|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JAMES DONALD SURRELLS, | ) |
| ) Court of Appeals No. A-9458 | |
| Appellant, | ) Trial Court No. 3AN-98-6211 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2076 December 8, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: David W. Miner, Seattle,
Washington, for the Appellant. Diane L.
Wendlandt, 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.
This appeal raises the issue of whether the Sixth
Amendment right to jury trial recognized in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),
limits the superior courts authority to revoke the probation of a
first felony offender who was sentenced, not under Alaskas
presumptive sentencing law, but rather under former AS
12.55.125(k)(2).
Under Alaskas pre-March 2005 sentencing laws, first
felony offenders convicted of class B and class C felonies were
not subject to presumptive sentencing. Instead, their sentencing
was governed by AS 12.55.125(k). Subsection (2) of this statute
did not limit a defendants total sentence (the combined total of
suspended jail time and unsuspended jail time), but it did set a
ceiling on the time to serve component of the sentence if the
State failed to prove aggravating factors or extraordinary
circumstances. This ceiling was 4 years if the defendant was
convicted of a class B felony, and 2 years if the defendant was
convicted of a class C felony.
In an earlier case, State v. Gibbs, 105 P.3d 145, 148
(Alaska App. 2005), we held that a defendant sentenced under AS
12.55.125(k)(2) had no right to a jury trial under Blakely so
long as the defendants unsuspended term of imprisonment (the time
to serve component of the defendants sentence) did not exceed the
applicable ceiling even though the defendant received additional
suspended time that put the defendants total sentence above the
ceiling.
But in Gibbs, we left one issue unresolved.1 This
issue arises when a first felony offender was sentenced under AS
12.55.125(k)(2), and the defendants original sentence did not
require proof of aggravators or extraordinary circumstances
(i.e., the time to serve component of the sentence did not exceed
the statutory ceiling), but the superior court later revokes the
defendants probation and imposes enough of the defendants
previously suspended jail time to raise the defendants total time
to serve above the 2-year or 4-year ceiling.
The question is whether, under Blakely, the defendant
is entitled to demand a jury trial on any facts that the
sentencing judge may rely on when deciding to revoke the
defendants probation and impose the previously suspended jail
time. For the reasons explained here, we hold that Blakely does
not apply to this situation.
The sentencing statute at issue in this case: former
AS 12.55.125(k)(2)
In 1999, James Donald Surrells was convicted
of second-degree robbery, a class B felony.2 Because
Surrells was a first felony offender, and because
Alaskas pre-2005 sentencing law did not prescribe a
presumptive term of imprisonment for first felony
offenders convicted of class B felonies, Surrellss
sentencing range was governed by two statutes: AS
12.55.125(d) and former AS 12.55.125(k)(2).
AS 12.55.125(d) declares that the sentencing
range for class B felonies is 0 to 10 years
imprisonment. And former AS 12.55.125(k)(2)
established a limitation on sentencing judges authority
to sentence first felony offenders within this 0- to 10-
year range.
Under AS 12.55.125(k)(2), first felony
offenders who were not subject to presumptive
sentencing i.e., first felony offenders convicted of a
class B or class C felony [could] not be sentenced to
a term of unsuspended imprisonment ... exceed[ing] the
presumptive term [specified] for a second felony
offender convicted of the same crime unless the
sentencing judge found:
by clear and convincing evidence that an
aggravating factor [listed in] AS 12.55.
155(c) [was] present, or that circumstances
exist[ed] that would warrant a referral to
the three-judge [sentencing] panel under
AS 12.55.165.
We construed this sentencing
statute in Cook v. State, 36 P.3d 710 (Alaska
App. 2001), and in State v. Gibbs, 105 P.3d
145 (Alaska App. 2005), and we examined the
constitutionality of the statute (so
construed) in Dayton v. State, 120 P.3d 1073
(Alaska App. 2005).
In Cook, 36 P.3d at 730, and in
Gibbs, 105 P.3d at 148, we held that
AS 12.55.125(k)(2) did not limit a first
felony offenders total term of imprisonment.
Rather, the statute limited only the time to
serve component of a first felony offenders
sentence (in the absence of aggravating
factors or extraordinary circumstances). And
in Dayton, 120 P.3d at 1079-1083, we upheld
the constitutionality of this statute, so
construed.
At the time of Surrellss offense,
the presumptive term for a second felony
offender convicted of a class B felony was 4
years imprisonment.3 Thus, under
AS 12.55.125(k)(2), although Surrellss total
sentence (his unsuspended term of
imprisonment plus his suspended term of
imprisonment) could be as high as 10 years
(the maximum penalty for class B felonies),
the unsuspended portion of Surrellss sentence
i.e., his time to serve could not exceed 4
years unless the sentencing judge found one
or more of the aggravating factors listed in
AS 12.55.155(c), or unless the sentencing
judge found extraordinary circumstances as
defined in AS 12.55.165.
