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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| SAUL LOCKUK SR., | ) |
| ) Court of Appeals No. A-9534 | |
| Appellant, | ) Trial Court No. 3DI-01-488 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2090 March 16, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Dillingham, Fred Torrisi,
Judge.
Appearances: David W. Miner, Seattle,
Washington, for the Appellant. Douglas H.
Kossler, 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 2002, Saul Lockuk Sr. was convicted of third-degree
assault. This crime is a class C felony with a maximum sentence
of 5 years imprisonment.1 Because Lockuk was a first felony
offender, his sentencing was governed by former
AS 12.55.125(k)(2). This statute provided that the time to serve
component of Lockuks sentence could not exceed 2 years
imprisonment (the presumptive term that would apply to a second
felony offender convicted of the same offense2) unless the State
proved one or more of the aggravating factors listed in AS
12.55.155(c) or extraordinary circumstances as defined in AS
12.55.165.
In order to justify a sentence of more than 2 years to
serve, the State proposed four aggravating factors: (c)(8) that
Lockuks criminal history included aggravated or repeated
instances of assaultive behavior; (c)(9) that Lockuk knew that
his offense involved more than one victim; (c)(21) that Lockuk
had a history of criminal acts similar in nature to his current
offense; and (c)(28) that Lockuks offense was directed against a
person who had provided testimony or other evidence against
Lockuk in another criminal proceeding.
The States proof of aggravating factors (c)(8) and
(c)(21) rested on the fact that Lockuk had seven prior
convictions for misdemeanor assault, as well as one prior
conviction for resisting arrest.
At Lockuks sentencing hearing, the parties discussed
the States proposed aggravators. Lockuks attorney objected to
aggravators (c)(9) and (c)(28), but he offered no objection to
aggravators (c)(8) and (c)(21) that is, the two aggravators that
were based on Lockuks prior convictions.
Superior Court Judge Fred Torrisi found that the State
had proved three of its four proposed aggravators: (c)(8) (prior
assaultive conduct); (c)(21) (history of similar criminal
offenses); and (c)(28) (offense committed upon a person who had
previously offered evidence against the defendant).
Employing the sentencing authority afforded by these
aggravating factors, Judge Torrisi sentenced Lockuk to 5 years
imprisonment with 1 year suspended (i.e., 4 years to serve).
Lockuks sentencing took place at the end of May 2002.
Two years later, in June 2004, the United States Supreme Court
issued its decision in Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme
Court held that the Sixth Amendment guarantees criminal
defendants the right to jury trial (and the right to demand proof
beyond a reasonable doubt) on any issue of fact other than a
prior conviction which, if resolved against the defendant, would
subject the defendant to a higher maximum sentence than would
otherwise be authorized by the jurys verdict.
In October 2005, Lockuk filed a motion under Alaska
Criminal Rule 35(a), contending that he had been subjected to an
illegal sentence. Lockuks argument was based on Blakely.
Lockuk pointed out that, under former AS
12.55.125(k)(2), the time to serve component of his sentence
would have been limited to 2 years imprisonment if the State had
not proved aggravators. Lockuk then argued that he was denied
his constitutional rights to grand jury indictment, jury trial,
and proof beyond a reasonable doubt because (1) the State raised
these aggravators in a post-trial pleading, rather than
submitting them to a grand jury for inclusion in the indictment;
(2) Judge Torrisi made the rulings on these aggravators himself,
rather than submitting these issues to a jury; and (3) Judge
Torrisi applied a clear and convincing evidence standard of proof
(the standard of proof specified in former AS 12.55.155(f))
rather than employing the beyond a reasonable doubt standard of
proof specified in Blakely.
Lockuk conceded that two of the aggravators, (c)(8) and
(c)(21), were based on his prior criminal convictions and that,
therefore, these two aggravators apparently fell within the
Blakely exception for prior convictions. However, Lockuk argued
that recent federal cases cast doubt on the continuing validity
of Blakelys prior-conviction exception. And Lockuk further
argued that, no matter what federal law might say on this issue,
there was no prior-conviction exception under Alaska law.
The State opposed Lockuks motion. The State took the
position that Blakelys exception for prior convictions was still
good law, that the proof of aggravators (c)(8) and (c)(21) in
Lockuks case rested solely on Lockuks prior criminal convictions,
and that therefore these two aggravators were Blakely-compliant.
After considering these competing arguments, Judge
Torrisi denied Lockuks motion. Lockuk now asks us to reverse
that decision.
