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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
|DUANE A. LINSCOTT,||)|
|) Court of Appeals No. A-9515|
|Appellant,||) Trial Court No. 3AN-05-1419 Cr|
|) O P I N I O N|
|STATE OF ALASKA,||)|
|Appellee.||) No. 2100 May 18, 2007|
Appeal from the Superior Court, Third Judi cial District, Anchorage, Michael L. Wolverton, Judge. Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, 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. In 2005, Duane A. Linscott was convicted of first- degree burglary (burglary of a dwelling), second-degree theft (for taking property valued at approximately $1000 from the dwelling), and contributing to the delinquency of a minor (for enlisting a minor to help him carry out the burglary).1 At the time of this burglary, Linscott was on probation from a prior burglary conviction. Based on Linscotts status as a second felony offender, he faced a 4-year presumptive term of imprisonment for the burglary and a 2-year presumptive term for the theft.2 The State proposed one aggravating factor: AS 12.55.155(c)(20) that Linscott was on felony probation at the time of these offenses. Linscott proposed two mitigating factors: AS 12.55.155(d)(4) that Linscott was a youthful offender whose criminal conduct was substantially influenced by another person of greater maturity; and AS 12.55.155(d)(9) (which has since been renumbered (d)(8)) that Linscotts conduct was among the least serious within the definitions of first-degree burglary and second-degree theft. Superior Court Judge Michael L. Wolverton found that the State had proved aggravator (c)(20) and that Linscott had failed to prove his proposed mitigators. Based on the aggravating factor, Judge Wolverton increased Linscotts burglary sentence to 6 years with 2 years suspended (i.e., he added 2 suspended years of imprisonment to the 4-year presumptive term). However, the judge did not increase Linscotts theft sentence; he simply imposed the 2-year presumptive term and he made this sentence concurrent with Linscotts burglary sentence. (Judge Wolverton also sentenced Linscott to 1 year of suspended imprisonment for the misdemeanor of contributing to the delinquency of a minor.) In this appeal, Linscott argues that Judge Wolverton violated his Sixth Amendment right to jury trial, as interpreted in Blakely v. Washington,3 when the judge failed to submit aggravator (c)(20) to a jury. Linscott further argues that Judge Wolverton committed error when he found that Linscott had failed to prove mitigator (d)(9) (conduct among the least serious within the definition of the offense). Linscotts Blakely claim Linscott has never disputed that, as a factual matter, he was on felony probation at the time he committed his current offenses. However, in the sentencing proceedings in this case, Linscott argued that, under Blakely, Judge Wolverton was obliged to submit aggravator (c)(20) to a jury rather than decide this matter himself. The State, in response, took the position that aggravator (c)(20) was covered by the Blakely exception for prior offenses, and thus a sentencing judge could decide this aggravator without submitting the question to a jury. Judge Wolverton never explicitly ruled on this question of law. He simply announced, Im going to find the aggravator. On appeal, Linscott renews his argument that, under Blakely, he was entitled to have a jury decide whether he was on felony probation at the time of his current offenses. We need not decide this issue because, under the facts of this case, any Blakely error was harmless beyond a reasonable doubt. We reach this conclusion because Judge Wolverton could have imposed the same composite sentence without increasing Linscotts burglary sentence above the 4-year presumptive term. As explained above, Judge Wolverton sentenced Linscott to 6 years with 2 years suspended for the burglary, and he imposed a concurrent sentence of 2 years to serve for the theft. Thus, Linscotts composite sentence for these two offenses is 6 years with 2 years suspended. Even in the absence of aggravating factors, Judge Wolverton could have imposed this same composite sentence by imposing the 4-year presumptive term for burglary and the 2-year presumptive term for theft, but suspending the 2-year theft sentence and imposing this theft sentence consecutively instead of concurrently. We note that, when Judge Wolverton sentenced Linscott, he declared that he would have imposed the same composite sentence even if the presumptive sentencing law had not governed Linscotts sentencing. It therefore appears that Judge Wolverton structured the two sentences to achieve a particular composite sentence, rather than concentrating on the individual sentences for Linscotts separate crimes. Recently, in Billum v. State, 151 P.3d 507 (Alaska App. 2006), we held that a Blakely error was harmless under analogous circumstances that is, where (1) the defendant was being sentenced for more than one crime, (2) the sentencing judge structured the defendants individual sentences to achieve a particular