(This latter statute, AS 12.55.165,
is a safety valve provision for cases in
which a felony defendant is subject to a
presumptive term of imprisonment. The
statute authorizes a sentencing judge to
refer the defendants case to the statewide
three-judge sentencing panel a special body
that is authorized to sentence a defendant
outside the normal strictures of the
presumptive sentencing law if the case
presents extraordinary circumstances. The
statute lists two types of extraordinary
circumstances: (1) if the sentencing judge
finds by clear and convincing evidence that
manifest injustice would result from failure
to consider an aggravating or mitigating
factor that is not listed in AS 12.55.155(c)
(d), or (2) if the sentencing judge finds
that manifest injustice would result from
imposition of the presumptive term, even
after the sentencing judge has adjusted the
presumptive term to the extent of the
authority granted by AS 12.55.155(a) based on
the aggravating and mitigating factors listed
in AS 12.55.155(c) (d). See Kirby v. State,
748 P.2d 757, 762 (Alaska App. 1987),
construing this statute.)
Surrellss initial sentence, and the later modification
of that sentence when the superior court revoked
Surrellss probation in 2001
At Surrellss original sentencing hearing in
1999, the State alleged four aggravating factors
under AS 12.55.155(c): (c)(1) that a person
(other than an accomplice) was injured as a direct
result of Surrellss conduct; (c)(4) that Surrells
used a dangerous instrument when committing the
robbery; (c)(5) that Surrells knew or reasonably
should have known that the victim of the offense
was particularly vulnerable or incapable of
resistance; and (c)(10) that Surrellss conduct
was among the most serious within the definition
of second-degree robbery (both because Surrells
employed a dangerous instrument and because he
caused serious physical injury to the victim).
It appears that none of these proposed
aggravators was Blakely-compliant; that is, none
of the four aggravators was based on Surrellss
prior criminal convictions, or stemmed directly
from the facts admitted by Surrells when he
entered his plea. In fact, Surrells actively
disputed all four of the States proposed
aggravators.
Superior Court Judge Larry D. Card found that
the State had proved all four aggravating factors.
Thus, under former AS 12.55.125(k)(2), Judge Card
was authorized to sentence Surrells to more than 4
years to serve.
However, Judge Card did not exercise this
authority. Instead, he imposed a sentence that would
have been lawful even if the State had failed to prove
aggravating factors or extraordinary circumstances.
Surrells received 6 years with 4 years suspended i.e.,
2 years to serve.
Under the terms of the superior courts
judgement, Surrells was placed on probation for 5 years
following his release from prison.
In 2001, Judge Card revoked Surrellss
probation and imposed 2 years of the previously
suspended jail time. After serving this additional
jail time, Surrells had served a total of 4 years
imprisonment, and he had a remaining 2 years of
suspended jail time.
In January 2005, the State again petitioned
to revoke Surrellss probation. Three weeks later,
Surrells filed a motion seeking a correction of his
sentence, and asking the superior court to release him
from custody and absolve him of all further probation.
Surrellss argument was based on the Sixth
Amendment right to jury trial as construed by the
United States Supreme Court in Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Surrells acknowledged that, under former AS
12.55.125(k)(2), the superior court had the authority
to impose his original sentence 6 years with 4 years
suspended even in the absence of aggravating factors.
That is, Surrells acknowledged that his original
sentence did not violate Blakely. See State v. Gibbs,
105 P.3d at 148.
Surrells also implicitly conceded that the
amended sentence he received in 2001 (effectively, 6
years with 2 years suspended) did not violate Blakely
either since Judge Card could have imposed up to 4
years of time to serve when he initially sentenced
Surrells, even in the absence of aggravating factors or
extraordinary circumstances.
However, Surrells argued that there would be
a Blakely violation if the superior court granted the
States current petition to revoke his probation, and if
the superior court then decided to impose any portion
of Surrellss remaining 2 years of suspended
incarceration.
Surrells contended that the superior court
could not impose any more of Surrellss previously
suspended jail time without violating Surrellss right
to jury trial under Blakely. Surrells noted that he
had already served 4 years the ceiling specified in
former AS 12.55.125(k)(2) for cases where no
aggravating factors or extraordinary circumstances were
proved. Based on this fact, and based on the fact that
Surrells had not received a jury trial on the four
aggravating factors that were litigated at his original
sentencing hearing, Surrells asserted that the superior
court had no authority to impose any portion of
Surrellss remaining 2 years of suspended jail time.
Surrells asked the superior court to discharge [him]
from further service of [his] sentence.
In the alternative, again based on Blakely,
Surrells asked the superior court to (1) grant him a
jury trial as to all post-conviction facts that the
State intended to rely on at the probation revocation
hearing, and to (2) require the State to prove these
facts beyond a reasonable doubt.
