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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
| STATE OF ALASKA, | ) | |
| ) Court of Appeals No. A-9148 | ||
| Petitioner, | ) Trial Court No. 3AN-99-8227 CR | ) |
| v. | ) | |
| ) O P I N I O N | ||
| RONNIE MORENO, | ) | |
| ) | ||
| Respondent. | ) No. 2075 December 8, 2006 | |
| ) | ||
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Philip R.
Volland, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Petitioner. John M. Murtagh,
Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In 2004, Ronnie Moreno was convicted of two counts of
first-degree sexual abuse of a minor.1 As a first felony
offender, Moreno faced an 8-year presumptive term of imprisonment
under the pre-March 2005 version of Alaskas presumptive
sentencing law.2 The State proposed no aggravating factors.
Accordingly, Moreno would apparently have received the specified
8-year term of imprisonment on each count. But rather than
sentence Moreno, the superior court ruled that Alaskas entire pre-
2005 presumptive sentencing law was unconstitutional.
Superior Court Judge Philip R. Volland noted
(correctly) that the procedures specified in the presumptive law
for adjudicating aggravating factors violated the right to jury
trial announced in Blakely v. Washington.3 Judge Volland then
ruled that these procedures were so crucial to the overall
functioning of presumptive sentencing that they could not be
severed or amended by judicial decision, and that the presumptive
sentencing law as a whole had to be struck down. Accordingly,
the court announced its intention to sentence Moreno as if the
presumptive sentencing law did not exist with indeterminate
sentencing within the range of imprisonment specified by the
legislature for first-degree sexual abuse of a minor (Morenos
misconduct occurred in 1998, when the sentencing range for first-
degree sexual abuse of a minor was 0 to 30 years4).
The State has petitioned us to review the superior
courts decision.
It is true that Alaskas pre-2005 presumptive sentencing
law violated the Sixth Amendment right to jury trial recognized
in Blakely because, under that law, aggravating factors (i.e.,
factors authorizing the superior court to impose a higher maximum
sentence) were litigated to the sentencing judge under a clear
and convincing evidence standard,5 rather than to a jury under a
beyond a reasonable doubt standard. Nevertheless, we
conclude that these constitutionally flawed procedures can be
replaced by jury trial procedures that conform to the
requirements of Blakely without destroying the essential
functioning and purpose of Alaskas presumptive sentencing scheme.
We therefore reverse the superior court and uphold the overall
constitutionality of Alaskas pre-March 2005 presumptive
sentencing law.
When portions of a statute or particular applications
of a statute are unconstitutional, the courts must decide whether
the invalid portions or applications may be severed from the
operation of the statute (thus allowing the valid portions to
remain in effect), or whether the statute should be declared
unconstitutional as a whole.6
The Alaska Statutes contain a general severability
clause, AS 01.10.030, that is designed to preserve to as great an
extent as possible all valid portions of enactments by the Alaska
State Legislature.7 This statute reads:
Any law ... enacted by the Alaska
legislature which lacks a severability clause
shall be construed as though it contained the
clause in the following language: If any
provision of this Act, or the application
thereof to any person or circumstance is held
invalid, the remainder of this Act and the
application to other persons or circumstances
shall not be affected thereby.
With this rule in mind, we examine Alaskas pre-March 2005
presumptive sentencing law.
The manner in which aggravating factors are litigated
under the pre-2005 law does not conform to Blakely. But the
essential functioning of the presumptive sentencing law is not
defeated when aggravating factors are litigated to a jury under a
beyond a reasonable doubt standard. Indeed, when the Alaska
legislature amended the presumptive sentencing law in the spring
of 2005 to bring it into conformity with Blakely, the legislature
did not return to indeterminate sentencing (which existed before
the enactment of presumptive sentencing). Rather, the
legislature retained the basic framework of presumptive
sentencing, including the same scheme of aggravating factors and
mitigating factors but with the proviso that many of these
aggravating factors are to be litigated to a jury and proved
beyond a reasonable doubt. See AS 12.55.155(f).
When the legislature enacted this amended version of
the presumptive sentencing law, it declared that its purpose was
to preserve the basic structure of Alaskas presumptive sentencing
system [and to] avoid disparate sentences.8 The legislature has
clearly indicated that it believes these goals are best achieved
not by throwing out presumptive sentencing, but by altering the
pre-2005 sentencing procedures to incorporate the right to jury
trial announced in Blakely.
When the superior court decided Morenos case, this
court had yet to issue many of our decisions clarifying the
effect of Blakely on Alaskas presumptive sentencing laws. In
particular, this court had not issued Cleveland v. State,9 in
which we explained how Alaskas pre-2005 law differed in crucial
ways from the types of presumptive sentencing laws at issue in
Blakely and in United States v. Booker.10 Nor had we issued our
decision in State v. Dague,11 in which we held that aggravating
factors need not be charged in the indictment, and in which we
addressed many of the potential constitutional objections to
having a second jury trial to resolve aggravating factors that
were not originally proved in conformity with Blakely.
