disputed issue of fact beyond a  reasonable
doubt (as opposed to some lesser standard of proof).
          The  United States Supreme Court has  already
rejected  the contention that Blakelys first  component
qualifies for retroactive application under the  Teague
test:   Schriro v. Summerlin, 542 U.S. 348,  124  S.Ct.
2519, 159 L.Ed.2d 442 (2004).
          The  defendant in Summerlin was sentenced  to
death in violation of Apprendi  because a judge (rather
than a jury) decided the issues of fact that determined
whether  he  was  subject to the death  penalty.   When
          Summerlin sought federal habeas corpus relief, the
Supreme Court held that the identity of the fact-finder
was not so crucial an element of the proceedings as  to
qualify  for retroactivity under Teague, because  there
was  no proof that findings of fact made by a jury  are
any more accurate than findings made by a judge .  Id.,
542 U.S. at 355-58, 124 S.Ct. at 2525-26.
          On  this narrow issue, the Supreme Court  may
well  have  been  right.   But,  as  explained  in  our
majority  opinion,  the Supreme  Court  has  repeatedly
emphasized  that the importance of the  right  to  jury
trial  transcends whatever skills the jurors may  bring
to   the   fact-finding  process.   The  jury   is   an
institution that serves as a check on the executive and
judicial   authority  of  the  government,   and   that
preserves the participation and ultimate control of the
community  in matters of criminal justice.  As  Justice
Scalia  (the  author  of Summerlin)  himself  noted  in
Blakely, the right to jury trial
     
     is  no  mere  procedural  formality,  but   a
     fundamental  reservation  of  power  in   our
     constitutional    structure.     ...     [The
     Constitutions  guarantee of]  jury  trial  is
     meant   to   ensure  [the  peoples  ultimate]
     control  in  the  judiciary.   ...   Apprendi
     carries out this design by ensuring that  the
     judges  authority to sentence derives  wholly
     from   the   jurys  verdict.   Without   that
     restriction, the jury would not exercise  the
     control that the Framers intended.
     
     Blakely,  542  U.S. at 305-06, 124  S.Ct.  at
     2538-39 (citations omitted).
               Moreover,  the Summerlin Court  did
     not   consider  whether  the  second  Blakely
     component  the requirement of proof beyond  a
     reasonable  doubt  qualified for  retroactive
     application  under the Teague test.   Arizona
     law  required that death penalty  factors  be
     proved  beyond a reasonable doubt.  See  Ring
     v.  Arizona,  536 U.S. 584,  597;  122  S.Ct.
     2428,  2437;  153 L.Ed.2d 556 (2002).   Thus,
     the   Supreme  Court  in  Summerlin  had   no
     occasion  to consider whether the requirement
     of   proof  beyond  a  reasonable  doubt  was
     implicit in [our] concept of ordered liberty6
     whether it was a procedure so fundamental [to
     the]  fairness  of [a] trial7  that,  without
     it,  the likelihood of an accurate conviction
     is seriously diminished.8
          Just  a few months ago, the Supreme
Court  granted  certiorari on  the  issue  of
whether,  because of the guarantee  of  proof
beyond a reasonable doubt, Blakely meets  the
          Teague test for retroactive application in
federal habeas corpus litigation.  See Burton
v.  Waddington, __ U.S. __, 126  S.Ct.  2352,
165   L.Ed.2d  278  (June  5,  2006).    (The
petitioner, Burton, was sentenced  under  the
same Washington determinate sentencing scheme
that was at issue in Blakely.)  Thus, we  can
expect  the  Supreme Court  to  resolve  this
legal issue by next summer.
          In   the   meantime,  however,   my
colleagues and I have done the best we  could
to  discern  the  answer from  existing  law.
Here is my analysis:

(a)   Why I conclude that the right of jury  trial
recognized  in  Blakely  is  a  new  rule  and   a
procedural rule for purposes of Teague

     Under the test for retroactivity announced in
Teague  v.  Lane, if a court decision announces  a
new  constitutional  rule, and  if  this  rule  is
procedural rather than substantive, the  new  rule
generally will not be applied to defendants  whose
convictions  became  final  before  the  rule  was
announced.   Teague recognizes only two exceptions
to  this rule of non-retroactivity:  (1)  when the
new constitutional rule restricts the authority of
the  government  to criminalize certain  kinds  of
primary, private individual conduct, and (2)  when
the   new   constitutional   rule   requires   the
observance of ... procedures that are implicit  in
the  concept of ordered liberty.  Teague, 489 U.S.
at 307, 109 S.Ct. at 1073.
     (Actually,   as  the  Supreme   Court   later
acknowledged  in Schriro v. Summerlin,  new  rules
that  fall  within the first Teague exception  are
more accurately characterized as substantive rules
[that are] not subject to [Teagues] bar.)9
          I  conclude that Blakely created a  new  rule
for  purposes  of the Teague test.  As Justice  OConnor
wrote in her concurring opinion in Wright v. West,   To
determine  what  counts as a new rule, Teague  requires
courts  to ask whether the rule ... can be meaningfully
distinguished from [the rules] established  by  binding
precedent  at  the  time [the defendants]  state  court
conviction became final. (Emphasis added)10
          Even  though  a newly announced rule  may  be
described  as controlled or governed by prior  judicial
decisions, this does not necessarily decide  the  issue
of  whether the rule is new for purposes of Teague.  As
the Supreme Court explained in Butler v. McKellar,
     
          [T]he  fact that a court says  that  its
     decision is within the logical compass of  an
     earlier  decision,  or  indeed  that  it   is
          controlled by a prior decision,  is  not
     conclusive  for purposes of deciding  whether
     the  current  decision is a  new  rule  under
     Teague.    Courts   frequently   view   their
     decisions as being controlled or governed  by
     prior opinions even when [they are] aware  of
     reasonable  contrary conclusions  reached  by
     other  courts.   ...  [If]  the  outcome  ...
     [was]    susceptible   [of]   debate    among
     reasonable  minds ... , [the rule  should  be
     viewed as] a new rule.
     
     494  U.S.  407, 415; 110 S.Ct. 1212, 1217-18;
     108 L.Ed.2d 347 (1990).
               The decision in Blakely was clearly
     susceptible of reasonable debate, even  after
     the Supreme Courts decision in Apprendi.   In
     the  four years between Apprendi and Blakely,
     many federal and state courts considered  the
     issue  of  whether,  in  light  of  Apprendi,
     determinate sentencing schemes that hinged on
     judge-tried  sentencing  factors  violated  a
     defendants right to trial by jury  under  the
     Sixth  Amendment.   Without exception,  these
     federal   and   state   courts   upheld   the
     determinate  sentencing schemes  against  the
     Sixth Amendment challenge.
          This  fact essentially decides  the
question of whether Blakely announced  a  new
rule.   To paraphrase what the Supreme  Court
said  on this subject in Beard v. Banks, even
though    the   Sixth   Amendment   principle
announced  in  Apprendi could be  thought  to
support  the decision in Blakely,  reasonable
jurists   differed  [on]  this   point,   and
reasonable jurists could have concluded  that
the  [decision  in Apprendi] did  not  compel
[the  decision  in Blakely].11   Accordingly,
Blakely announced a new rule for purposes  of
Teague.
          Additionally, I conclude  that  the
Blakely   rule  is  procedural  rather   than
substantive for purposes of Teague.
          As  the Supreme Court explained  in
Schriro  v.  Summerlin, a rule is substantive
rather than procedural for Teague purposes if
it  alters the range of conduct or the  class
of  persons that the law punishes.  542  U.S.
at  353,  124  S.Ct. at 2523.   In  contrast,
rules  that  regulate  only  the  manner   of
determining  the  defendants culpability  are
procedural.  Id.
          In  Summerlin,  the  Supreme  Court
held  that  the  rule announced  in  Ring  v.
Arizona  the rule that the Sixth Amendment is
          violated when a sentencing judge, sitting
without   a   jury,  finds   an   aggravating
circumstance  that authorizes the  imposition
of the death penalty12  was a procedural rule
for purposes of Teague.