Judge Card initially denied all of Surrellss
requests primarily because the judge concluded that
Surrells was seeking a retroactive application of
Blakely, and because the judge further concluded that
Blakely did not apply retroactively.
However, at the disposition hearing, Judge
Card indicated that he had changed his mind about
Blakely. The judge stated that if [he were] to
strictly follow Blakely, Mr. Surrells would be entitled
to a jury trial before any more imprisonment was
imposed because Surrells had already served 4 years in
prison, an amount of imprisonment equal to the
presumptive term specified for second felony offenders
convicted of the same offense. Judge Card then stated
that, even though Surrells might be entitled to a jury
trial, [it is] impractical for this court to order up a
jury. There is no provision [for such a procedure]
under our law. ... I am at a loss as to what to do.
After a little further reflection, Judge Card
announced that he would fashion his disposition order
so as to moot the Blakely issue: he did not order
Surrells to serve any more jail time, but he instead
returned Surrells to probation, with the 2 suspended
years of imprisonment (less the amount of time that
Surrells spent in jail awaiting his disposition
hearing) still hanging over his head.
Surrellss argument that, because of Blakely, the
superior court lacks the authority to impose any more
of his suspended jail time and that, as a consequence,
Surrells must now be released from probation
Surrells concedes that neither his original
sentence nor his 2001 probation revocation sentence
violated Blakely because, under former
AS 12.55.125(k)(2), proof of aggravating factors or
extraordinary circumstances was needed only if the
superior court intended to sentence him to more than 4
years of unsuspended jail time. However, now that the
superior court has imposed a total of 4 years to serve,
Surrells argues that Blakely prohibits the superior
court from imposing any more of his suspended jail time
because, if the superior court did that, Surrellss
total time to serve would exceed the 4-year ceiling
imposed by former AS 12.55.125(k)(2).
Surrells contends that, now that his total
time served equals 4 years, [f]urther punishment ... is
permissible only with proof of an aggravator [in
compliance with Blakely]. As we explained earlier in
this opinion, none of the four aggravators litigated at
Surrellss original sentencing hearing were based on
prior criminal convictions, nor did they stem directly
from the facts admitted by Surrells when he entered his
plea. That is, none of these aggravators were Blakely-
compliant.
(Surrells also argues that the superior court
is barred from relying on these four aggravating
factors for the additional reason that the aggravating
factors were not charged in Surrellss indictment. We
recently rejected the argument that, under Blakely,
aggravating factors must be charged in the indictment
and proved to the grand jury. State v. Dague, 143 P.3d
988 (Alaska App. 2006).)
Surrellss ultimate position is that, not only
is the superior court barred from requiring him to
serve any more jail time, but the superior court is
also obliged to immediately discharge from further
probation supervision.
Surrells points out that this Court has
declared that probation without suspended jail time is
meaningless. Figueroa v. State, 689 P.2d 512, 514
(Alaska App. 1984). See also Franzen v. State, 573
P.2d 55, 57 (Alaska 1978), and Manderson v. State, 655
P.2d 1320, 1324 (Alaska App. 1983) both holding that a
sentence of probation without a corresponding suspended
term of imprisonment is a nullity. Surrells argues
that his probation, too, has now become meaningless
because, he contends, the Blakely decision effectively
bars the superior court from imposing any further
portion of his suspended jail time.
If a first felony offender is sentenced under AS 12.55.
125(k)(2) and does not receive more time to serve than
the presumptive term that would apply to a second
felony offender convicted of the same crime, the right
to jury trial recognized in Blakely v. Washington does
not apply to the defendants case even when, because of
later revocations of the defendants probation, the
superior court ultimately imposes more time to serve
than the presumptive term for a second felony offender
Surrellss central contention is that the
right to jury trial recognized in Blakely v. Washington
limits the superior courts authority to revoke a
defendants probation if the defendant is a first felony
offender who was sentenced under former
AS 12.55.125(k)(2).
It is clear both from the wording of AS
12.55.125(k)(2), and from the construction that we gave
the statute in Cook and Gibbs that the Blakely right
to jury trial would indeed be triggered if, at the
defendants original sentencing, the superior court
wished to impose a sentence that included a time to
serve component exceeding the presumptive term for a
second felony offender convicted of the same crime.
Under the statute, the superior court had no authority
to impose such a sentence unless the State proved one
or more of the aggravating factors listed in AS
12.55.155(c), or unless the State proved extraordinary
circumstances as defined in AS 12.55.165. Thus, to the
extent that the proposed aggravating factors or
extraordinary circumstances hinged on issues of fact
(other than the defendants prior criminal convictions),
a defendant would be entitled to demand that those
factual issues be decided by a jury, and to demand that
the facts be proved beyond a reasonable doubt.4
But, as explained above, Surrellss initial
sentence 6 years with 4 years suspended did not
require proof of aggravating factors or extraordinary
circumstances. AS 12.55.125(k)(2) did not restrict a
defendants total sentence (that is, the defendants
suspended time plus time to serve). Rather, the
statute only restricted the time to serve component of
the defendants sentence.
