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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
| DUANE A. LINSCOTT, | ) |
| ) Court of Appeals No. A-9515 | |
| Appellant, | ) Trial Court No. 3AN-05-1419 Cr |
| ) | |
| v. | ) |
| ) 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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