composite term of imprisonment, and (3) the judge could have imposed that same composite term without relying on aggravating factors (i.e., without increasing any of the defendants presumptive terms of imprisonment). Id., 151 P.3d at 509-510. Applying our holding in Billum to Linscotts case, we conclude that any Blakely error in Linscotts case was harmless. Linscotts argument that Judge Wolverton should have found mitigator (d)(9) At Linscotts sentencing, in support of proposed mitigator (d)(9), the defense attorney argued that Linscotts burglary and theft were not as serious as the State portrayed them. In particular, the defense attorney attacked the States contention that Linscotts crimes had affected two victims. Even though the defense attorney conceded that Linscott stole property belonging to both the homeowner and her minor son, the defense attorney argued that the son should not really be considered a victim because, according to the sons testimony, he no longer used the item of property stolen from him (a viola). Even assuming that the homeowners son was no longer using the viola, we conclude that this fact does not place Linscotts burglary and theft among the least serious.4 In Linscotts brief to this Court, he points to several other factors that arguably make Linscotts crimes less serious. In particular, Linscott argues that (1) the burglary occurred during the daytime, (2) the residents of the dwelling were not home, (3) no damage was done to the residence, (4) the value of the property stolen during the burglary (approximately $1000) was toward the low end of the range for second- degree theft ($500 to $25,000),5 (5) the stolen property was quickly recovered, and (6) the burglary and theft were unsophisticated. Whatever may be the merit of these arguments, they are not properly before us because none of these arguments were presented to Judge Wolverton. It is true that, once the facts of a case are established, the existence (or non-existence) of the conduct among the least serious mitigating factor is a question of law.6 Thus, to the extent that Linscotts current arguments rest on facts that are undisputed, one might argue that this Court should independently evaluate Linscotts arguments and re-determine whether the mitigator was proved. This is, in fact, the approach we would take if the superior court had decided the mitigator in Linscotts favor, and Linscott were defending the superior courts ruling because this Court is authorized to affirm the decision of a lower court on any ground revealed by the record.7 But the superior court concluded that Linscott had failed to prove the proposed mitigator, and Linscott is attacking the superior courts ruling. Under these circumstances, Linscott is not allowed to use the appeal process as a forum for raising new theories as to why mitigator (d)(9) might be found under the facts of his case. Although we have never had occasion to apply this principle to mitigating factors, both this Court and the Alaska Supreme Court have applied this principle to analogous situations in the past. For instance, when a trial judge excludes evidence offered by the defense, the defendant may not argue a different theory of admissibility on appeal.8 Similarly, when a defendant objects to the governments evidence on a particular ground, but the trial judge nevertheless admits the evidence, the defendant may not argue a different evidentiary objection on appeal.9 We have also held that when a defendant objects to a jury instruction at trial, and the judge overrules the defendants objection, the defendant can not rely on new grounds when arguing on appeal that the jury instruc tion was improper.10 Applying this same principle, we hold that Linscott is not permitted to rely on new theories as to why Judge Wolverton should have found that his conduct was among the least serious. Conclusion The superior courts sentencing decision is AFFIRMED. _______________________________ 1AS 11.46.300(a)(1), AS 11.46.130(a)(1), and AS 11.51.130(a)(1), respectively. 2See former AS 12.55.125(d) and 125(e) (pre-March 2005 versions). 3542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). 4See Michael v. State, 115 P.3d 517, 519-520 (Alaska 2005) (holding that it is a question of law i.e., a question to be decided by an appellate court without deference to the sentencing judge whether given facts establish the mitigator of conduct among the least serious). 5See AS 11.46.130(a)(1). 6Michael v. State, 115 P.3d 517, 519-520 (Alaska 2005). 7See Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994); Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992); Russell v. Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981). 8Jones v. State, 576 P.2d 997, 1000-01 (Alaska 1978); Dyer v. State, 666 P.2d 438, 450-51 (Alaska App. 1983). 9Deal v. State, 626 P.2d 1073, 1077-78 (Alaska 1980); Post v. State, 580 P.2d 304, 308 (Alaska 1978). 10Ladd v. State, 568 P.2d 960, 967-68 (Alaska 1977); Williams v. State, 648 P.2d 603, 608 (Alaska App. 1982).
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