Surrellss time to serve 2 years was less
than the 4-year presumptive term that would have
applied to his case if he had been a second felony
offender. Judge Card therefore had the authority to
impose Surrellss original sentence of 6 years with 4
years suspended based on Surrellss guilty plea alone,
even in the absence of aggravating factors or
extraordinary circumstances. Dayton, 120 P.3d at 1078-
1080; Gibbs, 105 P.3d at 148.
But even though there was no Blakely
violation at Surrellss original sentencing that is,
even though Judge Card had the authority to impose 2
years to serve and an additional 4 years of suspended
jail time Surrells contends that Blakely limits Judge
Cards authority to later revoke Surrellss probation and
impose this suspended jail time. According to
Surrells, this limitation was triggered when Judge Card
revoked Surrellss probation in 2001 and imposed 2 years
of the previously suspended jail time thus increasing
the time to serve component of Surrellss sentence to
4 years.
Surrells points out that if his probation is
again revoked in the future, and if the superior court
orders him to serve any further portion of the
previously suspended jail time, the time to serve
component of his sentence would then exceed 4 years.
Surrells further points out that, under former
AS 12.55.125(k)(2), as supplemented by the Blakely
decision, the superior court would have been barred
from imposing more than 4 years to serve at Surrellss
original sentencing hearing in 1999 if the State failed
to prove Blakely-compliant aggravating factors or
extraordinary circumstances. From this, Surrells
concludes that Blakely now bars the superior court from
revoking his probation and imposing any of the
remaining suspended jail time.
But the Blakely right to jury trial attaches
only to issues of fact which, if decided against the
defendant, will increase the defendants potential
maximum sentence. Thus, Surrellss Blakely argument
rests on the implicit assertion that when a sentencing
court revokes a defendants probation and imposes some
or all of the defendants previously suspended jail
time, the sentencing court is increasing the defendants
sentence for constitutional purposes. This is not
true.
We addressed this point in Reyes v. State,
978 P.2d 635 (Alaska App. 1999):
It practically goes without saying
although the United States Supreme Court
expressly said it in United States v.
DiFrancesco [, 449 U.S. 117, 137; 101 S.Ct.
426, 437; 66 L.Ed.2d 328 (1980)] that the
double jeopardy clause is not violated when a
sentencing court revokes a defendants
probation and imposes a previously suspended
prison term. In such circumstances, the
defendants sentence has not been increased
because, from the beginning, it was
understood that the defendants imprisonment
would remain suspended only if the defendant
abided by the conditions of probation.
. . .
Since the DiFrancesco decision, most
courts have held (either explicitly or
implicitly) that when a defendant challenges
a modification of their sentence on double
jeopardy grounds, the double jeopardy issue
must be resolved by examining the applicable
sentencing statutes and deciding whether,
from the beginning, the court was authorized
to modify the sentence in that way.
Reyes, 978 P.2d at 639.
The United States Supreme Court
reiterated this approach to the issue in
Ralston v. Robinson, 454 U.S. 201, 102 S.Ct.
233, 70 L.Ed.2d 345 (1981). The Court
declared that the rule prohibiting a
post-sentencing increase in a defendants
sentence simply does not apply when [the
legislature] has provided a court with the
power to modify a sentence in light of
changed circumstances. 454 U.S. at 217 n.
10, 102 S.Ct. at 244 n. 10.
Under Alaska law, when a sentencing
court suspends a portion of a defendants term
of imprisonment and places the defendant on
probation, it is understood that if the
defendant violates the probation conditions,
the sentencing court has the authority to
order the defendant to serve the previously
suspended jail time. Thus, there is no
increase in the defendants sentence when,
based on the defendants post-sentencing
conduct, the sentencing court finds good
cause to revoke the defendants probation and
impose some or all of the previously
suspended term of imprisonment.
(For similar reasons, a defendant
has no right to trial by jury or to proof
beyond a reasonable doubt at a probation
revocation hearing even when the defendants
alleged violation of probation constitutes a
new, separately punishable crime. See
Gilligan v. State, 560 P.2d 17, 19 (Alaska
1977) (A probation revocation hearing is not
a criminal proceeding in the sense that
indictment, jury trial[,] and proof beyond a
reasonable doubt are required[.]); Adams v.
Ross, 551 P.2d 948, 950 (Alaska 1976);
Trumbly v. State, 515 P.2d 707, 709 (Alaska
1973); Snyder v. State, 496 P.2d 62, 63
(Alaska 1972); Hernandez v. State, 691 P.2d
287, 290 (Alaska App. 1984).)
Surrellss case does not involve any
potential increase in his maximum sentence.