     [The]  holding [in Ring] did  not  alter
the range of conduct Arizona law subjected to
the death penalty.  [Ring] rested entirely on
the Sixth Amendments jury-trial guarantee,  a
provision  that has nothing to  do  with  the
range  of  conduct  a State may  criminalize.
Instead,   Ring   altered   the   range    of
permissible methods for determining whether a
defendants  conduct is punishable  by  death,
requiring  that a jury rather  than  a  judge
find   the   essential   facts   bearing   on
punishment.   Rules that allocate  decision[-
]making   authority  in  this   fashion   are
prototypical  procedural rules, a  conclusion
we have reached in numerous other contexts.

Summerlin, 542 U.S. at 353, 124 S.Ct. at 2523
(citations omitted).
          The  Supreme  Court  then  rejected
Summerlins contention that since, under Ring,
the  death penalty sentencing factors had  to
be  proved  to  a  jury beyond  a  reasonable
doubt,    Ring   effectively   altered    the
definition of murder by declaring that  these
sentencing factors were elements of the crime
thus  making Ring a substantive decision  for
purposes  of  the Teague retroactivity  test.
The Court explained that the expansion of the
right  to  jury  trial  did  not  alter   the
elements of the underlying offense:

     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.  2428.   This
Courts holding that, because Arizona has made
     a  certain  fact essential to the  death
penalty, that fact must be found by  a  jury,
is  not  the  same  as this Courts  making  a
certain  fact essential to the death penalty.
The  former  was  a procedural  holding;  the
latter would be substantive.

Summerlin, 542 U.S. at 354, 124 S.Ct. at 2524
(emphasis in the original).
          (This    Court,   too,     recently
rejected the contention that all facts  which
must  be proved to a jury under Blakely  must
also  be  deemed  elements of the  underlying
crime.   See  State  v. Dague,  __  P.3d  __,
Alaska  App. Opinion No. 2062 (September  15,
2006), 2006 WL 2641732.)
          Based   on   the   Supreme   Courts
resolution  of  this issue  in  Summerlin  (a
decision that was handed down on the same day
as  Blakely),  I conclude that Blakely   like
Ring  established a procedural rule.

(b)  Although Blakely established a new procedural
rule,  the  Blakely guarantee of  proof  beyond  a
reasonable   doubt   qualifies   for   retroactive
application under the Teague test

     For  the  reasons explained in the  preceding
section, I conclude that Blakely established a new
procedural  rule for purposes of the Teague  test.
This being so, Teague declares that Blakely should
not  be  applied  to defendants whose  convictions
became  final before Blakely was announced, unless
the  Blakely rule falls within one of Teagues  two
exceptions.
     Only  one  of  those  exceptions  potentially
applies  here:   the  exception  for  rules   that
require[]  the  observance of ... procedures  that
are  implicit in the concept of ordered  liberty13
rules  which improve the pre-existing fact-finding
procedures  to  such an extent that their  absence
implicate[s]  the  fundamental  fairness  of   [a]
trial14   by  seriously diminishing the likelihood
of  an accurate conviction.15  The question, then,
is  whether Blakelys guarantee of proof  beyond  a
reasonable doubt is such a rule.
          Essentially  every court,  whether  state  or
federal,  that  has  considered the  issue  of  whether
Teague  allows the retroactive application of  Apprendi
and Blakely has concluded that the answer is no.
          However,  this apparently unanimous authority
is  not  as  convincing as it might appear.  The  court
decisions holding that Apprendi and/or Blakely are  not
retroactive  under  the Teague  test  fall  into  three
groups  and only one of these groups actually addresses
          the issue of whether Apprendi and/or Blakely should be
applied retroactively because of the guarantee of proof
beyond a reasonable doubt.
          The  first  group  comprises  decisions  from
jurisdictions like Arizona  jurisdictions that did  not
have  to deal with the proof beyond a reasonable  doubt
aspect of Apprendi and Blakely because governing  state
law already required that aggravating factors be proved
beyond a reasonable doubt.
          The  second  group comprises  decisions  that
simply  do  not address the proof beyond  a  reasonable
doubt  aspect  of  the problem.  Some of  these  courts
omitted  any  discussion of this issue.   Other  courts
noted the proof beyond a reasonable doubt component  of
Apprendi  or Blakely, but then inexplicably  failed  to
address this component in their Teague analysis.   See,
e.g.,  United States v. Gentry, 432 F.3d 600, 605  (5th
Cir.  2005); Never Misses A Shot v. United States,  413
F.3d  781,  783-84  (8th Cir. 2005); United  States  v.
Mora,  293 F.3d 1213, 1219 (10th Cir. 2002); People  v.
Wenzinger,  __  P.3d  __ (Colo.  App.  2006),  2006  WL
1493802 at *6-*7.
          What remains is a smaller group of cases that
address  the  issue of proof beyond a reasonable  doubt
and  expressly conclude that the Apprendi  and  Blakely
guarantee of proof beyond a reasonable doubt is  not  a
fundamental component of our criminal justice system.
          On   the  face  of  it,  this  conclusion  is
shocking.    The  United  States  Supreme   Court   has
repeatedly emphasized the central role of proof  beyond
a  reasonable doubt in our societys system of  criminal
justice.
          In  In  re Winship, 397 U.S. 358, 362-64;  90
S.Ct. 1068, 1071-73; 25 L.Ed.2d 368 (1970), the Supreme
Court  held  that proof beyond a reasonable  doubt  was
among  the  fundamental rights guaranteed  by  the  due
process  clause of the Fourteenth Amendment.  In  other
words,  neither the federal government  nor  any  state
government   has the authority to subject a citizen  to
criminal penalties based on a lesser standard of proof.
          The   Winship   Court   declared   that   the
requirement of proof beyond a reasonable doubt is basic
in  our  law,16   that it is both a requirement  and  a
safeguard of due process of law,17  and that it is [one
of]   the   fundamental  principles  that  are   deemed
essential  for  the protection of life  and  liberty.18
The Winship Court also declared that
     
     use  of  the  reasonable-doubt  standard   is
     indispensable  to  command  the  respect  and
     confidence  of the community in  applications
     of the criminal law.  It is critical that the
     moral  force  of  the  criminal  law  not  be
     diluted  by  a standard of proof that  leaves
     people  in  doubt  whether innocent  men  are
     being condemned.  It is also important in our
     free  society  that  every  individual  going
     about  his  ordinary affairs have  confidence
     that his government cannot adjudge him guilty
     of  a  criminal offense without convincing  a
     proper  factfinder of his guilt  with  utmost
     certainty.
     
