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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
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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
| STEVEN A. BILLUM, | ) |
| ) Court of Appeals No. A-9004 | |
| Appellant, | ) Trial Court No. 3VA-94-27 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2079 December 22, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Valdez, Donald D. Hopwood,
Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and Quinlan Steiner and
Barbara K. Brink, Public Defenders,
Anchorage, 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.
STEWART, Judge.
In February 1994, Steven A. Billum drove while he was
intoxicated, caused an accident, and injured four people. For
this conduct, Billum was convicted of four felonies: three
counts of first-degree assault (for seriously injuring three
people) and one count of third-degree assault (for injuring the
fourth person).1 In addition, Billum was convicted on a plea of
no contest of misdemeanor driving while intoxicated and driving
while his license was suspended or revoked.2
As a first felony offender, Billum faced a presumptive
term of 5 years imprisonment on each of the three counts of first-
degree assault (a class A felony).3 Based in part on evidence
that Billum had been explicitly warned not to drive, Billums
sentencing judge, Superior Court Judge Glen C. Anderson, found
that the State had proved one aggravating factor, AS
12.55.155(c)(10) (Billums conduct was among the most serious
within the definition of first-degree assault). The presence of
this aggravating factor authorized Judge Anderson to exceed the 5-
year presumptive term and impose any sentence up to the 20-year
maximum term for a class A felony.4
Based on the aggravating factor, Judge Anderson
increased Billums sentence on one count of first-degree assault
by adding 5 suspended years of imprisonment; that is, Judge
Anderson sentenced Billum to 10 years with 5 years suspended on
this count. On the remaining two counts of first-degree assault,
Judge Anderson sentenced Billum to the unadjusted presumptive
term of years. Finally, the judge sentenced Billum to 2 years
with 1 year suspended on the third-degree assault conviction.
The judge ran all four sentences concurrently. Thus, Billums
composite sentence on these four counts was the same as his
sentence on Count I: 10 years with 5 years suspended.
Billum appealed his convictions which we affirmed in
Billum v. State,5 but he did not appeal his sentence. However,
after the United States Supreme Court issued its decision in
Blakely v. Washington,6 Billum filed a motion under Alaska
Criminal Rule 35(a), seeking a correction of his sentence.
In this motion, Billum argued that he had been denied
his Sixth Amendment right to jury trial (as interpreted in
Blakely) because Judge Anderson had decided aggravator (c)(10) by
himself, rather than submitting the aggravator to a jury, and
because Judge Anderson had employed the clear and convincing
evidence standard of proof specified by Alaskas presumptive
sentencing law,7 rather than the beyond a reasonable doubt
standard required by Blakely.
Because Judge Anderson had retired in the interim,
Billums motion was assigned to Superior Court Judge Donald D.
Hopwood. Judge Hopwood ruled that defendants could not use
Criminal Rule 35(a) to attack their sentences based on Blakely
violations. He further ruled that the Blakely right to jury
trial was not retroactive that is, it did not apply to
defendants whose convictions were already final when Blakely was
decided. Accordingly, Judge Hopwood denied Billums motion.
Since the time that Judge Hopwood issued his decision,
we held in Walsh v. State8 that Criminal Rule 35(a) is a proper
procedural vehicle for raising a Blakely attack on a sentence.9
We have also held in Smart v. State10 that the Blakely right to
jury trial is retroactive under Alaska law.11 Thus, the superior
court should have reached the merits of Billums Criminal Rule
35(a) motion.
However, in Washington v. Recuenco,12 the United States
Supreme Court held that a Blakely error will not require reversal
of a defendants sentence if the error is shown to be harmless
beyond a reasonable doubt.13 In Billums case, even though it may
have been error for Judge Anderson to find aggravator (c)(10)
without submitting this issue to a jury, the record shows that
this error was harmless beyond a reasonable doubt.
The transcript of Billums original sentencing hearing
demonstrates that Judge Anderson consciously structured Billums
three first-degree assault sentences to achieve a composite
result 10 years with 5 years suspended. Judge Anderson
concluded that the time to serve component of Billums sentence
did not need to exceed the 5-year presumptive term, but the judge
added a 5-year suspended term of imprisonment to deter Billum
from future misconduct.
Judge Anderson elected to reach this composite sentence
by using aggravator (c)(10) to add 5 suspended years of
imprisonment to Billums sentence on Count I, and then running
Billums two other first-degree assault sentences concurrently.