The sentence that Surrells received at his
1999 sentencing hearing 6 years with 4 years
suspended was authorized under Alaska law,
even in the absence of aggravating factors or
extraordinary circumstances. And, as we have
just explained, a defendants sentence is not
increased (for constitutional purposes) when
the sentencing court later revokes the
defendants probation and imposes some or all
of the defendants previously suspended jail
time.
The Blakely right to jury trial
applies only to issues of fact that will
increase the defendants potential maximum
sentence for a criminal offense. It is true
that Surrells faces a potential maximum of 6
years to serve if he again violates his
probation and if the superior court
determines that his misconduct warrants
imposition of his remaining 2 suspended years
of imprisonment. But Surrells has faced that
same conditional maximum sentence ever since
he was originally sentenced. Under the
pertinent Alaska sentencing statutes, the
superior court was authorized to impose that
original sentence 6 years with 4 years
suspended without proof of aggravating
factors or extraordinary circumstances. And,
under both Alaska and federal law, the
revocation of a defendants probation does not
constitute an increase in the defendants
sentence for constitutional purposes.
Accordingly, the superior court has
complete statutory authority to revoke
Surrellss probation again in the future, and
to impose some or all of Surrellss remaining
2 years of suspended imprisonment, even in
the absence of Blakely-compliant aggravating
factors or extraordinary circumstances.
The relationship of this Courts Austin line of cases to
the sentencing authority conferred by former AS
12.55.125(k)(2)
Surrells argues that although the wording of
the pertinent Alaska sentencing statutes may
appear to authorize the superior court to revoke
his probation and impose his previously suspended
jail time in an amount that brings his total time
to serve above 4 years, even without proof of
aggravating factors or extraordinary
circumstances, nevertheless this Courts prior
decisions concerning the sentencing of first
felony offenders command a different result.
Surrells relies on the line of cases
beginning with Austin v. State, 627 P.2d 657
(Alaska App. 1981).
Our decision in Austin was aimed at
addressing an anomaly created by the Alaska
Legislatures decision to exempt most first felony
offenders from presumptive sentencing. Under the
pre-2005 version of Alaskas presumptive sentencing
law, all defendants with at least one prior felony
conviction were subject to a specified presumptive
term of imprisonment, and the superior court was
prohibited from sentencing the defendant to a term
of imprisonment greater than the specified
presumptive term unless the State proved
aggravating factors or extraordinary
circumstances. But first felony offenders
convicted of a class B or class C felony were not
subject to presumptive sentencing; thus, the
superior court had complete authority to sentence
the defendant to any term of imprisonment (up to
the maximum for that class of felony), even in the
absence of aggravating factors or extraordinary
circumstances.
Conceivably, under this statutory scheme, if
a first felony offender and a second felony offender
engaged in exactly the same criminal conduct, and if
the State could not prove aggravating factors or
extraordinary circumstances, the superior court could
lawfully sentence the first felony offender to a more
severe sentence than the second felony offender.
In Austin, this Court recognized that there
would be instances where a first felony offender should
properly receive a more severe sentence than a second
felony offender convicted of the same crime. [I]t is
... clear that the legislature did not intend ... that
a first offender could never receive more time to serve
than the presumptive [term] for a second offender,
since the statute[s] easily could have been written to
accomplish that result. Austin, 627 P.2d at 658
(emphasis added).
Nevertheless, to alleviate the potential for
unfairly disparate sentences, this Court established
the Austin rule the rule that [n]ormally a first
[felony] offender should receive a more favorable
sentence than the presumptive [term] for a second
[felony] offender. 627 P.2d at 657-58. We declared
that this rule should be violated only in an
exceptional case. 627 P.2d at 658.
In Brezenoff v. State, 658 P.2d 1359, 1362
(Alaska App. 1983), we clarified that an exceptional
case for Austin purposes was one in which substantial
aggravating factors or extraordinary circumstances were
present. And, to bring the Austin rule into closer
conformity with the rules governing presumptive
sentencing, we held in Buoy v. State, 818 P.2d 1165,
1167-68 (Alaska App. 1991), that, for Austin purposes,
aggravating factors or extraordinary circumstances had
to be proved by clear and convincing evidence the same
standard that would apply to the proof of aggravating
factors under AS 12.55.155(f), or to the proof of
extraordinary circumstances under AS 12.55.165 175, in
cases governed by presumptive sentencing.
However, soon after our decision in Austin,
we clarified that, for purposes of assessing whether a
first felony offender had received a more favorable
sentence than a second felony offender, the Austin rule
focused on the time to serve component of the
defendants sentence. Tazruk v. State, 655 P.2d 788
(Alaska App. 1982). The Tazruk decision clarified that
the Austin rule restricted a first felony offenders
time to serve, but not a first felony offenders
suspended jail time.