Lockuk first argues that all aggravating factors that
can potentially increase a defendants sentence must be deemed
elements of the defendants crime and that, therefore, a
defendant has both a federal constitutional right and an Alaska
constitutional right to grand jury indictment on these
aggravating factors. We recently rejected this contention (under
both federal and state constitutional law) in State v. Dague, 143
P.3d 988, 1007, 1010 (Alaska App. 2006).
Lockuk next addresses the Blakely exception for prior
convictions. As explained above, Lockuk has seven prior
convictions for misdemeanor assault, as well as another
conviction for resisting arrest. These convictions ostensibly
comprise a Blakely-compliant basis for finding aggravator (c)(8)
(history of assaultive conduct) and aggravator (c)(21) (history
of similar offenses). But Lockuk argues that his prior
convictions for assault and resisting arrest can not properly be
used to prove these two aggravators.
Lockuk first contends that, even under the United
States Supreme Courts own decisions on this subject, [t]he prior
conviction exception [first recognized in Almend rez-Torres v.
United States3] is as near to a dead letter as any [doctrine]
that has not been specifically overruled. Lockuk argues that
subsequent decisions of the Supreme Court have essentially
limited Almend rez-Torres to its facts.
We do not agree. First, the prior conviction exception
continues to make sense, even in light of Blakely. We explained
the rationale of the prior conviction exception in Edmonds v.
State, 118 P.3d 17, 20 (Alaska App. 2005):
For [a] defendant to be convicted of [a]
crime ..., one of three things had to happen:
either (1) the defendant exercised their
right to trial by jury, and the jury found
the defendant guilty; or (2) the defendant
was offered a jury trial but waived it,
choosing instead to be tried by a judge, and
the judge found the defendant guilty; or (3)
the defendant was offered a jury trial but
waived trial altogether, choosing instead to
enter a plea of guilty or no contest.
Regardless of how the defendant was found
guilty, the defendants right to jury trial
and the defendants right to proof beyond a
reasonable doubt were both honored and thus
Blakely is satisfied.
Second, as we recently noted in Tyler v. State, 133
P.3d 686 (Alaska App. 2006), even though lawyers and judges might
reasonably dispute the continuing vitality of the prior
conviction exception, the United States Supreme Court has
cautioned lower courts that they should not deviate from Supreme
Court precedent, even when the Supreme Courts later decisions
seemingly invalidate that precedent or call it into question.
Id. at 689-690. Thus, even though there may be reason to doubt
whether the prior conviction exception still commands five votes
among the members of the Supreme Court, [t]his exception
continues to be the law of the land unless and until the United
States Supreme Court expressly abandons or modifies it. Id. at
690.
We have explicitly held that, consistent with Blakely,
a judge imposing a sentence under Alaskas pre-2005 presumptive
sentencing laws could properly rely on a defendants prior
convictions as a basis for finding aggravators (c)(8)4 and
(c)(21)5 at least when the defendant did not dispute the fact of
those convictions, and when the State relied simply on the
convictions themselves and the legal elements of those crimes,
rather than attempting to introduce evidence of the particular
facts underlying the prior convictions.6
Lockuk has never contested (either at his sentencing
hearing, or in his Criminal Rule 35(a) motion in the superior
court, or in his appellate briefs to this Court) that he has
seven prior convictions for assault and one prior conviction for
resisting arrest. Therefore, under this Courts prior decisions on
this topic, Judge Torrisi committed no Blakely error when he
relied on these prior convictions as the basis for finding
aggravating factors (c)(8) and (c)(21).
Lockuk argues in the alternative that, even if an
exception remains under Blakely for a defendants prior
convictions, that exception is limited to situations where the
defendant personally and expressly concedes the existence of the
prior convictions. Thus, even though neither Lockuk nor either
of his lawyers has ever disputed the existence of Lockuks prior
convictions, Lockuk nevertheless contends that Judge Torrisi
committed error under Blakely when he neglected to address Lockuk
personally and obtain Lockuks express concession of those prior
convictions.
To prevail on this point, Lockuk must show that Judge
Torrisis reliance on the undisputed prior convictions constituted
plain error. Lockuks argument rests on a particularly narrow
reading of Almend rez-Torres a reading that conflicts with this
Courts own previous applications of the prior conviction
exception. Whatever might be said in favor of Lockuks legal
argument, it is no more than debatable. This means that Lockuk
can not show plain error for when reasonable judges could differ
as to what the law requires, there is no plain error.7
The same holds true with respect to Lockuks related
argument that, because Lockuks right to jury trial was
potentially involved, Judge Torrisi was required to address
Lockuk personally and obtain his affirmative waiver of the right
to jury trial on the aggravators (even in the absence of any
dispute concerning them).