     In  re Winship, 397 U.S. at 364, 90 S.Ct.  at
     1072-73.
          See also Sullivan v. Louisiana, 508
U.S.  275,  278;  113 S.Ct. 2078,  2081;  124
L.Ed.2d  182 (1993) (holding that  the  Sixth
Amendment  right  to jury trial  is  violated
when,   even   though  a  jury  decides   the
defendants case, the jury is allowed to  base
its  decision  on less than  proof  beyond  a
reasonable doubt).
          Two  years  after its  decision  in
Winship, the Supreme Court held that the  due
process   requirement  of  proof   beyond   a
reasonable  doubt  should be  applied  wholly
retroactively   that is, even  to  defendants
whose  convictions were final before  Winship
was  announced.  Ivan V. v. City of New York,
407  U.S.  203, 204-05; 92 S.Ct. 1951,  1952;
32 L.Ed.2d 659 (1972).
          In   Ivan  V.,  the  Supreme  Court
declared  that it was obvious that the  major
purpose  of  the constitutional  standard  of
proof beyond a reasonable doubt announced  in
Winship  was  to overcome an  aspect  of  the
criminal  trial  that  [might]  substantially
impair[]  [its] truth-finding  function   and
that,  for this reason, Winship must be given
complete  retroactive  effect  despite  good-
faith  reliance by state governments  on  the
prior law, and regardless of the impact  this
retroactive  application might  have  on  the
administration of justice.  Id., 407 U.S.  at
204-05, 92 S.Ct. at 1952.
          It is true that Ivan V. was decided
under  the law of retroactivity as it existed
before  Teague v. Lane.  But given  what  the
Supreme  Court  said  in  Winship  about  the
central  and indispensable function of  proof
beyond  a  reasonable doubt in our system  of
criminal  justice,  it is inconceivable  that
the  result  in Ivan V. would have  been  any
different   under  the  Teague   test.    The
requirement  of  proof  beyond  a  reasonable
doubt   in   criminal  cases  is  clearly   a
procedure  that is implicit in [our societys]
concept of ordered liberty.19
          So  how  is it, then, that a number
          of federal and state courts have concluded
that,  under  the Teague test, they  are  not
required    to    extend   full   retroactive
application to the proof  beyond a reasonable
doubt component of Apprendi and Blakely?
          The  answer  is found  in  passages
like this one:

     Apprendi is about sentencing only.   For
Apprendi  concerns  to  come  into  play,   a
criminal  defendant must  already  have  been
found  guilty  of  the underlying  crime.   A
defendant  raising an Apprendi claim  ...  is
simply   complaining  that  he   received   a
sentence  in excess of the normal  sentencing
range, without the fact or facts necessary to
permit such sentence having been proven to  a
jury beyond a reasonable doubt.  ...  Thus an
Apprendi  violation  does  not  mean  that  a
defendant  is  imprisoned on a  charge  never
made  ...  and never heard by the jury.   The
most  that  can be said is that  an  Apprendi
violation    results    in    a    defendants
imprisonment on a charge one element of which
the sentencing enhancement  was not proven to
a   jury  beyond  a  reasonable  doubt.   The
Supreme  Court has already held that  failure
to  submit [an] element of a crime to a  jury
may  constitute harmless error[.  See]  Neder
v.  United  States, 527 U.S.  1,  19-20,  119
S.Ct.  1827, 1839, 144 L.Ed.2d 35, 53  (1999)
...  .   We  decline to hold that an Apprendi
violation   comprises   such   constitutional
bedrock as to require retroactive application
... .

People  v. De La Paz, 791 N.E.2d 489,  495-96
(Ill. 2003).
          And in passages like this one:

     We  do  not  believe that requiring  the
jury  to  make  drug quantity  determinations
beyond a reasonable doubt will greatly affect
the  accuracy of convictions.   Nor  is  this
rule  a  bedrock  procedural element.   [T]he
existence of a drug violation was established
beyond   a  reasonable  doubt.   The  alleged
Apprendi  error only concerns an  enhancement
of  the  defendants sentence based on a  drug
quantity  finding  by the judge.   Therefore,
the accuracy of the underlying conviction  is
not at issue.
     .  .  .

     [In     addition],     Sanchez-Cervantes
argument   is   flawed  because   not   every
extension   of   Winship  is  necessarily   a
watershed  rule  of criminal procedure.   The
rules  announced in Winship and Mullaney  [v.
Wilbur,  421  U.S.  684, 95  S.Ct.  1881,  44
L.Ed.2d  508  (1975),] were given retroactive
effect  because  they  were  to  overcome  an
aspect    of   the   criminal   trial    that
substantially   impairs   its   truth-finding
function  and  so  raises  serious  questions
about the accuracy of guilty verdicts[.]  The
application  of  Apprendi  only  affects  the
enhancement of a defendants sentence once  he
or  she  has already been convicted beyond  a
reasonable doubt. Therefore, it does not rise
to  the  level  of importance of  Winship  or
Mullaney.   Allowing the judge  to  determine
the quantity of drugs for sentencing purposes
does not impair the jurys ability to find the
truth   regarding   whether   the   defendant
possessed,   distributed,  or  conspired   to
distribute some amount of drugs.

United States v. S nchez-Cervantes, 282  F.3d
664, 669, 671 (9th Cir. 2002).
          In  other  words, the  courts  that
have declined to extend retroactive effect to
Apprendi  and  Blakely rely on the  following
reasoning:   (1) When an issue of  fact  will
determine  whether the government has  proved
the  elements  of  a crime,  proof  beyond  a
reasonable doubt is crucially important.  But
(2)  when  an  issue  of  fact  is  merely  a
sentencing  factor  that will  determine  the
defendants maximum punishment, proof beyond a
reasonable doubt is not so important.   Thus,
(3)   even  though  Ivan  V.  holds  that   a
defendant  who  has  been convicted  under  a
lesser  standard of proof can obtain  relief,
no  matter when the defendants conviction was
entered,  a defendant whose maximum  sentence
has been increased under a lesser standard of
proof  is  not  entitled  to  relief  if  the
defendants conviction was already final  when
Apprendi and Blakely were decided.
          In  other words, these courts  have
concluded  that the due process guarantee  of
proof  beyond a reasonable doubt  is  not  so
important   when  the  factual  issue   being
litigated affects only the authorized  extent
of   the  defendants  punishment   when   the
disputed  fact  is  only a sentencing  factor
rather than an element of the offense.
          I  believe  that this reasoning  is
flawed.  The dichotomy that these courts rely
on   the  distinction between elements  of  a
crime  and  sentencing factors  is  the  very
dichotomy that the Supreme Court rejected  in
Apprendi,  Blakely,  and  United  States   v.
Booker.20
          In  Apprendi, Blakely, and  Booker,
the  Supreme  Court repeatedly declared  that
the    distinction   between   elements   and
sentencing   factors   is   irrelevant   when
assessing a defendants Sixth Amendment  right
to  jury trial  a right which, under Sullivan
v.  Louisiana, necessarily includes the right
to  demand proof beyond a reasonable doubt.21
Apprendi, Blakely, and Booker stand  for  the
proposition  that when the resolution  of  an
issue  of  fact will determine the authorized
extent  of  the  defendants  punishment,  the
defendant  is  entitled to demand  that  this
fact  be  proved  beyond a  reasonable  doubt
regardless of whether, under state law,  this
issue  of  fact is labeled an  element  or  a
sentencing factor.
          This  point is explained at  length
in  this  Courts recent decision in State  v.
Dague,  __  P.3d __, Alaska App. Opinion  No.
2062  (September 15, 2006), 2006 WL  2641732.
To summarize that discussion:
          The   Supreme  Court  declared   in
Apprendi   that   the   distinction   between
elements  and  sentencing  factors  does  not
provide   a  principled  basis  for  deciding
whether  defendants are entitled  to  a  jury
trial  on particular issues of fact.22   That
is,   the  Court  declared  that  the   Sixth
Amendment right to jury trial does not  hinge
on  whether  a particular issue  of  fact  is
properly  labeled an element or a  sentencing
factor.   Instead, the Court adopted what  it
called a functional test:  regardless of  how
a  particular  issue  of fact  is  classified
under  state law, a defendant has a right  to
demand  that this fact be decided by a  jury,
and a right to demand that the fact be proved
beyond  a reasonable doubt, if resolution  of
this issue of fact against the defendant will
subject  the  defendant to a greater  maximum
punishment than would otherwise be authorized
by a jury verdict that did not encompass this
fact.23
          As   Justice  Scalia  put   it   in
Blakely,  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.24
          Justice  Stevens returned  to  this
theme  that the labels sentencing factor  and
element  are  irrelevant for Sixth  Amendment
purposes  in United States v. Booker.25   The
key   problem   addressed  in  Apprendi   and
Blakely,  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,  that
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.