Thus, even though the constitutional difficulties posed
by the pre-2005 presumptive sentencing law may have appeared
insurmountable in late 2004 when the superior court issued its
ruling in Morenos case, the legal situation looks much different
today.
It is now clear that there are many situations in which
Alaskas pre-March 2005 presumptive sentencing law can be applied
without violating Blakely. The Blakely right to jury trial does
not apply to aggravating factors that are based on the defendants
prior convictions, nor does it apply to aggravating factors that
flow directly from the trial jurys verdicts, nor does it apply to
aggravating factors that are expressly conceded by the
defendant.12 And, as we explained in Cleveland, the proof of a
single Blakely-compliant aggravating factor was sufficient under
the former law to authorize the superior court to exceed the
presumptive term of imprisonment for that offense.13
Moreover, in cases where there is no Blakely-compliant
aggravating factor, and Blakely requires that a jury trial be
held on the States proposed aggravators, a jury trial on the
aggravators is a permissible procedure.14 And, as explained
above, the Alaska legislature endorsed this same procedure when
it enacted the current version of presumptive sentencing.
Moreno argues that the concept of severability does not
allow a court to fashion a remedial procedure or interpretation
to cure the constitutional infirmity in a statute. Rather,
Moreno argues, severability is limited to the subtraction of the
offending statutory provisions or applications, and then dealing
with whatever remains. In the present case, Moreno argues that
what remains is a presumptive sentencing scheme that has no valid
procedure for proving aggravating factors which, in Morenos
view, means that we must decide whether the legislature would
still want presumptive sentencing if no aggravating factors could
ever be proved.
We disagree. It is within our judicial authority to
alter litigation procedures to ensure that they conform to
constitutional guarantees. In particular, it is within our
authority to order that defendants receive a jury trial on
proposed aggravating factors that are not Blakely-compliant.
The Alaska Supreme Court faced a similar situation in
R.L.R. v. State.15 At the time of the R.L.R. litigation, former
AS 47.10.070 specified that all juvenile delinquency proceedings
in Alaska were to be adjudicated by a judge sitting without a
jury.16 In R.L.R., the Alaska Supreme Court held that, under the
due process and equal protection guarantees of the Alaska
Constitution, the right to jury trial guaranteed by Article I,
Section 11 of the Alaska Constitution had to be extended to
juveniles who are charged with acts of delinquency that would
constitute jailable criminal offenses if committed by an adult.17
That is, former AS 47.10.070 was unconstitutional to the extent
that it specified trial by judge.
Under Morenos view of severability, the supreme court
should then have declared the entire juvenile delinquency law
unconstitutional, and should have enjoined all delinquency trials
until the legislature redrafted AS 47.10 to conform to the
supreme courts expansion of the right to jury trial. But, of
course, that did not happen. Instead, AS 47.10 remained in
force, and delinquency trials continued but with the juveniles
now receiving their constitutionally mandated trial by jury.
This same principle applies to the present case. Under
Blakely, the defendants who faced sentencing under the pre-March
2005 version of Alaskas presumptive sentencing law were entitled
to trial by jury with respect to many of the aggravating factors
listed in AS 12.55.155(c). The solution, however, is not to
jettison presumptive sentencing. Rather, the solution is to give
these defendants the jury trial to which they are
constitutionally entitled.
For this reason, we reject the superior courts
conclusion that the pre-2005 presumptive sentencing law is
irremediably flawed. We uphold the pre-2005 law with the
proviso that defendants must receive a jury trial on aggravating
factors if mandated by Blakely.
The ruling of the superior court that Alaskas pre-
March 2005 presumptive sentencing law is unconstitutional, and
that indeterminate sentencing must be reinstated for all pre-
March 2005 offenses is REVERSED. The superior court shall
sentence Moreno in accordance with the pre-2005 presumptive
sentencing law, modifying any procedures as necessary to comply
with Blakely.
_______________________________
1 AS 11.41.434(a)(1).
2 Former AS 12.55.125(i)(1) (Moreno was convicted under the
pre-September 2003 version).
3 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
4 Former AS 12.55.125(I) (pre-September 2003 version).
5 Former AS 12.55.155(f) (pre-March 2005 version).
6 See, e.g., Sonneman v. Hickel, 836 P.2d 936, 940 (Alaska
1992).
7 Lynden Transp., Inc. v. State, 532 P.2d 700, 711 (Alaska
1975). This intent is bolstered by the rule of interpretation
that statutes should be construed if reasonably possible so as to
avoid a conclusion that they are unconstitutional. Sonneman, 836
P.2d at 940.
8 Ch. 2, 1, SLA 2005.
9 143 P.3d 977 (Alaska App. 2006).
10543 U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621
(2005).
11143 P.3d 988 (Alaska App. 2006).
12Cleveland, 143 P.3d at 981-83.
13Id. at 988.
14Dague, 143 P.3d at 1010-14.
15487 P.2d 27 (Alaska 1971).
16The statute read, in pertinent part: All hearings under
this chapter are without a jury ... . See R.L.R., 487 P.2d at 29
n.1.
17R.L.R., 487 P.2d at 32-33.
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