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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MATTHEW MARK MOORE, | ) |
| ) Court of Appeals No. A-9691 | |
| Appellant, | ) Trial Court No. 2NO-02-454 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2143 January 18, 2008 |
| ) | |
Appeal from the Superior Court, Second Judi
cial District, Nome, Ben J. Esch, Judge.
Appearances: Averil Lerman and Dan Bair,
Assistant Public Advocates, and Joshua P.
Fink, Public Advocate, Anchorage, for the
Appellant. Daine L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
In Moore v. State, 123 P.3d 1081 (Alaska App. 2005), we
affirmed Matthew Mark Moores convictions for attempted first-
degree sexual assault, attempted second-degree sexual assault and
first-degree burglary,1 but we held that under the rule in
Whitton v. State,2 Moores convictions for attempted first- and
attempted second-degree sexual assault must merge.3
We rejected Moores claims regarding his sentence,
except for his claim that the record did not support statutory
aggravating factor AS 12.55.155(c)(8) (Moores criminal history
includes conduct involving aggravated or repeated instances of
assaultive behavior) because the record did not show that Moore
had a criminal history of repeated instances of assaultive
conduct. Because the superior court was required to resentence
Moore, we left that issue for the superior court to address at
resentencing.4
At resentencing, Moore conceded that he had two
juvenile adjudications for assault. The superior court found
that aggravator (c)(8) applied. Originally, Superior Court Judge
Ben J. Esch sentenced Moore to a composite term of 12 years with
4 suspended. At Moores resentencing, Judge Esch imposed an 8-
year term with 3 years suspended for attempted first-degree
sexual assault. (The conviction for attempted second-degree
assault merged with this count.) Judge Esch imposed a 2-year
term for first-degree burglary with 1 year of that term
consecutive to attempted first-degree sexual assault. Thus,
Moore received a composite 9-year term with 3 years suspended.
We discussed the facts of Moores case in the earlier opinion and
will not repeat them here. Moore appeals.
Moores attack on the superior courts finding that
aggravator (c)(8) applied
Moore advances several attacks on the superior courts
finding of the (c)(8) aggravator. For the most part, Moore
raises arguments that could have been raised in his first appeal
or that were resolved by that opinion.5
In the first appeal, Moore argued that the sentence for
attempted first-degree sexual assault was excessive, that the two
sexual assault charges should have merged at sentencing, and that
the court erroneously failed to find a statutory mitigating
factor. Moore also claimed that Judge Esch increased his
sentence based on finding a statutory aggravating factor in
violation of Blakely v. Washington.6 Finally, Moore contended
that the composite sentence he received was excessive. We agreed
with Moore that merger was required, but rejected Moores other
claims with the exception of the issue of whether there was an
evidentiary basis for aggravator (c)(8) that complied with
Blakely.
Moore argues that the superior court could not rely on
his juvenile adjudication for conduct that constituted third-
degree assault because that adjudication was ultimately vacated.
However, the Alaska Supreme Court in Berfield v. State7 ruled
that, while a defendants juvenile history cannot be used to
impose a mandatory sentence, that history is relevant information
about a defendants life, characteristics, background and behavior
before the age of 18.8 Under Berfield, the conduct underlying
Moores adjudication for third-degree assault was pertinent
information for sentencing purposes. Consistent with Blakely,
Moore had the right to demand that the State prove the conduct
alleged in the delinquency petition to a jury beyond a reasonable
doubt.9
Moore recognizes that an adult conviction that has been
set aside may be used as a basis for an aggravating factor.10 But
Moore argues that a vacated adjudication should not be used to
support aggravator (c)(8) because of differences between a
juvenile proceeding and an adult criminal case. But as the
supreme court indicated in Berfield, a defendants conduct as a
juvenile is relevant for sentencing purposes. And a juvenile
adjudication in Alaska contains the hallmarks that satisfy
Blakely the right to a jury trial and the States burden to prove
the delinquency petition beyond a reasonable doubt. Moreover,
Judge Esch ruled that the important issue in Moores case was not
that Moore had two juvenile adjudications for assault, but was
whether, consistent with the requirements of Blakely, each of
Moores adjudications established, beyond a reasonable doubt, that
Moore had engaged in repeated instances of assaultive behavior.