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.26
          Justice   Scalia  summed  up   this
jurisprudence  in his concurring  opinion  in
Ring  v.  Arizona:  [T]he fundamental meaning
of  the  jury-trial guarantee  of  the  Sixth
Amendment  is  that  all facts  essential  to
imposition  of  the level of punishment  that
the  defendant receives  whether the  statute
calls   them   elements   of   the   offense,
sentencing  factors, or Mary  Jane   must  be
found  by the jury beyond a reasonable doubt.
Ring, 536 U.S. at 610, 122 S.Ct. at 2444.
          Apprendi,  Blakely, and Booker  are
all  premised  on the constitutional  precept
that  if  the resolution of an issue of  fact
will  subject  a  criminal  defendant  to  an
increased range of penalties, then regardless
of  what label the government might attach to
this  issue  of  fact,  it  is  fundamentally
unfair  (for  purposes  of  the  due  process
clause of the Fourteenth Amendment) to  allow
this   issue  to  be  decided  using  a  less
rigorous  standard  of proof  than  beyond  a
reasonable doubt.
          As  I  explained above, many courts
have  refused  to  extend  retroactivity   to
Apprendi  and Blakely because they  concluded
that  a  defendants  right  to  demand  proof
beyond  a  reasonable doubt is  somehow  less
important  when the disputed issue goes  only
to  the defendants range of sentences.   This
approach   is   fundamentally   contrary   to
Apprendi and Blakely.
          The  flaw in these courts reasoning
is  demonstrated by the fact that  even  when
issues  of  fact are labeled  elements  of  a
crime,  these elements perform two functions.
In  some  circumstances, the proof or absence
of   an   element  will  distinguish  between
defendants  who  should be declared  innocent
and those who should be declared guilty.  But
often,  the  proof or absence of  an  element
will   distinguish  between  defendants   who
should be found guilty of a lesser degree  of
crime and those who should be found guilty of
a higher degree of crime.
          In  this latter circumstance,  even
though  the  disputed issue of  fact  may  be
called  an element, it functions much like  a
sentencing  factor.  If the government  fails
to  prove  the  disputed fact, the  defendant
will not be acquitted, but the defendant will
face  a  lower  range of  penalties  for  the
criminal conduct.  If the government succeeds
in   proving  the  disputed  fact,  then  the
defendant will be found guilty of the  higher
degree  of  crime and will, as a consequence,
face a higher range of penalties.
          No  one would suggest that, in such
circumstances,  a defendants right  to  proof
beyond  a  reasonable doubt is  somehow  less
important  because,  regardless  of  how  the
disputed  element is decided,  the  defendant
will  properly be found guilty of some degree
of crime.
          But   this,  in  essence,  is   the
reasoning  employed by the courts  that  have
refused to extend retroactive application  to
Apprendi  and  Blakely.   These  courts  have
declared that the guarantee of proof beyond a
reasonable  doubt is less precious  when  the
disputed  issue  of fact will  not  determine
whether  the defendant is guilty or innocent,
but   will   instead   determine   only   the
defendants   range   of   punishment.    This
analysis  is fundamentally at odds  with  the
Supreme   Courts   decisions   in   Apprendi,
Blakely, and Booker.
          As  Justice  Stevens  explained  in
Booker, the guarantee of jury trial  with its
concomitant  guarantee  of  proof  beyond   a
reasonable  doubt  was being  eroded  by  the
enactment  of determinate sentencing  schemes
under  which the jurys verdict at trial would
subject  the defendant to a limited range  of
sentences,  and then the judges  decision  at
the  sentencing  hearing  might  subject  the
defendant to a much more severe penalty.
          As noted in the majority opinion, a
first  felony  offender convicted  of  first-
degree  sexual assault or first-degree sexual
abuse of a minor faced a maximum sentence  of
8 years imprisonment under the pre-March 2005
version of Alaskas presumptive sentencing law
unless   the   State  proved  one   or   more
aggravating factors at sentencing,  in  which
case  the defendants maximum sentence  became
40  years imprisonment.27  Similarly, a first
felony  offender convicted of  armed  robbery
faced  a maximum sentence of either  5  or  7
years  imprisonment  unless the State  proved
          one or more aggravating factors  at
sentencing,  in  which  case  the  defendants
maximum    sentence    became    20     years
imprisonment.28
          In  other words, when it came  down
to  assessing the defendants actual  jeopardy
for a criminal offense, and the effect that a
criminal   conviction  would  have   on   the
defendants  life and liberty,  it  was  often
more  important for the defendant to  prevail
at the sentencing hearing than it was for the
defendant  to  prevail at  trial.   Apprendi,
Blakely,  and  Booker  all  stand   for   the
proposition  that it is fundamentally  unfair
to  subject a defendant to such increases  in
punishment  unless  the factual  issues  that
trigger the greater penalty are proved beyond
a reasonable doubt.
          Thus,  the courts that have refused
to extend retroactive application to Apprendi
and  Blakely are wrong when they declare that
proof  beyond a reasonable doubt is a crucial
component of due process only when the  issue
being litigated is an element of the offense,
and  that proof beyond a reasonable doubt  is
not   so  important  when  the  issue   being
litigated is merely a sentencing factor  that
determines the defendants maximum penalty for
the offense.
          See the dissenting opinion of Judge
OScannlain  in  Bockting v. Bayer,  418  F.3d
1055,  1057 n. 2 (9th Cir. 2005):  Of course,
Blakely relates to the accuracy of sentences,
not  underlying convictions.  [But] I do  not
see  how  [this] difference can be  material,
...  when the point of Blakely and the entire
line  of jurisprudence stemming from Apprendi
is  precisely that sentencing factors must be
treated as [the equivalent of] elements of  a
crime   when  they  increase  the  defendants
maximum sentence.
          It  is  true,  as many courts  have
pointed  out,  that when the Teague  decision
describes the types of rules that fall within
the  retroactivity exception  for  procedures
that  are implicit in the concept of  ordered
liberty, Teague paraphrases this exception as
encompassing only rules that enforce  bedrock
procedural  elements  [whose  absence   will]
vitiate   the   fairness  of   a   particular
conviction.   489 U.S. at 311, 109  S.Ct.  at
1076  (emphasis added).  The Teague  decision
also paraphrases this retroactivity exception
as   encompassing   only  rules   which,   if
breached,   will  seriously  diminish[]   the
          likelihood of an accurate conviction.  Id.,
489  U.S. at 313, 109 S.Ct. at 1077 (emphasis
added).
          The  courts  that refuse  to  apply
Apprendi and Blakely retroactively often rely
on  this language  in particular, the Supreme
Courts  references to conviction  to  bolster
their   conclusion  that   proof   beyond   a
reasonable doubt is not so important when the
factual  issues being litigated  only  affect
the defendants maximum sentence.
          But  the  Supreme Courts references
to  a  conviction were obviously  not  spoken
with  Apprendi  and Blakely  in  mind   since
Teague   was  decided  eleven  years   before
Apprendi.  More importantly, even though  the
Supreme  Court spoke of ensuring the fairness
and accuracy of a conviction, it appears that
the  Supreme Court was simply using the  word
conviction as a shorthand for the true  rule:
ensuring  the fairness and accuracy of  every
factual  determination required to  establish
the defendants guilt and range of punishment.
          Courts  have traditionally  used  a
similar shorthand when they describe the rule
for   determining  whether  a  defendant   is
entitled  to  a  new  trial  based  on  newly
discovered evidence.  For instance, both  the
Alaska  Supreme  Court and  this  Court  have
repeatedly stated that, in order  to  gain  a
new  trial, the defendant must prove that the
newly   discovered  evidence  would  probably
produce an acquittal.29
          But  this  is  not the  true  rule.
Defendants  are  in fact entitled  to  a  new
trial  if they show that the newly discovered
evidence  would  probably  affect  the  jurys
verdict in any way favorable to the defendant
even  if there is little chance that the jury
would  acquit the defendant altogether.   See
In  re Clark, 855 P.2d 729, 739, 761 nn.  32-
33;  21  Cal.Rptr.2d 509, 519, 541 nn.  32-33
(Cal. 1993) (phrasing the test as whether the
new evidence point[s] unerringly to innocence
or   reduced  culpability);  Summerville   v.
Warden,  State  Prison, 641 A.2d  1356,  1375
(Conn.  1994) (quoting the California Supreme
Courts   language  in  In   re   Clark   with
approval); Bellmore v. State, 602 N.E.2d 111,
121  (Ind. 1992) (stating the test as whether
the  new  evidence would probably  produce  a
different result); State v. Vance, 714 N.W.2d
428,  444 (Minn. 2006) (stating the  test  as
whether the evidence will probably result  in
either  an  acquittal  or  a  more  favorable
          result for the defendant); Yorke v. State,
556  A.2d  230, 235 (Md. 1989)  (stating  the
test  as whether the new evidence would  have
produced  a different result, that is,  there
was  a substantial or significant possibility
that  the verdict of the trier of fact  would
have been affected).
          In particular, courts will grant  a
new  trial  if the newly discovered  evidence
establishes  a substantial probability  that,
even though the jury would have convicted the
defendant, the jury would not have voted  for
the  death  penalty.  State v.  Herrera,  859
P.2d 131, 137 (Ariz. 1993); In re Clark,  855
P.2d  729, 761 nn. 32-33; 21 Cal.Rptr.2d 509,
541  nn. 32-33 (Cal. 1993); Miller v.  State,
843 A.2d 803, 808-09 (Md. 2004).
          Just   as  the  test  for  granting
relief based on newly discovered evidence  is
not  limited to evidence that would  probably
produce  an  acquittal, the Teague  exception
for  new rules that establish procedures  ...
implicit  in  the concept of ordered  liberty
must  not  be  confined  to  procedures  that
ensure  the  fairness  and  validity  of  the
defendants    conviction.     Rather,    this
exception  encompasses  all  procedures  that
ensure  the fairness and validity of judicial
findings  regarding the defendants  level  of
culpability  including the findings that will
determine the defendants maximum sentence.
          This  interpretation of  Teague  is
confirmed  by the Supreme Courts decision  in
Graham  v.  Collins, 506 U.S. 461, 113  S.Ct.
892,  122  L.Ed.2d 260 (1993).  The defendant
in  Graham  had been sentenced  to  death  in
Texas;   he  sought  federal  habeas   corpus
relief,  arguing  that Texas  law  improperly
limited  his  ability to  present  mitigating
information  to  the  jury  that   ultimately
decided to condemn him to death.  The Supreme
Court concluded that Graham was arguing for a
new  rule   that is, a procedural right  that
was  not clearly granted by the Courts  prior
decisions  in  this  area.   The  Court  then
concluded that Grahams proposed rule did  not
meet  the second Teague exception to the  bar
on retroactivity.

