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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: firstname.lastname@example.org 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|
|) 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. Márquez, 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 Almendárez-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 Almendárez-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 Almendárez-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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