Moore contends that AS 47.12.180(a) bars the use of a
juvenile adjudication as a prior criminal conviction. But Judge
Esch did not use Moores history of juvenile adjudications to
establish that he had prior criminal convictions. Aggravator
(c)(8) does not require proof of a conviction but is established
by proof of aggravated or repeated instances of assaultive
behavior. The State could have proven repeated instances of
assaultive behavior whether or not Moore had been adjudicated a
delinquent. But the two juvenile adjudications that Moore
conceded at trial established, consistent with Blakely, that
Moore had a history of repeated instances of assaultive behavior.
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
In Moore v. State, 123 P.3d 1081 (Alaska App. 2005), we
affirmed Matthew Mark Moores convictions for attempted first-
degree sexual assault and first-degree burglary,1 but we directed
the superior court to reconsider whether the evidence supported a
finding of aggravating factor AS 12.55.155(c)(8) i.e., whether
Moore had a criminal history of aggravated or repeated instances
of assaultive behavior.
During the resentencing proceedings that were held on
remand, Moore conceded that he had two prior delinquency
adjudications for assault an adjudication for third-degree
assault, and an adjudication for fourth-degree assault. Based on
these two delinquency adjudications, Superior Court Judge Ben J.
Esch found that aggravator (c)(8) was proved. Moore now appeals
this ruling.
Moores initial argument is that Judge Esch violated
Moores Sixth Amendment right to jury trial, as interpreted in
Blakely v. Washington,2 when the judge decided aggravator (c)(8)
without submitting this issue to a jury.
Under Blakely, a defendant is normally entitled to a
jury trial on any issue of fact which, if found in the States
favor, will increase the defendants potential maximum sentence.
However, Blakely makes an exception for findings of fact that are
based on a defendants prior convictions. These factual issues
need not be submitted to a jury.3
In Milligrock v. State, 118 P.3d 11, 16 (Alaska App.
2005), this Court expressly held that a sentencing judge could
properly find aggravator (c)(8), without submitting the
aggravator to a jury, so long as the judges finding was based
solely on the defendants undisputed prior convictions for crimes
of assault.
In the present case, Judge Eschs finding of aggravator
(c)(8) was based, not on Moores prior criminal convictions, but
rather on Moores prior delinquency adjudications for conduct that
would have constituted crimes of assault if Moore had been an
adult. But in Greist v. State, 121 P.3d 811, 814 (Alaska App.
2005), this Court held that Alaska delinquency adjudications fall
within Blakelys prior conviction exception because, under Alaska
law, juvenile offenders have the same two crucial procedural
protections as adult criminal defendants: the right to trial by
jury, and the right to require the government to prove the
offense beyond a reasonable doubt.
Thus, under our decision in Greist, Judge Esch did not
violate Blakely when he decided aggravator (c)(8) without
submitting the aggravator to a jury, because his finding was
based solely on Moores prior delinquency adjudications for
assault.
Moore suggests that the holding in Greist applies only
to delinquency adjudications for felony conduct, not misdemeanor
conduct such as Moores adjudication for fourth-degree assault.
It is true that, in Greist, we stated that an Alaska
juvenile delinquency adjudication based on felony conduct falls
within the Blakely exception for prior convictions. Id. at 814
(emphasis added). However, the aggravating factor that was at
issue in Greist was aggravator (c)(19) the aggravator that
applies when a defendants prior criminal history includes an
adjudication as a delinquent [minor] for conduct that would have
been a felony if committed by an adult. AS 12.55.155(c)(19)
(emphasis added).
In other words, Greists language about delinquency
adjudications based on felony conduct must be understood in the
context of litigation about an aggravator that applies only to
delinquency adjudications based on felony conduct. No portion of
our decision in Greist or, at least, no portion other than this
one phrase taken out of context suggests that the Blakely prior
conviction exception should not apply to all delinquency
adjudications, whether based on felony or misdemeanor conduct.