     [The  Teague  exception is  limited  to]
such procedures [as] would be ... central  to
an  accurate  determination of  innocence  or
guilt  ... .  [Teague,] 489 U.S. at 313,  109
S.Ct.  at  1077.   We  do  not  believe  that
denying   Graham  special  jury  instructions
concerning his mitigating evidence of  youth,
family  background,  and  positive  character
traits  seriously diminish[ed] the likelihood
of obtaining an accurate determination in his
sentencing proceeding.  Accordingly, we  find
the    second   Teague   exception   to    be
inapplicable ... .

Graham, 506 U.S. at 478, 113 S.Ct. at 903.
          For  present purposes, the important thing is not  that
the  Supreme  Court denied Graham relief.  Rather, the  important
thing  is how the Supreme Court handled Grahams claim.  The Court
did not tell Graham that his claim failed the Teague test because
any  potential flaw related only to the jurys decision to  impose
the  death penalty, rather than to the jurys decision to  convict
Graham.   Rather,  the  Supreme Court  denied  relief  to  Graham
because  the Court concluded that, even if Texas might have  been
required to let Graham present the mitigating evidence he wanted,
the  failure  to honor this purported procedural  right  did  not
seriously  diminish[]  the likelihood of  obtaining  an  accurate
determination  in  [Grahams]  sentencing  proceeding.   (Emphasis
added)
          Similarly, in Schriro v. Summerlin, 542 U.S.  348,  124
S.Ct. 2519, 159 L.Ed.2d 442 (2004), even though the Supreme Court
quoted  Teagues  language  about  ensuring  the  accuracy  of   a
conviction,  Id., 542 U.S. at 352, 124 S.Ct. at 2523,  the  Court
was  in fact dealing with the fairness of a sentencing procedure.
The  factual issues being litigated in Summerlin would determine,
not  the  defendants guilt or innocence, but rather  whether  the
defendant  would  be subjected to capital punishment.   Id.,  542
U.S. at 350, 355-58; 124 S.Ct. at 2521, 2524-26.
          In  other  words,  the second Teague exception  is  not
limited  to  rules  that  ensure  the  fundamental  fairness  and
accuracy  of  a  defendants  conviction.   This  exception   also
encompasses  rules  that  establish  procedures  to  ensure   the
fundamental  fairness and accuracy of the findings of  fact  that
determine the defendants level of punishment.
          For  these  reasons,  I  conclude  that  Teague  allows
retroactive  application of rules of procedure  that  ensure  the
fundamental fairness of the judicial decision-making governed  by
Apprendi  and Blakely  i.e., decisions regarding the  facts  that
determine  a  defendants maximum punishment.  And the requirement
of  proof  beyond a reasonable doubt is a rule that  ensures  the
fundamental fairness of these decisions.
          In  this  context,  the  fairness  and  accuracy  of  a
decision  means something different from the factual accuracy  of
that decision.  As explained in this Courts majority opinion, the
accuracy  of  a  verdict in a criminal case does not  necessarily
mean  that the verdict accurately reflects the true facts of  the
incident  being litigated.  Rather, as the Alaska  Supreme  Court
explained in Shaw v. Department of Administration, 861  P.2d  566
(Alaska  1993),  our  laws insistence on the principle  of  proof
beyond  a reasonable doubt actually entails sacrificing the  goal
of  accurate fact-finding in favor of a more important goal:  the
goal  of  precluding  the  government  from  inflicting  criminal
penalties  on a defendant when there is a reasonable  possibility
that  the  defendant did not do the things that  would  make  the
defendant subject to those penalties. Id. at 571.
          Thus,  an  accurate  verdict in a criminal  case  is  a
verdict that preserves this latter principle:  the principle that
no  criminal penalty shall be inflicted in the absence  of  proof
beyond a reasonable doubt of all the facts necessary to authorize
that punishment.
          In  Ivan  V. v. City of New York,30  the United  States
Supreme  Court  extended full retroactivity to the constitutional
requirement that all facts necessary to establish the  defendants
guilt be proved beyond a reasonable doubt.  Now that Apprendi and
Blakely have clarified that this same requirement of proof beyond
a  reasonable  doubt  applies  equally  to  the  facts  that  are
necessary to establish the defendants maximum punishment,  I  see
no  principled reason to refuse retroactive relief to  defendants
who were denied this right.  It is fundamentally unfair to keep a
defendant  in prison for years  perhaps for decades  longer  than
the  otherwise  authorized presumptive term of imprisonment  when
the  government  has never proved the facts that  authorized  the
longer sentence beyond a reasonable doubt.
          I therefore conclude that Blakely must be accorded full
retroactivity under the Teague test.