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. Lockuks case is similar. As
explained above, the States pre-sentencincg memorandum expressly
relied on Lockuks prior convictions as the basis for the States
proposed aggravators (c)(8) and (c)(21). And Lockuks attorney
implicitly conceded the existence of those prior convictions, in
that the defense attorney never offered an opposition to
aggravators (c)(8) and (c)(21), nor did he dispute the existence
of the underlying criminal convictions.
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,8 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, Lockuks position 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.
Thus, Judge Torrisi did not commit plain error when he found
aggravators (c)(8) and (c)(21) without obtaining Lockuks personal
waiver of the right to jury trial.
Moreover, Lockuks claim of plain error fails for
another reason. Lockuk has never disputed that he does, in
fact, have seven prior convictions for assault and one prior
conviction for resisting arrest. In other words, there is no
reasonable possibility that, if aggravators (c)(8) and (c)(21)
had been submitted to a jury, the jury would have found in
Lockuks favor on either aggravator.
We have repeatedly held that, in such circumstances,
any Blakely error in failing to present an aggravator to a jury
is harmless beyond a reasonable doubt and, thus, the error does
not require alteration or vacation of the defendants sentence.9
This rule of harmless error is dispositive of Lockuks claims.
Lockuk argues that any Blakely error is structural.
That is, he argues that the Blakely right to jury trial is so
fundamental that a violation of this right is not subject to a
harmless error analysis, but must instead lead to automatic
reversal. The Supreme Court rejected this contention in
Washington v. Recuenco, 548 U.S. __, 126 S.Ct. 2546, 2553; 165
L.Ed.2d 466 (2006).
Lockuk next argues that even if Blakely recognizes an
exception for aggravators based on a defendants prior
convictions, the Alaska constitutional guarantee of jury trial
also applies to the aggravators listed in AS 12.55.155(c), and
Lockuk further argues that the Alaska Constitution makes no
exception for aggravators based on prior convictions.
Lockuks argument hinges on an expansive interpretation
of the Alaska Supreme Courts decision in Donlun v. State, 527
P.2d 472 (Alaska 1974) an interpretation that runs counter to
the Alaska Supreme Courts later decision in State v. Malloy, 46
P.3d 949 (Alaska 2002). In Malloy, the supreme court rejected
the notion that Donlun required the State to allege aggravating
factors in the indictment and ultimately prove these factors to a
jury. The supreme court stated: Donlun ... recognize[s] that an
increased sentence resulting from a finding of statutory
aggravating circumstances is not a harsher maximum sentence [ and
thus does not trigger a right to jury trial under Donlun].
Malloy, 46 P.3d at 955.
Given the supreme courts decision in Malloy (a decision
which essentially rejected, on state law grounds, the position
that the United States Supreme Court later adopted in Blakely),
it is obvious that Lockuk can not show that the superior court
committed error by failing to recognize, sua sponte, a right to
jury trial under the Alaska Constitution for aggravating factors
much less a right to jury trial that does not include any
exception for aggravators based on prior convictions.
Finally, Lockuk argues that it is inappropriate to
analyze any of his claims under the rubric of plain error.
Lockuk concedes that he never raised any of these claims during
his sentencing proceedings, but he notes that when he finally did
raise these claims (three years later), he raised them in a
motion under Alaska Criminal Rule 35(a). Unlike a petition for
post-conviction relief, which is litigated as a separate civil
case,10 a motion for correction of an illegal sentence under
Criminal Rule 35(a) is treated as part of the defendants original
criminal case. For this reason, Lockuk argues, his claims were
fully presented in the trial court, and thus the very use of the
... plain error doctrine is inappropriate.
Lockuk cites no case law or other legal authority to
support his position. And, in fact, the case law is contrary to
his position.
In two recent published decisions Walsh v. State, 134
P.3d 366, 374 (Alaska App. 2006), and Tyler v. State, 133 P.3d
686, 688 (Alaska App. 2006) this Court employed a plain error
analysis in situations like Lockuks case: instances where
defendants employed a Rule 35(a) motion to litigate Blakely
claims that were not raised at the defendants original sentencing
hearings.
Other states follow this same approach. See State v.
Schroeder, 880 P.2d 192, 207 (Hawaii 1994) (defendants sentence
was properly vacated under Hawaiis equivalent to our Criminal
Rule 35(a) when it was shown that the sentencing court committed
plain error); Miller v. State, 856 So.2d 420, 425 (Miss. App.