Like Surrells, the defendant in Tazruk was
convicted of a class B felony.5 A second felony
offender convicted of the same offense would face a
presumptive term of 4 years.6 The defendant in Tazruk
received a sentence of 8 years with 5 years suspended
i.e., 3 years to serve.7 On appeal, Tazruk argued that
this sentence violated the Austin rule, but this Court
rejected that argument:
[I]n evaluating whether a sentence is in
excess of the presumptive [term] which a
second felony offender would receive, our
primary focus [is] on [the unsuspended]
portion of the sentence ... . By that
standard, the three years of imprisonment to
which Tazruk is sentenced is less than the
four years which a second felony offender
would [presumptively] receive. ... Tazruks
sentence does not violate the Austin rule.
Tazruk, 655 P.2d at 789.
This Court adopted the Austin-
Tazruk sentencing rule under our common-law
power to declare the law in the absence of
governing legislation.8 And, as we explained
(and held) in Cook v. State, 36 P.3d 710, 730
(Alaska App. 2001), the legislatures
subsequent enactment of AS 12.55.125(k)
later recodified as 125(k)(2)9 was intended
to codify the Austin-Tazruk sentencing rule
(with slight modifications).
Surrellss original sentence needed
no special justification under
AS 12.55.125(k)(2). But his case presents
the issue of what limitations, if any, the
Austin-Tazruk rule and its statutory
successor, AS 12.55.125(k)(2), place on the
superior courts authority to revoke a first
felony offenders probation and impose jail
time that was originally suspended.
In previous decisions, this Court
has declared that when the superior court
revokes the probation of a first felony
offender, the court should not impose a total
time to serve that exceeds the presumptive
term for a second felony offender unless the
overall circumstances of the case (the
defendants background, the facts of the
original offense, plus the defendants conduct
while on probation) demonstrate that the
defendants case is more serious than that of
a typical second felony offender convicted of
the same offense:
Before finding that an offenders
probation violations justify a total sentence
exceeding the applicable presumptive term for
a second felony offender, the sentencing
court must conclude that the offenders poor
conduct on probation, when viewed in
conjunction with all of the originally
available sentencing information, renders the
case even more serious and therefore
deserving of even greater punishment than
the case of a typical second felony offender
committing a typical offense of the same
class.
Chrisman v. State, 789 P.2d 370, 371 (Alaska App. 1990).
Or, phrased another way, the relevant question in such
cases is whether the totality of the circumstances all the facts
presented to the court at the original sentencing proceedings,
plus all the facts presented to the court during the probation
revocation proceedings would have justified a sentence in excess
of the Austin limit if this totality of circumstances had been
known when the original sentence was imposed. Luepke v. State,
765 P.2d 988, 990-91 (Alaska App. 1988).
In Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986),
this Court clarified that no particular aggravating factor need
be proved in order to justify the imposition of a probation
revocation sentence more severe than the presumptive term for a
second felony offender. Rather, we declared that if a defendants
probation violations established that the defendant had unusually
poor prospects for rehabilitation, this fact could be deemed an
extraordinary circumstance justifying the imposition of a
probation revocation sentence in excess of the normal Austin
ceiling. 725 P.2d at 724. See also Kriner v. State, 798 P.2d
359, 361 (Alaska App. 1990).
Nevertheless, based on the principles that this Court
applied in Chrisman, Luepke, and Witt, Surrells argues that if a
first felony offender has been sentenced under AS
12.55.125(k)(2), the superior court is obliged to find either
aggravating factors or extraordinary circumstances before
imposing a probation revocation sentence that exceeds the
presumptive term for a second felony offender convicted of the
same crime. And, because the superior courts sentencing
authority hinges on proof of aggravating factors or extraordinary
circumstances, Blakely guarantees the defendants right to a jury
trial on these factors or circumstances.
Surrellss argument is based on a misreading of our
cases. Although this Courts decisions in Chrisman, Luepke, and
Witt place a limitation on the sentencing discretion of superior
court judges when they revoke the probation of first felony
offenders who are not subject to presumptive sentencing, this
limitation is in the nature of a benchmark sentencing rule a
rule that guides a sentencing judges discretion within the fairly
expansive sentencing authority granted by the legislature.
The crucial fact is that the sentencing of these
offenders was not governed by the pre-March 2005 presumptive
sentencing statutes. The Alaska Legislature imposed only one
limitation on the sentencing of these first felony offenders:
the sentencing statute that we discussed above,
AS 12.55.125(k)(2). And, as we explained above, this statute
restricted only the superior courts authority to impose time to
serve on a first felony offender. The statute did not restrict
the amount of suspended imprisonment that a first felony offender
might receive. Moreover, the statute contained no restriction on
the sentencing courts authority to revoke the defendants
probation and impose this suspended imprisonment.
