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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
| WILLIAM ROBERT WOODBURY, | ) |
| ) Court of Appeals No. A-9402 | |
| Appellant, | ) Trial Court No. 3PA-04-1355 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) No. 2081 January 26, 2007 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Linda K. Wilson and Morgan
White, Assistant Public Defenders, and
Quinlan Steiner, Public Defender, 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.
MANNHEIMER, Judge.
In 2004, the State charged William Robert Woodbury with
felony driving under the influence and driving while his license
was suspended or revoked.1 These charges were ultimately
resolved with a plea bargain. Under the terms of this plea
bargain, Woodbury agreed to plead no contest to the felony DUI
charge. In addition, Woodbury agreed that he would receive the
maximum term of imprisonment for that offense 5 years, all to
serve and that his vehicle would be forfeited to the State. The
State, for its part, agreed to dismiss the charge of driving with
a suspended or revoked license.
But when the parties appeared in front of Superior
Court Judge Eric Smith for Woodburys change of plea and
sentencing, Judge Smith noted a potential problem with the plea
agreement: Woodbury was a third felony offender convicted of a
class C felony, and he was therefore subject to presumptive
sentencing. Specifically, Woodbury was subject to a 3-year
presumptive term of imprisonment.2 Under Alaskas presumptive
sentencing law (the pre-March 2005 version of that law), the
judge could not sentence Woodbury to the agreed-upon 5-year term
of imprisonment unless the State proved one or more aggravating
factors.
Woodburys case was recessed briefly, and when the
parties again stood in front of Judge Smith, the defense attorney
announced that Woodbury wanted to go forward with the agreement.
Woodbury then told Judge Smith that he had been on mandatory
parole from a prior felony when he committed the present crime.
That is, Woodbury conceded aggravator AS 12.55.155(c)(20) thus
allowing Judge Smith to exceed the 3-year presumptive term and
impose the agreed-upon sentence: 5 years imprisonment.
Woodburys sentencing occurred in August 2004 several
weeks after the United States Supreme Court announced its
decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004). At the time of his sentencing, Woodbury
did not raise any Blakely objection to Judge Smiths finding of
aggravator (c)(20). However, nearly a year later (in July 2005),
Woodbury filed a motion to correct his sentence. In this motion,
Woodbury argued that Judge Smith had abridged his right to trial
by jury when the judge found aggravator (c)(20) based on
Woodburys stipulation that he had been on felony parole at the
time of his offense. As a consequence, Woodbury argued, his
sentence should be reduced to the 3-year presumptive term that
would have been the sentencing ceiling in the absence of
aggravating factors.
In ruling on Woodburys motion, Judge Smith noted that
Woodbury had not raised a Blakely objection at the time of
sentencing. The judge then concluded that any potential
violation of Blakely in Woodburys case would not constitute plain
error.
Judge Smith noted that Woodbury had expressly conceded
aggravator (c)(20) at the sentencing hearing. The judge further
noted that, even after filing the motion to correct his sentence,
Woodbury still did not dispute that he had been on felony parole
at the time he committed the offense. Judge Smith concluded
that, even if this factual question were to be submitted to a
jury, no reasonable jury would find otherwise. For these
reasons, Judge Smith denied Woodburys motion to correct his
sentence.
Woodbury now appeals Judge Smiths ruling.
Woodbury first argues that, because of the decision in
Blakely, all aggravating factors must be deemed elements of the
offense. We recently rejected this argument in State v. Dague,
143 P.3d 988 (Alaska App. 2006).
Woodbury next argues that, whether or not aggravators
are elements of the offense, the Blakely decision requires that
all aggravators be proved to a jury beyond a reasonable doubt.
This assertion is only partially true.
Blakely holds that, generally speaking, a defendant is
entitled to a jury trial on any issue of fact (other than a prior
conviction) which, if found against the defendant, will raise the
defendants potential maximum sentence. But when a defendant
fails to raise a contemporaneous Blakely objection to their
sentencing proceedings, the defendant must demonstrate that the
Blakely flaw amounted to plain error.3
In Woodburys case, it is not evident that his
sentencing was flawed by a Blakely error. Blakely holds that a
sentencing judge can rely on aggravating factors expressly
conceded by the defendant.4 That is what happened here:
Woodbury expressly conceded aggravator (c)(20) that he was on
felony probation or parole at the time of his present offense.
Woodbury argues that he should not be held to his
concession. He argues that when he stipulated to aggravator
(c)(20), he was essentially waiving his right to jury trial on
this aggravator. Accordingly, Woodbury contends, Judge Smith was
obliged to formally advise Woodbury of his right to jury trial,
and to have Woodbury formally waive that right, before the judge
could accept Woodburys concession of aggravator (c)(20).
There is some case law to support this argument.5 But
many courts have rejected this attempt to draw a strict
equivalence between the Blakely right to jury trial on sentencing
factors and the general right to trial by jury on the underlying
offense. These courts have held that, under Blakely, a
defendants express admissions (even statements made by the
defendant during the discussion of the proposed plea), as well as
a defendants implied admissions (for example, the defendants
failure to object to statements in the pre-sentence report) can
properly be relied on by a sentencing judge when finding
aggravating factors.6 And because courts are split on this
issue, Woodbury can not show that Judge Smith committed plain
error when he accepted Woodburys concession of aggravator
(c)(20).
