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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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