_______________________________
     1See  Judd  v.  State, 482 P.2d 273, 277-78  (Alaska  1971),
adopting  the  test set forth in Linkletter v. Walker,  381  U.S.
618, 636-38; 85 S.Ct. 1731, 1741-42; 14 L.Ed.2d 601 (1965).

2See   State  v.  Semancik,  99  P.3d  538,  543  (Alaska  2004);
State v. Wickham, 796 P.2d 1354, 1358-59 (Alaska 1990); State  v.
Glass, 596 P.2d 10, 12-13 (Alaska 1979); Judd v. State, 482  P.2d
273, 278 (Alaska 1971).

310 P.3d 600 (Alaska App. 2000).

4Grinols, 10 P.3d at 610.

5Id.   See also Wainwright v. Sykes, 433 U.S. 72, 78-79;  97
S.Ct. 2497, 2502; 53 L.Ed.2d 594 (1977).

6433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

7See  Reed v. Ross, 468 U.S. 1, 9; 104 S.Ct. 2901, 2907;  82
L.Ed.2d 1 (1984):  Our decisions have uniformly acknowledged
that  federal courts are empowered under 28 U.S.C.  2254  to
look  beyond  a state procedural forfeiture and entertain  a
state  prisoners  contention that his constitutional  rights
have been violated.  [Citations omitted]  The more difficult
question  ... is:  What standards should govern the exercise
of  the [federal] courts equitable discretion in the use  of
this power?

8Sykes, 433 U.S. at 86-87, 97 S.Ct. at 2506.

9Id., 433 U.S. at 87-89, 97 S.Ct. at 2506-07.

10Ross, 468 U.S. at 5, 104 S.Ct. at 2904-05.

11Id., 468 U.S. at 14-15, 104 S.Ct. at 2909-2910.

12Quoting Justice Harlans concurring and dissenting opinion
in Mackey v. United States, 401 U.S. 667, 691; 91 S.Ct.
1160, 1179; 28 L.Ed.2d 404 (1971).

13Teague,  489 U.S. at 307, 109 S.Ct. at 1073  (quoting
Justice  Harlans concurring and dissenting  opinion  in
Mackey, 401 U.S. at 692-93, 91 S.Ct. at 1180).

14Teague, 489 U.S. at 312, 109 S.Ct. at 1076.

15Id., 489 U.S. at 313, 109 S.Ct. at 1077.

16381 U.S. 618, 636-38; 85 S.Ct. 1731, 1741-42; 14 L.Ed.2d
601 (1965).

17Quoting extensively from Justice Harlans concurring and
dissenting opinion in Mackey v. United States, 401 U.S.
667, 682-83, 689; 91 S.Ct. 1160, 1175, 1178; 28 L.Ed.2d
404 (1971).

18Teague, 489 U.S. at 308, 109 S.Ct. at 1074.

19Id.

20Id., 489 U.S. at 309, 109 S.Ct. at 1074.

21Teague, 489 U.S. at 309-310, 109 S.Ct. at 1075 (quoting
Paul  J. Mishkin, Foreword:  The High Court, the  Great
Writ,  and the Due Process of Time and Law, 79  Harvard
L. Rev. 56, 77-78 (1965)).

22Id.

23Teague, 489 U.S. at 306, 109 S.Ct. at 1073.

24Id., 489 U.S. at 309-310, 109 S.Ct. at 1075 (quoting Paul
J.  Mishkin,  Foreward, 79 Harvard L. Rev.  at  77-78).
(For  the full citation to Prof. Mishkins article,  see
footnote 21, supra.)

25Teague, 489 U.S. at 309, 109 S.Ct. at 1074.

26Quoting Butler v. McKellar, 494 U.S. 407, 414; 110 S.Ct.
1212, 1217; 108 L.Ed.2d 347 (1990).

27See Beard v. Banks, 542 U.S. 406, 408; 124 S.Ct. 2504,
2508; 159 L.Ed.2d 494 (2004).

28486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

29Commonwealth v. Banks, 656 A.2d 467, 470 (Pa. 1995).

30Banks v. Horn, 271 F.3d 527 (3rd Cir. 2001).

31Id., 271 F.3d at 543.

32Id. at 541.

33Id. at 543.

34Griffith, 479 U.S. at 323-24, 328; 107 S.Ct. at 713-14,
716.

35Quoting  Francis  X.  Beytagh,  Ten  Years  of   Non-
Retroactivity:  A Critique and a Proposal,  61  Va.  L.
Rev. 1557, 1558 & n. 3 (1975).

36See SLA 1995, ch. 39,  32-39.

     37Griffith,  479 U.S. at 323-24, 328; 107 S.Ct.  at  713-14,
716.

38530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

39Quoting Leland, 343 U.S. 790, 802-03; 72 S.Ct. 1002, 1009;
96 L.Ed. 1302 (1952).

40Shaw, 861 P.2d at 570.

41401  U.S.  646, 653; 91 S.Ct. 1148, 1152; 28  L.Ed.2d  388
(1971).

     42See, e.g., State v. Dague, __ P.3d __, Alaska App. Opinion
No. 2062 (September 15, 2006), slip opinion at 2; 2006 WL 2641732
at  *1;  Moore v. State, 123 P.3d 1081, 1091 (Alaska App.  2005);
Haag v. State, 117 P.3d 775, 782 (Alaska App. 2005).

43Overruled  on  other  grounds in  State  v.  Dunlop,  721  P.2d
604 (Alaska 1986).

44__   P.3d  __,  Alaska  App.  Opinion  No.  2060  (August   25,
2006), slip opinion at 20; 2006 WL 2458578 at *10.