In fact, the rationale that we gave in Greist for
treating delinquency adjudications as prior convictions under
Blakely applies equally to both of these types of delinquency
adjudications. Regardless of whether the minors underlying
conduct would constitute a felony or a misdemeanor, Alaska law
gives the minor the right to trial by jury and the right to
demand proof beyond a reasonable doubt.4
For these reasons, I reject Moores argument that our
holding in Greist should be limited to felony conduct.
Moore also argues that Greist was wrongly decided that
the result in Greist is inconsistent with Alaska juvenile
delinquency law. Moore relies specifically on AS 47.12.180(3),
which declares that a delinquency adjudication does not operate
to permit the adjudication to be afterward considered a
[criminal] conviction. Based on this statute, Moore argues that
this Court violated Alaska law when we declared that delinquency
adjudications should be treated like prior convictions for
purposes of Blakelys prior conviction exception to the right to
jury trial.
Moores argument is based on a misunderstanding of a
point of law that was explained by the Alaska Supreme Court in
Berfield v. State, 458 P.2d 1008 (Alaska 1969).
In Berfield, a sentencing judge relied on the
defendants prior delinquency adjudications when explaining why he
believed that the defendant should receive a lengthy sentence of
imprisonment for a new crime.5 Berfield argued that this was
legal error. Citing former AS 47.10.080(g) the predecessor to
current AS 47.12.180 Berfield argued that it was unlawful for
the sentencing judge to rely on his delinquency adjudications
because the statute declared that a delinquency adjudication
[could not] be afterward deemed a [criminal] conviction.6
But in Berfield, the supreme court explained that this
statute was not intended to bar judges from considering the
conduct underlying a prior delinquency adjudication. Rather, the
statute was intended to ensure that a delinquency adjudication
would not be treated as the equivalent of a criminal conviction
when the very existence of a conviction makes a difference to the
defendants legal status as, for instance, when the existence or
number of a defendants prior convictions will determine the
defendants mandatory minimum sentence.7 Thus, the supreme court
held, the sentencing judges act of considering and weighing the
conduct underlying Berfields prior delinquency adjudications did
not constitute using the juvenile [adjudications] as criminal
convictions.8
In the present case, Judge Eschs consideration of
Moores prior assaultive behavior conformed to the rule announced
in Berfield. The issue before Judge Esch was whether the State
had proved aggravator (c)(8) i.e., whether Moores history
included repeated instances of assaultive behavior. To resolve
this issue, Judge Esch could properly take account of the fact
that Moore had twice been adjudicated a delinquent minor for
engaging in assaultive behavior. Berfield holds that a
sentencing judge can rely on a defendants past conduct, even
though that conduct led to a delinquency adjudication.
Anticipating this analysis of the question, Moore
argues that if Judge Esch was relying solely on the prior
underlying conduct, without regard to whether that conduct led to
a delinquency adjudication, then Judge Esch violated Blakely
because the judge was no longer operating within the exception
for prior convictions. This argument is based on a
misunderstanding of Blakely.
The announced aim of Blakely is to ensure a defendants
right to jury trial (and the right to demand proof beyond a
reasonable doubt) when the resolution of an issue of fact will
affect the defendants potential maximum sentence. As this Court
explained in Edmonds v. State, 118 P.3d 17, 20 (Alaska App.
2005), the Blakely Court exempted issues of fact that are
resolved by a defendants prior conviction because, in order to
convict someone of a crime, the government must have already
honored (or the defendant must have affirmatively waived) the
right to trial by jury and the right to demand proof of the crime
beyond a reasonable doubt.
The Blakely exception for prior convictions applies, of
course, to aggravators that are proved by the existence of prior
convictions for instance, aggravator (c)(15), which applies to
defendants who have more than two prior felony convictions. But
this Court has repeatedly recognized that the Blakely prior
conviction exception also applies to aggravators that are proved
by the type of conduct that underlies a prior conviction
aggravators such as (c)(21) (prior similar criminal behavior)9,
(c)(18)(B) (prior sexually assaultive or abusive conduct)10, and
the aggravator involved in this case, (c)(8) (prior assaultive
conduct).11
Proof of these aggravators does not hinge on the fact
that the defendants prior behavior resulted in a criminal
conviction. Indeed, we have construed these aggravators to apply
to all instances of a defendants past behavior, whether that
behavior resulted in a criminal conviction or not.12 In other
words, the fact that the defendants underlying behavior may have
led to a criminal conviction is irrelevant to the issue of
whether the aggravator is proved.