It is true that this Courts decisions in Chrisman,
Luepke, and Witt affected a judges sentencing discretion when the
judge was revoking a first felony offenders probation. We
directed judges to consider whether the totality of the
circumstances the defendants background, the defendants original
criminal conduct, and the defendants subsequent conduct while on
probation showed that the defendant should receive a more severe
sentence than the sentence that would be imposed on a typical
second felony offender who engaged in typical conduct within the
definition of the crime.
But this Court never held that, when revoking a first
felony offenders probation, the judge had to make a formal
finding of aggravating factors or extraordinary circumstances
under the procedures specified in AS 12.55.155175. In
particular, this Court has never held that, at probation
revocation proceedings, the sentencing court had to find
aggravating factors or extraordinary circumstances by clear and
convincing evidence as opposed to the preponderance of the
evidence standard that normally applies at probation revocation
hearings. (Compare Buoy v. State, 818 P.2d 1165, 1168 (Alaska
App. 1991), where we held that the litigation of aggravating
factors or extraordinary circumstances for purposes of the Austin
rule at a first felony offenders initial sentencing was indeed
governed by the clear and convincing evidence standard of proof.)
Nor did we suggest in Witt that the extraordinary
circumstances demonstrated by the defendants poor history on
probation had to be referred to the statewide three-judge
sentencing panel under AS 12.55.165175.
(Under Alaskas presumptive sentencing laws, a single
superior court judge has no authority to adjust a defendants
presumptive term of imprisonment based on extraordinary
circumstances. If the sentencing judge believes that a case
presents extraordinary circumstances, the judge is directed to
refer the case to the statewide three-judge panel. See AS
12.55.165. Only the three-judge panel has the authority to make
a final ruling on the existence of extraordinary circumstances,
and only the three-judge panel has the authority to adjust the
defendants sentence based on extraordinary circumstances. See
AS 12.55.175.)
As explained above, we held in Witt that a first felony
offenders poor performance on probation could be deemed an
extraordinary circumstance that, under the Austin rule, might
justify the sentencing judge in imposing the defendants
previously suspended jail time in a total amount exceeding the
normal Austin ceiling. If, as Surrells suggests, we meant that
the sentencing judges decision was governed by the same formal
rules as the rules that apply in presumptive sentencing cases,
then we would have required the sentencing judge to refer the
defendants probation revocation proceedings to the three-judge
panel the only judicial body authorized to adjust a sentence
based on the existence of exceptional circumstances in
presumptive sentencing cases.
But we did not suggest such a course of action in Witt,
nor did we suggest that the sentencing judge somehow lost
jurisdiction over the defendants sentencing in these instances.
Rather, our Witt decision assumed that the individual sentencing
judge had the authority to make a finding of extraordinary
circumstances.
The answer to this seeming conundrum lies in the fact
that these cases were not governed by presumptive sentencing.
Instead, the Austin line of cases used the presumptive sentencing
rules by analogy as guidelines for a judges exercise of
discretion in non-presumptive sentencing cases. As we said in
Luepke, a probation revocation sentence that exceeds Austin
limits should be imposed only when the circumstances of the
defendants case would qualify as statutory aggravating factors or
... would justify referral to the three-judge sentencing panel if
the defendant were subject to presumptive sentencing. Luepke,
765 P.2d at 990 (emphasis added).
In Chrisman, Luepke, and Witt, we directed sentencing
judges to evaluate a first felony offenders probation revocation
sentence by reference to the aggravators listed in
AS 12.55.155(c) and by reference to the concept of extraordinary
circumstances defined in AS 12.55.165. But the fact remains
that, under the pre-March 2005 version of Alaskas sentencing law,
the formal rules governing presumptive sentencing cases did not
apply to the sentencing of first felony offenders convicted of
class B or class C felonies, nor to the revocation of their
probation. Our decisions in Chrisman, Luepke, and Witt were
intended to provide a benchmark to guide superior court judges
when they exercised the greater sentencing discretion that Alaska
law offered to judges in cases involving first felony offenders.
This conclusion is reinforced by the way in which our
Austin cases defined the role of the statutory aggravating
factors in the sentencing of first felony offenders who were not
subject to presumptive sentencing.
As we recently explained in Cleveland v. State, 143
P.3d 977 (Alaska App. 2006), Alaskas pre-March 2005 presumptive
sentencing law was written so that the proof of any single
aggravating factor was sufficient to authorize the sentencing
judge to impose any sentence up to the statutory maximum. But in
our Austin line of cases, we repeatedly declared that the
presence of one or more aggravating factors did not necessarily
mean that the time to serve component of a first felony offenders
sentence could properly exceed the presumptive term that would
apply to a second felony offender.
Even when one or more of the aggravating factors listed
in AS 12.55.155(c) were present, the ultimate question was
whether these statutory aggravating factors showed that the
[first felony offenders] case [was] more serious and therefore
deserving of even greater punishment than the case of a typical
second felony offender committing a typical offense of the same
class. Chrisman, 789 P.2d at 371. Accordingly, under Austin,
the question was not merely the existence of statutory
aggravating factors, but rather the existence of significant
statutor[y] aggravating factors. Copeland v. State, 70 P.3d
1118, 1127 (Alaska App. 2003) (emphasis added), quoting State v.