     45In reverse chronological order, these cases are:  State v.
Dague,  __  P.3d __, Alaska App. Opinion No. 2062 (September  15,
2006),  2006 WL 2641732; Cleveland v. State, __ P.3d  __,  Alaska
App. Opinion No. 2060 (August 25, 2006), 2006 WL 2458578; Steward
v.  State,  Alaska App. Memorandum Opinion No. 5109  (August  23,
2006),  2006 WL 2458574; State v. Herrmann, 140 P.3d 895  (Alaska
App.  2006);  Ohler v. State, Alaska App. Memorandum Opinion  No.
5081  (June 21, 2006), 2006 WL 1720076; Richards v. State, Alaska
App. Memorandum Opinion No. 5077 (May 31, 2006), 2006 WL 1515606;
Aguchak  v. State, Alaska App. Memorandum Opinion No.  5075  (May
17,  2006), 2006 WL 1360938; Walsh v. State, 134 P.3d 366 (Alaska
App.  2006);  Tyler  v. State, 133 P.3d 686 (Alaska  App.  2006);
Geisler v. State, Alaska App. Memorandum Opinion No. 5062  (March
22,  2006), 2005 WL 3883159; State v. Avery, 130 P.3d 959 (Alaska
App.  2006);  Olson v. State, Alaska App. Memorandum Opinion  No.
5038  (February 8, 2006), 2006 WL 306907; Carlson v.  State,  128
P.3d 197 (Alaska App. 2006); Fox v. State, Alaska App. Memorandum
Opinion   No.   5029  (December  21,  2005),  2005  WL   3508661;
Vandergriff  v. State, 125 P.3d 360 (Alaska App. 2005);  Snelling
v.  State, 123 P.3d 1096 (Alaska App. 2005); Moore v. State,  123
P.3d  1081  (Alaska  App. 2005); Stithem v.  State,  Alaska  App.
Memorandum Opinion No. 5016 (October 26, 2005), 2005 WL  2757786;
State  v.  Kalmakoff, 122 P.3d 224 (Alaska App. 2005);  Simon  v.
State, 121 P.3d 815 (Alaska App. 2005); Greist v. State, 121 P.3d
811  (Alaska App. 2005); DeRushe v. State, Alaska App. Memorandum
Opinion  No. 5011 (October 5, 2005), 2005 WL 2444359;  McDole  v.
State,  121  P.3d 166 (Alaska App. 2005); Grossman v. State,  120
P.3d  1085  (Alaska App. 2005); Dayton v. State,  120  P.3d  1073
(Alaska  App.  2005);  Ned v. State, 119 P.3d  438  (Alaska  App.
2005);  Middendorf v. State, Alaska App. Memorandum  Opinion  No.
5002 (August 17, 2005), 2005 WL 1971243; Grohs v. State, 118 P.3d
1080  (Alaska App. 2005); Edmonds v. State, 118 P.3d  17  (Alaska
App.  2005); Milligrock v. State, 118 P.3d 11 (Alaska App. 2005);
Peltola  v.  State,  117 P.3d 771 (Alaska App.  2005);  Paige  v.
State, 115 P.3d 1244 (Alaska App. 2005); State v. Gibbs, 105 P.3d
145 (Alaska App. 2005).

     46Croughen v. State, Alaska App. Memorandum Opinion No. 5047
(February 22, 2006), 2006 WL 438749; Haag v. State, 117 P.3d  775
(Alaska App. 2005).

     47__  P.3d  __,  Alaska App. Opinion No.  2060  (August  25,
2006), slip opinion at 22; 2006 WL 2458578 at *11.

     48Former AS 12.55.125(i) (pre-March 2005 version).

49Former AS 12.55.125(c) (pre-March 2005 version).

50542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004).

51Id., 542 U.S. at 355-58; 124 S.Ct. at 2525-26.

52Overruled on other grounds in State v. Malloy, 46 P.3d 949
(Alaska 2002).

53Green v. State, 462 P.2d 994, 997 (Alaska 1969).

54Hamilton was using the word palladium in the sense of a
thing  on  which the safety of something else  depends.
The word palladium originally referred to any statue of
the  goddess Pallas Athena.  Websters New World College
Dictionary, Fourth Edition (2004), p. 1037.  The  sense
in  which Hamilton employed this word derives from  the
legend   that   the  citadel  of  Troy   would   remain
unconquered  only so long as the statue of  its  patron
goddess, Pallas Athena, was preserved.  Id.
See also http://en.wikipedia.org/wiki/Palladium_(mythology).

55Quoting Green v. State, 462 P.2d 994, 997 (Alaska 1969)
(quotation marks omitted).

56See  Benboe  v.  State,  698  P.2d  1230,  1232  (Alaska   App.
1985).

     57See, e.g., Tyler v. State, 133 P.3d 686, 689 (Alaska  App.
2006); Snelling v. State, 123 P.3d 1096, 1099 (Alaska App. 2005);
Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005).

     58Cleveland  v. State, __ P.3d __, Alaska App.  Opinion  No.
2060  (August 25, 2006), slip opinion at 22; 2006 WL  2458578  at
*11.

     59See  Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska  1994);
Demoski  v.  New,  737 P.2d 780, 786 (Alaska  1987);  Millman  v.
State,  841  P.2d  190,  195  (Alaska  App.  1992);  Russell   v.
Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981).

1542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

2489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

3543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

4See  Guzman v. United States, 404 F.3d 139, 141-44 (2d Cir.
2005);  In re Olopade, 403 F.3d 159, 160-64 (3d Cir.  2005);
United  States  v.  Gentry, 432 F.3d 600, 602-06  (5th  Cir.
2005);  Simpson v. United States, 376 F.3d 679, 680-81  (7th
Cir.  2004);  Schardt v. Payne, 414 F.3d 1025, 1034-36  (9th
Cir.  2005);  United States v. Price, 400 F.3d  844,  845-49
(10th Cir. 2005); In re Dean, 375 F.3d 1287, 1290 (11th Cir.
2004).

5Teague, 489 U.S. at 301, 109 S.Ct. at 1070.

6Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519,
2522-23, 159 L.Ed.2d 442 (2004).

7Id.

8Id., 542 U.S. at 352, 124 S.Ct. at 2522-23.

9Id., 542 U.S. at 352, 124 S.Ct. at 2523.

10Id.  (quoting Suffle v. Parks, 494 U.S. 484,  494-95,  110
S.Ct.  1257,  1264,  108 L.Ed.2d 415 (1990)  (some  internal
quotation marks and citation omitted)).

11542  U.S. 348, 352, 124 S.Ct. 2519, 2523, 159 L.Ed.2d  442
(2004).

12536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

13Schriro, 542 U.S. at 358, 124 S.Ct. at 2526.

14Id., 542 U.S. at 351, 124 S.Ct. at 2522 (citing Ring,  536
U.S. at 603-09, 122 S.Ct. at 2440-43).

15See id., 542 U.S. at 351 n.1, 124 S.Ct. at 2522 n.1.

16Id., 542 U.S. at 353, 124 S.Ct. at 2523.

17Id., 542 U.S. at 358, 124 S.Ct. at 2526.

18Id.,  542  U.S.  at  355-56, 124 S.Ct.  at  2525  (quoting
Teague,  489  U.S.  at 312-13, 109 S.Ct. at  1076-77)  (last
alteration in original).

19Id., 542 U.S. at 358, 124 S.Ct. at 2526.

20Burton v. Waddington, 142 Fed. Appx. 297 (9th Cir.  2005),
cert. granted, ___ U.S. ___, 126 S.Ct. 2352, 165 L.Ed.2d 278
(U.S. June 5, 2006) (No. 05-9222).

1542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2006).

2117 P.3d 775 (Alaska App. 2005).

3Id.  at 783 (citing American Trucking Assns, Inc. v. Smith,
496  U.S.  167, 177, 110 S.Ct. 2323, 2330, 110  L.Ed.2d  148
(1990)).   See also Page v. Palmateer, 84 P.3d  133,  136-37
(Or.  2004)  (utilizing  Teague in  reference  to  Apprendis
retroactivity);  State  v. Gomez,  163  S.W.3d  632,  650-51
(Tenn.  2005)  (holding  that  application  of  Blakely   is
dictated by federal law).