However, Judge Anderson could just as easily have reached the
same composite sentence without resort to aggravating factors and
sentence enhancements.
Billum faced a 5-year presumptive term on each of his
three convictions for first-degree assault. Judge Anderson had
the authority to impose these three presumptive terms
concurrently, consecutively, or partially consecutively.14 And we
have held that the Blakely right to jury trial does not extend to
a judges decision to impose sentences consecutively (as opposed
to concurrently).15
Thus, Billums sentencing was governed by the
interpretation of the presumptive sentencing law that this Court
announced in Griffith v. State.16 In Griffith, we held that if a
judge is sentencing a defendant for two or more offenses governed
by presumptive sentencing (i.e., offenses that each carry a
presumptive term of imprisonment), and if the judge has the
discretion to impose the defendants sentences either
consecutively or concurrently, then the judge also has the
authority to impose these presumptive terms consecutively but to
suspend some or all of the presumptive terms so long as the time
to serve component of the defendants composite sentence is at
least as great as the single longest presumptive term to which
the defendant is subject.17
Applying this rule to Billums case, Judge Anderson had
the authority even in the absence of aggravating factors to
impose the 5-year presumptive term on each of Billums three
convictions for first-degree assault, and to order that one of
these presumptive terms would run consecutively to the other two,
and then to suspend this consecutive 5-year term.
The resulting composite sentence is the same one that
Billum received: 10 years with 5 years suspended. The
difference is that, configured in this manner, Judge Andersons
authority to impose this composite sentence does not depend on
the existence of aggravating factors or any other issue of fact
governed by Blakely.
The sentencing record shows that Judge Anderson did not
concentrate on Billums individual sentences for the three counts
of first-degree assault. Rather, he focused on achieving a
composite sentence of 10 years with 5 years suspended. It is
wholly fortuitous that Judge Anderson chose to achieve this
composite sentence by adding 5 suspended years of imprisonment to
Count I, rather than imposing a consecutive 5-year sentence on
either Count II or Count III and then suspending this consecutive
sentence.18
If we were not completely convinced of Judge Andersons
intention to create a certain composite sentence, we would remand
for resentencing. However, in this case, the record is clear.
Under Griffith, Judge Anderson had the authority to impose this
same composite term without relying on aggravating factors, so
any Blakely error with respect to aggravator (c)(10) is harmless
beyond a reasonable doubt.19
However, if Billum wishes, he is technically entitled
to have his judgment amended. Currently, the judgment states
that Billum received a sentence of 10 years with 5 years
suspended on Count I, and that he received concurrent 5-year
terms on Counts II and III. As we have explained here, Billum is
entitled to have the judgment rewritten so that it reflects the
imposition of the unadjusted 5-year presumptive term on all three
counts, with the 5-year sentence on either Count II or Count III
running consecutively to the sentences on the other two counts,
and with this consecutive sentence suspended.
Conclusion
The judgment of the superior court is AFFIRMED, subject
to Billums right to seek amendment of the written judgment as
explained in the preceding paragraph.
_______________________________
1 AS 11.41.200(a) and 11.41.220(a), respectively.
2 Former AS 28.35.030(a) and AS 28.15.291(a), respectively.
3 Former AS 12.55.125(c)(1) (pre-March 2005 version), as
interpreted in Pruett v. State, 742 P.2d 257, 263 (Alaska App.
1987).
4 Former AS 12.55.155(a)(2) (pre-March 2005 version).
5 Alaska App. Memorandum Opinion and Judgment No. 3381 (Apr.
24, 1996), 1996 WL 341792.
6 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
7 Former AS 12.55.155(f) (pre-March 2005 version).
8 134 P.3d 366 (Alaska App. 2006).
9 Id. at 373-74.
10 __ P.3d __, Alaska App. Opinion No. 2070 (Oct. 27, 2006),
2006 WL 3042821.
11 Id. at 3, 2006 WL 3042821 at *1.
12 __ U.S. __, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
13 Id., ___ U.S. at ___, 126 S. Ct. at 2252-53.
14 Former AS 12.55.025(e) and (g) (pre-March 2005 versions).
15 Vandergriff v. State, 125 P.3d 360, 363 (Alaska App.
2005).
16 675 P.2d 662 (Alaska App. 1984).
17 Id. at 665.
18 See Allain v. State, 810 P.2d 1019, 1022 (Alaska App.
1991).
19 Id.
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