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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
| JEREMY L. COOPER, | ) |
| ) Court of Appeals No. A-9426 | |
| Appellant, | ) Trial Court No. 3KN-03-1984 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2087 March 9, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kenai, Harold M. Brown, Judge.
Appearances: Dan S. Bair, Assistant Public
Advocate, and Chad W. Holt, Supervising
Assistant Public Advocate, Anchorage, for the
Appellant. Tamara E. de Lucia, 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.
Jeremy L. Cooper was convicted of first-degree robbery
and second-degree assault. Cooper was a second felony offender,
having previously been convicted of third-degree assault. As a
consequence of this prior felony conviction, Cooper faced a 10-
year presumptive term of imprisonment for the first-degree
robbery conviction and a 4-year presumptive term of imprisonment
for the second-degree assault conviction (under Alaskas pre-March
2005 presumptive sentencing law).1
The State alleged one aggravating factor under AS
12.55.155(c): (c)(20) that Cooper had been on felony probation
or parole (from his prior conviction for third-degree assault) at
the time he committed his present crimes.
Even though Coopers sentencing proceedings took place
in the summer of 2005 i.e., long after the United States Supreme
Court decided Blakely v. Washington2 Cooper did not contest the
States proposed aggravator, nor did he ask the superior court to
schedule a jury trial on this aggravator.
In Coopers pre-sentencing brief (which was filed in May
2005), his attorney conceded this aggravator. In fact, Coopers
attorney pointed out that, based on Coopers commission of the two
new felonies, the superior court had already found that Cooper
had violated the conditions of his probation from the prior
felony. And at Coopers sentencing hearing, his attorney
expressly told Superior Court Judge Harold M. Brown that Cooper
was willing to stipulate that aggravator (c)(20) was proved:
The Court [to the defense attorney]: If
I read your sentencing brief correctly, you
are willing to stipulate to the existence of
aggravator [(c)](20) ... , that [Cooper] was
... on parole or probation for another felony
charge specifically, his prior conviction
for assault in the third degree.
Defense Attorney: That is correct, Your
Honor.
Based on this aggravating factor,
Judge Brown added 3 years of suspended
imprisonment to Coopers 10-year presumptive
term for the robbery conviction; that is,
Judge Brown sentenced Cooper to 13 years with
3 years suspended. Judge Brown did not
increase Coopers 4-year presumptive term for
the second-degree assault conviction;
moreover, the judge imposed this 4-year term
of imprisonment concurrent to Coopers robbery
sentence.
On appeal, Cooper contends that
Judge Brown committed plain error under
Blakely when the judge accepted the defense
attorneys concession of aggravator (c)(20),
rather than addressing Cooper himself and
asking Cooper whether he, personally, was
willing to waive his right to jury trial on
this aggravator. Cooper concedes that he did
not raise this claim in the superior court,
and that he therefore must show plain error
on appeal.
In Paige v. State, 115 P.3d 1244,
1248 (Alaska App. 2005), a case that dealt
with a pre-Blakely sentencing, we held that
the sentencing judge did not commit plain
error under Blakely when the judge relied on
an aggravating factor that the defense
attorney conceded. Coopers sentencing
occurred after Blakely, but we reach the same
conclusion: Judge Brown did not commit plain
error when he relied on the defense attorneys
concession of aggravator (c)(20).
Even though one might reasonably
argue that, after Blakely, a sentencing judge
must personally address the defendant and
obtain a knowing waiver of the right to jury
trial,3 this is only one potential resolution
of the issue. Several courts have rejected
this argument. See Chupp v. State, 830
N.E.2d 119, 126 n. 12 (Ind. App. 2005) (a
defendants failure to object to information
contained in the pre-sentence report is
tantamount to an admission [of] the accuracy
of the facts contained therein for purposes
of Blakely); Caron v. State, 824 N.E.2d 745,
755 (Ind. App. 2005) (there was no Blakely
error when the defense attorney acknowledged
the accuracy of pertinent information recited
in the pre-sentence report); Trusley v.
State, 829 N.E.2d 923, 925-26 (Ind. 2005)
(holding that the defense attorneys statement
during the plea colloquy constituted an
admission of fact relevant to the sentence
enhancement); State v. Leake, 699 N.W.2d 312,
324-25 (Minn. 2005) (the sentencing judge did
not violate Blakely by relying on facts
admitted by the defendant as part of a plea
agreement); State v. Miranda-Cabrera, 99 P.3d
35, 41-42 (Ariz. App. 2004) (holding that a
defendants admissions at trial were
admissions of fact for purposes of Blakely).
Thus, Coopers position in this
appeal is no more than debatable. Reasonable
judges could differ as to whether a
sentencing judge must obtain the defendants
personal waiver of the right to jury trial
with regard to aggravating factors when the
existence of those aggravators is expressly
conceded, or when the existence of the
aggravators is plain from the record and is
not disputed. And because reasonable judges
could differ as to what the law requires in
this situation, Judge Brown did not commit
plain error when he relied on the defense
attorneys concession of aggravator (c)(20).4
Moreover, Coopers claim of plain
error fails for another reason. Cooper has
never disputed that he was, in fact, on
felony probation and/or parole at the time he
committed the offenses in this case. In
other words, there is no reasonable
possibility that, if aggravator (c)(20) had
been submitted to a jury, the jury would have
found in Coopers favor on this issue.
In Snelling v. State, 123 P.3d
1096, 1098-99 (Alaska App. 2005), we held
that, in such circumstances, any Blakely
error in failing to present aggravator
(c)(20) to a jury is harmless beyond a
reasonable doubt, and thus the error does not
require alteration or vacation of the
defendants sentence. Our decision in
Snelling is dispositive of Coopers claim.
The judgement of the superior court
is AFFIRMED.
_______________________________
1See AS 11.41.500(b) (first-degree robbery is a class A
felony); former AS 12.55.125(c)(3) (pre-March 2005 version)
(specifying a 10-year presumptive term for second felony
offenders convicted of a class A felony); AS 11.41.210(b) (second-
degree assault is a class B felony); former AS 12.55.125(d)(1)
(pre-March 2005 version) (specifying a 4-year presumptive term
for second felony offenders convicted of a class B felony).
2542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
3Compare McGlauflin v. State, 857 P.2d 366, 369 (Alaska App.
1993) (It may seem natural to assume that a defendant
would make a decision of this importance only after
consulting with defense counsel, and that any competent
defense attorney would carefully explain the right to
jury trial and the reasons why, in a particular case,
it might further the defendants interests to waive this
right. Nevertheless, ... the rule [in Alaska is] that
a defendants waiver of jury trial cannot be upheld upon
such an assumption; instead, the record must explicitly
demonstrate that the defendant understood and
personally relinquished the right to trial by jury.)
4See, e.g., Simon v. State, 121 P.3d 815, 820 (Alaska App.
2005): To be plain error, an error must be so obvious
that any competent judge or attorney would have
recognized it. If a claim of error is reasonably
debatable if reasonable judges could differ on what
the law requires then a claim of plain error fails.
(Footnotes omitted)
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