2003) (the legality of a sentence is reviewed for plain error),
reversed on other grounds 875 So.2d 194, 200 (Miss. 2004); Taylor
v. State, 995 S.W.2d 78, 84-85 (Tenn. 1999) (a defendant
attacking a sentence under Tennessees equivalent to our Criminal
Rule 35(a) must show that the sentence is void and illegal on its
face i.e., that the sentence is in direct contravention of a
statute [that was] in existence at the time the sentence [was]
imposed); State v. Brooks, 908 P.2d 856, 860 (Utah 1995) (a
sentence can be attacked under Utahs equivalent to our Criminal
Rule 35(a), even though no objection was made at the time the
sentence was imposed, if the sentence is patently illegal); State
v. Scheel, 823 P.2d 470, 474 (Utah App. 1991) (a defendant
attacking a sentence for purported illegality, when no objection
was made at the time, must show plain error).
In other words, even though the law of these states
allows a defendant to petition the trial court at any time to
correct a purportedly illegal sentence, such a defendant faces
the normal procedural hurdles that apply to any claim of error
that was not raised contemporaneously. Regardless of whether the
claim of illegal sentence is raised for the first time on direct
appeal, or in a petition for post-conviction relief, or under a
rule of criminal procedure similar to Alaskas Criminal Rule
35(a), the defendant must show that the illegality of the
sentence is plain.
See also Hamill v. State, 948 P.2d 1356, 1360 (Wyo.
1997), where the court held that even though an illegal sentence
can be corrected at any time under Wyomings equivalent to our
Criminal Rule 35(a), the doctrine of res judicata prohibits a
defendant from filing successive motions for correction of
sentence, each arguing a different theory as to why the sentence
is illegal.
As the Connecticut Court of Appeals explained in State
v. Lawrence, 863 A.2d 235, 238 (Conn. App. 2005), the purpose of
procedural rules like our Criminal Rule 35(a) is to confer
continuing jurisdiction on a sentencing court to correct an
illegal sentence, even if the claimed error was not raised at the
time of sentencing or in the defendants direct appeal. But these
procedural rules are not intended to allow defendants to litigate
claims of sentence illegality on a clean slate, as if no
procedural default had occurred previously.
For these reasons, we reject Lockuks argument that it
is improper to apply a plain error standard of review to his
claims. Rather, we re-affirm the approach that we took in Walsh
and Tyler: when a defendant raises a Blakely claim for the first
time in a motion to correct an illegal sentence under Criminal
Rule 35(a), the defendant must demonstrate plain error.
Here, Lockuk has not shown plain error. As we have
already explained, some of his Blakely claims have no merit at
all. And with respect to Lockuks remaining Blakely claims, any
error is harmless beyond a reasonable doubt under the facts of
Lockuks case. We reach this conclusion for two reasons. First,
we are bound to apply the Blakely exception for prior convictions
unless and until the United States Supreme Court abolishes or
modifies this exception. Second, Lockuk has never disputed the
fact that he has seven prior convictions for assault and one
prior conviction for resisting arrest. Thus, on the record
before us, there is no reasonable possibility that a jury would
find in Lockuks favor on the question of whether he had these
prior convictions, or whether these convictions constituted
instances of assaultive behavior (aggravator (c)(8)), or whether
these convictions constituted instances of criminal behavior
similar in nature to the assault for which he was being sentenced
(aggravator (c)(21)).
For these reasons, the judgement of the superior court
is AFFIRMED.
_______________________________
1See AS 11.41.220(d) (third-degree assault is a class C
felony); AS 12.55.125(e) (pre-2003 version) (providing a maximum
penalty of 5 years imprisonment for class C felonies).
2See former AS 12.55.125(e)(1) (pre-March 2005 version).
3523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
4 Milligrock v. State, 118 P.3d 11, 16 (Alaska App. 2005).
5Grohs v. State, 118 P.3d 1080, 1084 (Alaska App. 2005).
6Grohs, 118 P.3d at 1084.
7See, 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)
8Compare 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.)
9See, e.g., Snelling v. State, 123 P.3d 1096, 1098-99
(Alaska App. 2005); Milligrock v. State, 118 P.3d 11, 17 (Alaska
App. 2005).
10See Hensel v. State, 604 P.2d 222, 230-31 (Alaska 1979);
Plyler v. State, 10 P.3d 1173, 1175 (Alaska App. 2000).
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