But because of the right to jury trial recognized in
Blakely, the fact that the defendants conduct led to a conviction
is quite relevant to another issue the issue of which trier of
fact (sentencing judge or jury) must decide whether the
aggravator is proved. If the prior conduct led to a conviction,
the sentencing judge is authorized to consider that conduct
without submitting the issue to a jury.
I now apply this law to the facts of Moores case.
On the issue of whether the evidence in Moores case
established aggravator (c)(8), it was irrelevant that Moores
assaultive behavior had led to delinquency adjudications. It was
the underlying conduct that was relevant. Thus, under the rule
announced in Berfield, these delinquency adjudications were not
being treated as the equivalent of criminal convictions.
The fact that Moores past instances of assaultive
behavior resulted in delinquency adjudications was important,
however, for a different purpose: it allowed Judge Esch to
resolve aggravator (c)(8) without submitting the aggravator to a
jury, because of the Blakely exception for prior convictions.
For these reasons, Judge Esch violated neither AS
47.12.180 nor Blakely when he found aggravator (c)(8) based on
the assaultive conduct underlying Moores prior delinquency
adjudications.
Moore next argues that Judge Esch could not properly
rely on Moores delinquency adjudication for third-degree assault.
Moore notes that this adjudication was later set aside by the
superior court, based on the fact that Moore successfully
completed his probation. Because this delinquency adjudication
was set aside, Moore argues that Judge Esch was prohibited from
considering the conduct underlying this adjudication when he made
his decision on aggravator (c)(8).
I conclude that Moores contention is again answered by
the supreme courts decision in Berfield. Proof of aggravator
(c)(8) did not hinge on the existence of the set-aside
delinquency adjudication. Rather, the proof of this aggravator
rested on the conduct underlying the set-aside adjudication.
Under the rule announced in Berfield, it was proper for Judge
Esch to consider Moores prior conduct.
In this context, it is important to distinguish cases
such as Moores, where a prior conviction or a prior delinquency
adjudication is set aside because of the defendants later
successful completion of probation, from cases where a defendants
conviction or delinquency adjudication is later vacated based on
proof of the defendants factual innocence. In the latter
category of cases, it would obviously be improper for a judge to
rely on the conviction or delinquency adjudication as proof of
the underlying criminal conduct alleged by the State. But Moores
case is among the first category of cases cases where the
conviction or delinquency adjudication is set-aside for reasons
unrelated to the defendants factual guilt.
It could certainly be argued that a sentencing judge
should give lesser or little weight to aggravator (c)(8) that
is, to a defendants history of assaultive behavior if the
defendants later progress toward rehabilitation indicates that
the defendant is no longer likely to commit acts of violence.
Nevertheless, the fact that the defendant committed acts of
assault in the past remains proved, despite the set-aside based
on the defendants later successful completion of probation.
Moore next argues that notions of due process should
bar a judge (or even a jury) from relying on a defendants prior
misdemeanor-level assaults, committed when the defendant was a
minor, for purposes of proving aggravator (c)(8). Specifically,
Moore argues that, because the apparent purpose of aggravator
(c)(8) is to identify adult felony defendants who are atypically
dangerous (i.e., who are more assaultive than a typical felony
offender), it makes little sense to allow aggravator (c)(8) to be
proved by misdemeanor-level assaults committed when the defendant
was a young teenager. According to Moore, such youthful offenses
have essentially no probative value on the issue of an adult
offenders level of dangerousness or, at least, so little
probative value that it violates due process to allow this
youthful misconduct to be used as proof of aggravator (c)(8).