Jackson, 776 P.2d 320, 326 (Alaska App. 1989).
We addressed this point of law in Petersen v. State,
930 P.2d 414 (Alaska App. 1996):
As this court has repeatedly stated, the
presence of aggravating factors does not
necessarily justify a substantial departure
from the presumptive terms established by the
legislature. By analogy, proof of
aggravating factors does not necessarily call
for a sentence above the limit established in
Austin for a first felony offender ... .
Having found [a statutory] aggravator ... ,
[a sentencing judges] next task [is] to weigh
that factor in light of the sentencing
criteria codified in AS 12.55.005 to
determine whether the presence of the
aggravator show[s] [the defendant] to be an
atypically serious offender or show[s] his
crime to be more serious than a typical
instance of [the charged crime]. See Juneby
v. State, 641 P.2d 823, 833, 835 & n. 21
(Alaska App. 1982), modified on other
grounds, 665 P.2d 30 (Alaska App. 1983) (in
cases governed by presumptive sentencing,
even when aggravating factors are proved, a
sentencing court should be cautious when
making adjustments to the prescribed
presumptive term; any adjustment should be
based on the sentencing criteria established
in State v. Chaney, 477 P.2d 441, 443-44
(Alaska 1970)).
Petersen, 930 P.2d at 439 (citation omitted).
This same rule applies at probation revocation
sentencings under the pre-March 2005 sentencing law.
As we explained above, the Austin rule allowed the
superior court to sentence a first felony offender to a
suspended term of imprisonment that potentially made
the offender subject to a greater sentence than the
presumptive term applicable to a second felony
offender. However, under Austin, if the court later
revoked the defendants probation, the defendant could
properly be ordered to serve the balance of [the]
originally suspended incarceration ... only if
significant aggravating factors or extraordinary
circumstances were found in his case. Espinoza v.
State, 901 P.2d 450, 453 (Alaska App. 1995) (emphasis
added). See also Bland v. State, 846 P.2d 815, 817-18
(Alaska App. 1993), where this Court applied the same
rule to a case where, at the probation revocation
hearing, the defendant rejected continued probation and
demanded that his remaining suspended term of
imprisonment be imposed in its entirety.
Our handling of these two issues allowing single
sentencing judges to find extraordinary circumstances, and
requiring that aggravating factors be significant demonstrates
that the probation revocation rules we announced in Chrisman,
Luepke, and Witt are not formal requirements of Alaskas
sentencing statutes. Rather, these rules are guidelines
guidelines designed to avoid unjustified sentencing disparity in
cases not governed by the presumptive sentencing statutes. And
because the rules announced in Chrisman, Luepke, and Witt are
guidelines, the Blakely right to jury trial does not apply to
them.
This Court has previously held that the Blakely right
to jury trial does not apply to a sentencing judges findings
under such benchmark rules. For instance, in Carlson v. State,
128 P.3d 197, 204-05, 209-211 (Alaska App. 2006), we held that
Blakely does not apply to a judges reasons for exceeding the Page
benchmark sentencing range for second-degree murder. And in
Vandergriff v. State, 125 P.3d 360, 362-63 (Alaska App. 2005), we
held that Blakely does not apply to a judges reasons for imposing
consecutive sentences that total more than the maximum term for
the defendants single most serious offense under the
Neal/Mutschler rule.
We reach the same conclusion here. The Blakely right
to jury trial does not apply to the findings that a judge is
obliged to make under Chrisman, Luepke, and Witt if, when
revoking the probation of a first felony offender, the judge
wishes to impose total time to serve that exceeds the presumptive
term for a second felony offender convicted of the same offense.
Conclusion
We reject Surrellss argument that the
superior court has no authority to impose any of the
remaining 2 years of Surrellss suspended term of
imprisonment (and that, as a consequence, Surrells must
immediately be released from further probation).
Rather, the judgement of the superior court is
AFFIRMED. Surrells remains on probation, and he is
subject to imposition of some or all of the remaining 2
years of suspended jail time if he violates the
conditions of his probation.
_______________________________
1See Gibbs, 105 P.3d at 148.
2AS 11.41.510.
3Former AS 12.55.125(d)(1) (pre-March 2005 version).
4See, e.g., Tyler v. State, 133 P.3d 686, 688-89 (Alaska
App. 2006).
5Tazruk, 655 P.2d at 789.
6Id.
7Id.
8Dayton v. State, 120 P.3d 1073, 1079 (Alaska App. 2005);
State v. Gibbs, 105 P.3d 145, 148 (Alaska App. 2005).
9See SLA 1999, ch. 54, 11.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