As this Court has repeatedly explained, an error is
plain only if the error is so obvious that any reasonable judge
would have perceived the error and taken action to correct it.7
For this reason, a claim of plain error fails if reasonable
judges could differ as to what the law requires.8 Given the
state of the law when Woodbury was sentenced indeed, given the
state of the law today Judge Smith did not commit plain error
when he relied on an aggravator that Woodbury expressly conceded.
Moreover, as Judge Smith noted when he denied Woodburys
motion to correct the sentence, Woodbury has never disputed the
fact that he was on felony parole at the time he committed the
present offense. We have repeatedly held that a Blakely error is
harmless if the underlying facts are not in dispute so that,
even if the factual issue were to be presented to a jury, there
is no reasonable possibility that a jury would find in the
defendants favor.9 Thus, in Tyler v. State, we held that any
Blakely error with respect to aggravator (c)(20) was harmless
beyond a reasonable doubt, given the fact that the defendant did
not dispute that he was on felony parole or probation at the time
of his offense.10
In Woodburys brief to this Court, his attorneys suggest
that Woodbury did not really concede that he was on felony parole
at the time of his offense. According to Woodburys attorneys,
Woodbury merely told Judge Smith that he had been on parole at
some prior, unspecified time. This argument completely ignores
the context in which Woodbury spoke to Judge Smith.
As explained above, Woodburys plea bargain with the
State came up against an unforeseen obstacle when Judge Smith
pointed out that the agreed-upon sentence 5 years to serve was
legally impossible unless one or more aggravating factors were
proved. The parties took some time to confer, and when they
returned to court, Woodbury announced, I was on mandatory parole.
His attorney then said, He was on parole.
It is true that Woodbury never uttered the words at the
time of this offense, nor did he specify that his parole was for
a felony that qualified as a prior felony for purposes of
presumptive sentencing as defined in AS 12.55.145(a)(1)(B). But
in context, it is clear that Woodbury and his attorney were
asserting that the plea agreement could go forward because
aggravator (c)(20) was present i.e., the contemplated 5-year
sentence could lawfully be imposed because, at the time of
Woodburys offense, he was on felony parole.
If Woodbury wished to retract or modify this
concession, he had the opportunity to do so when he filed his
extensive motion to correct his sentence. But as Judge Smith
pointed out, Woodbury never suggested that he really had not been
on felony parole at the time of his offense. Thus, any Blakely
error was harmless beyond a reasonable doubt.
In addition to the points we have already discussed,
there is one more reason why any potential Blakely error in
Woodburys sentencing proceedings would not be plain error: these
proceedings involved a plea bargain.
Woodburys 5-year sentence was an element of a plea
bargain that he negotiated with the State. In his motion to
correct his sentence, Woodbury asked Judge Smith (1) to hold the
State to its side of the bargain, but at the same time (2) to
reduce Woodburys agreed-upon sentence from 5 years down to 3
years.
To prove plain error, a defendant must show that the
error was so prejudicial to the fairness of the proceedings that
failure to correct it would perpetuate manifest injustice.11
Here, if Judge Smith had granted Woodburys motion to correct his
sentence, this would have created injustice, not cured it.
When, as in Woodburys case, a defendant wishes to
challenge an already consummated plea agreement as being
unlawful, the defendant must seek rescission of the agreement
not selective enforcement of only those provisions favorable to
the defendant. We addressed a similar situation in Grasser v.
State, 119 P.3d 1016 (Alaska App. 2005):
If Grasser now believes that he agreed to an
illegal procedure or an illegal sentence when
he negotiated his plea bargain with the
State, his proper course of action is to ask
the [trial] court to allow him to withdraw
his pleas (i.e., rescind the plea bargain).
Because Grasser negotiated a plea agreement
with the government, and because he was
sentenced under the terms of that agreement,
Grasser can not now claim the benefit of the
portions of the agreement that he likes
while, at the same time, mounting an
appellate attack on the portions that he does
not like.
Grasser, 119 P.3d at 1018.
For all of these reasons, we
conclude that the superior court correctly
denied Woodburys motion to correct his
sentence. The judgement of the superior
court is AFFIRMED.
_______________________________
1AS 28.35.030(n) and AS 28.15.291(a), respectively.
2Former AS 12.55.125(e)(2) (pre-March 2005 version).
3See Tyler v. State, 133 P.3d 686, 688 (Alaska App. 2006);
Haag v. State, 117 P.3d 775, 783 (Alaska App. 2005); Paige v.
State, 115 P.3d 1244, 1248 (Alaska App. 2005).
4Blakely v. Washington, 542 U.S. 296, 303; 124 S.Ct. 2531,
2537; 159 L.Ed.2d 403 (2004).
5See State v. Barker, 705 N.W.2d 768, 773-74 (Minn. 2005).
6See Chupp v. State, 830 N.E.2d 119, 126 n.12 (Ind. App.
2005); State v. Leake, 699 N.W.2d 312, 324-25 (Minn. 2005); State
v. Miranda-Cabrera, 99 P.3d 35, 41-42 (Ariz. App. 2004).
7See, e.g., Massey v. State, 771 P.2d 448, 453 (Alaska App.
1989); Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983);
Marrone v. State, 653 P.2d 672, 675-76 (Alaska App. 1982).
8Heaps v. State, 30 P.3d 109, 116 (Alaska App. 2001); Hansen
v. State, 845 P.2d 449, 457 (Alaska App. 1993); Marrone v. State,
653 P.2d 672, 676 (Alaska App. 1982).
9Tyler 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).
10Tyler, 133 P.3d at 689.
11Hosier v. State, 1 P.3d 107, 112 n. 11 (Alaska App. 2000);
Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985).
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