I reject this argument for much the same reasons I
rejected Moores argument about the set-aside adjudication. It
may be that a sentencing judge should give little or no weight to
a delinquency adjudication for assaultive conduct if that
assaultive conduct occurred when the defendant was quite young
and the defendant has not continued to exhibit violent behavior
in later life. On the other hand, if a defendant commenced
violent behavior when quite young and continues to exhibit
violent behavior even after reaching greater maturity, this would
be quite relevant to the sentencing judges assessment of the
defendants level of dangerousness and the defendants potential
for rehabilitation.
In other words, there may be times when the
circumstances of the case suggest that a sentencing judge should
give little weight to an early delinquency adjudication for
assaultive conduct. But on the other hand, there will be times
when this type of delinquency adjudication will properly be
viewed as significant to the sentencing decision. Moore is
simply incorrect when he asserts that such delinquency
adjudications are uniformly so irrelevant that it violates the
guarantee of due process of law for a judge to consider them.
Moore argues in the alternative that, even if Judge
Esch was entitled to rely on Moores prior delinquency
adjudications, the State failed to adequately prove the existence
of these adjudications. Moore points out that the State failed
to present certified copies of the judgements in those prior
delinquency cases, and instead relied simply on peoples
statements that those adjudications existed.
But Moore did not and does not dispute the existence
of those delinquency adjudications. Thus, to the extent that the
State might be faulted for failing to formally prove the
adjudications, any error was harmless beyond a reasonable doubt.
Finally, Moore argues that the Alaska Constitution
independently guarantees a right to jury trial that parallels
Blakely (that is, a right to trial by jury on any issue of fact
that will trigger a higher maximum sentence), except that the
Alaska right of jury trial contains no exception for findings of
fact based on a defendants prior convictions.
We rejected this contention in both Lockuk v. State,
153 P.3d 1012, 1017 (Alaska App. 2007), and Active v. State, 153
P.3d 355, 366-67 (Alaska App. 2007). Specifically, in Active
this Court held that the Alaska Constitution guarantees [no]
broader right to jury trial with respect to sentencing factors
than the right to jury trial recognized in Blakely. Id. at 367.
For all of these reasons, I agree with my colleagues
that the superior courts judgement should be affirmed.
_______________________________
1 AS 11.41.410(a)(1)and AS 11.31.100(a); AS 11.41.420(a)(3)(B)
and AS 11.31.100(a); and AS 11.46.300(a)(1), respectively.
2 479 P.2d 302 (Alaska 1970).
3 Moore, 123 P.3d at 1092-94.
4 Id. at 1092.
5 See Hurd v. State, 107 P.3d 314, 327-29 (Alaska App. 2005)
(holding that Alaskas law of the case doctrine includes
prohibition against claim-splitting).
6 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
7 458 P.2d 1008 (Alaska 1969).
8 Berfield, 458 P.2d at 1011-12.
9 See Greist v. State, 121 P.3d 811, 813-14 (Alaska App.
2005).
10 See Petersen v. State, 930 P.3d 414, 437 (Alaska App. 1996).
1 AS 11.41.410(a)(1) and AS 11.46.300(a)(1), respectively.
2 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
3 See Edmonds v. State, 118 P.3d 17, 20 (Alaska App. 2005)
(explaining the legal basis for Blakelys prior conviction
exception to the Sixth Amendment right to jury trial).
4 State v. Auliye, 57 P.3d 711, 714 (Alaska App. 2002).
5 Berfield, 458 P.2d at 1010.
6 Id. at 1011.
7 Id. at 1011.
8 Id. at 1012.
9 See Lockuk v. State, 153 P.3d 1012, 1014-15 (Alaska App.
2007); Grohs v. State, 118 P.3d 1080, 1083-84 (Alaska App. 2005).
10See Active v. State, 153 P.3d 355, 366 (Alaska App. 2007).
11See Milligrock v. State, 118 P.3d 11, 15-16 (Alaska App.
2005).
12See Russell v. State, 934 P.2d 1335, 1347 (Alaska App.
1997); Fagan v. State, 779 P.2d 1258, 1260 (Alaska App. 1989).
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