4Haag,  117  P.3d at 783 (quoting Griffith v. Kentucky,  479
U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)).

5489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

6Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519,
2522,  159 L.Ed.2d 442 (2004).  The federal appellate courts
have universally used Teague in determining that Blakely  is
not  retroactive.   See In re Zembrano, 433  F.3d  886,  888
(D.C. Cir. 2006); United States v. Gentry, 432 F.3d 600, 602-
03 (5th Cir. 2005); United States v. Morris, 429 F.3d 65, 69
(4th  Cir. 2005); Schardt v. Payne, 414 F.3d 1025, 1036 (9th
Cir.  2005); Never Misses A Shot v. United States, 413  F.3d
781,  783 (8th Cir. 2005); Lloyd v. United States, 407  F.3d
608, 613 (3rd Cir. 2005); Cirilo-Munoz v. United States, 404
F.3d 527, 532 (1st Cir. 2005); Guzman v. United States,  404
F.3d  139, 141 (2d Cir. 2005); Valera v. United States,  400
F.3d 864, 867 (11th Cir. 2005); United States v. Price,  400
F.3d  844, 846 (10th Cir. 2005); Humphress v. United States,
398  F.3d  855,  860  (6th  Cir.  2005);  United  States  v.
McReynolds, 397 F.3d 479, 481 (7th Cir. 2005).  Of the state
courts  that  have considered Blakely, some have  determined
that  Teague  controls  the retroactivity  of  this  federal
constitutional   question.   See   In   re   Consiglio,   27
Cal.Rptr.3d  167,  169  (Cal.  Ct.  App.  2005);   State  v.
Houston,  702  N.W.2d  268, 270 (Minn.  2005).   Some  state
courts  have utilized Teague because their state has adopted
Teague  as its own retroactivity test.  See State v. Febles,
115 P.3d 629, 632 (Ariz. Ct. App. 2005); State v. Wenzinger,
___  P.3d ___, 2006 WL 1493802 at *4 (Colo. Ct. App.  2006).
And  other  state  courts have used Teague  as  the  federal
retroactivity test, while reserving the right to  use  their
own  state  retroactivity principles to treat Blakely  as  a
question  of state law.  See State v. Evans, 114  P.3d  627,
633 (Wash. 2005).

7See  Zembrano, 433 F.3d at 889; Gentry, 432  F.3d  at  605;
Morris,  429  F.3d at 69;  Payne, 414 F.3d  at  1036;  Never
Misses  A  Shot, 413 F.3d at 783; Lloyd, 407  F.3d  at  613;
Cirilo-Munoz,  404 F.3d at 533; Guzman,  404  F.3d  at  141;
Valera,  400 F.3d at 867; Price, 400 F.3d at 846; Humphress,
398  F.3d at 860; McReynolds, 397 F.3d at 481; Houston,  702
N.W.2d  at 273-74; Consiglio, 27 Cal. Rptr.3d at 170; Evans,
114 P.3d at 633; Langford v. State, 929 So.2d 598, 600 (Fla.
Dist.  Ct.  App.  2006); Smith v. State, 922  So.2d  43,  46
(Miss. Ct. App. 2006).

8See State v. Coon, 974 P.2d 386, 394 (Alaska 1999).

946 P.3d 949 (Alaska 2002).

10530 U.S. 466, 120 S.Ct.. 2348, 147 L.Ed.2d 435 (2000).

11Malloy, 46 P.3d at 957.

12See  Juneby  v. State, 641 P.2d 823, 829-33  (Alaska  App.
1982), modified and superseded on other grounds, 665 P.2d 30
(Alaska App. 1983).

13Id. at 830; former AS 12.55.125(d) and (e) (pre-March 2005
version).

14Former AS 12.55.125(c).

15Juneby, 641 P.2d at 830.

16Former AS 12.55.125(a).

17Juneby, 641 P.2d at 831.

18627 P.2d 657 (Alaska App. 1981).

19Id. at 658.

20776 P.2d 320 (Alaska App. 1989).

21Id. at 326-27.

22530 U.S. at 490, 120 S.Ct. at 2362-63.

23542 U.S. at 303, 124 S.Ct. at 2537.

24Former AS 12.55.155 (a) and (f).

25Former AS 12.55.155(f).

26Haag, 117 P.3d at 782.

27___  P.3d  ___,  Alaska App. Opinion No.  2060  (Aug.  25,
2006), 2006 WL 2458578.

28Id. at 20, 2006 WL 2458578 at *11.

29See AS 12.44.155(c)(4); Krasowich v. State, 731 P.2d  598,
601 (Alaska App. 1987).

30See AS 12.55.155(c)(1); Woods v. State, 667 P.2d 184, 187-
88 (Alaska App. 1983).

31Krasovich, 731 P.2d at 603; Woods, 667 P.2d at 187-88.

1489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

2Teague, 489 U.S. at 308, 109 S.Ct. at 1074.

     3Id., 489 U.S. at 310, 109 S.Ct. at 1075.

4Quoting Merrill v. State, 457 P.2d 231, 236 (Alaska 1969).

5Overruled on other grounds in State v. Dunlop, 721 P.2d 604
(Alaska 1986).

6Teague, 489 U.S. at 307, 109 S.Ct. at 1073.

7Id., 489 U.S. at 312, 109 S.Ct. at 1076.

8Id., 489 U.S. at 313, 109 S.Ct. at 1077.

9Schriro v. Summerlin, 542 U.S. 348, 352 & n. 4; 124 S.Ct.
2519, 2522 & n. 4; 159 L.Ed.2d 442 (2004).

10Wright  v. West, 505 U.S. 277, 304; 112 S.Ct. 2482,  2497;
120 L.Ed.2d 225 (1992) (OConnor, J., concurring).

11Beard v. Banks, 542 U.S. 406, 416; 124 S.Ct. 2504, 2513;
159 L.Ed.2d 494 (2004).

12Ring v. Arizona, 536 U.S. 584, 609; 122 S.Ct. 2428, 2443;
153 L.Ed.2d 556 (2002).

13Teague, 489 U.S. at 307, 109 S.Ct. at 1073.

14Id., 489 U.S. at 312, 109 S.Ct. at 1076.

15Id., 489 U.S. at 330, 109 S.Ct. at 1086 (Brennan, J.,
dissenting).

16Id., 397 U.S. at 362, 90 S.Ct. at 1071.

17Id.

18Id., 397 U.S. at 362, 90 S.Ct. at 1072.

19Teague, 489 U.S. at 307, 109 S.Ct. at 1073.

20United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005).

21Sullivan, 508 U.S. 275, 278; 113 S.Ct. 2078, 2081; 124
L.Ed.2d 182 (1993).

22Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348,
2355; 147 L.Ed.2d 435 (2000).

23Id., 530 U.S. at 494, 120 S.Ct. at 2365.

24Blakely, 542 U.S. at 305, 124 S.Ct. at 2538.

25543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

26Booker,  543 U.S. at 231, 125 S.Ct. at  748  (quoting
Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63).

27Former AS 12.55.125(i) (pre-March 2005 version).

28Former AS 12.55.125(c) (pre-March 2005 version).

29James v. State, 84 P.3d 404, 406 (Alaska 2004); Salinas v.
State, 373 P.2d 512, 514 (Alaska 1962); Lewis v. State,
901 P.2d 448, 450 (Alaska App. 1995); Charles v. State,
780 P.2d 377, 383 (Alaska App. 1989).

     30407 U.S. 203, 204-05; 92 S.Ct. 1951, 1952; 32 L.Ed.2d  659
(1972).

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