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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
| FRED A. BAKER, | ) |
| ) Court of Appeals No. A-9480 | |
| Appellant, | ) Trial Court No. 3AN-99-3658 CR |
| ) | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) [No. 2165 - May 2, 2008] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Gregory J. Motyka, Judge Pro Tem.
Appearances: Fred A. Baker, pro se, Seward,
Dan Lowery, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage,
for the Appellant. Kenneth M. Rosenstein,
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.
COATS, Chief Judge.
A jury convicted Fred A. Baker of felony driving while
intoxicated, felony refusal to submit to a breath test, driving
with a revoked license, and third-degree criminal mischief.1
Baker was arrested for these offenses after an officer observed
him driving erratically, speeding through a parking lot, and
driving on the sidewalk. He was on bail release for another
driving while intoxicated offense at the time. Superior Court
Judge Pro Tem Gregory J. Motyka found that Bakers offenses were
aggravated and sentenced him to a composite term of 11 years of
imprisonment.
Baker appealed, and we affirmed his convictions but
vacated his sentence. We ruled that Judge Motyka had erred in
finding the aggravating factor that Baker had previously been
convicted of a more serious felony.2 We also ruled that Judge
Motyka had erred in concluding that he was required by law to
impose a minimum sentence of 6 years to serve.3 We therefore
remanded the case to the superior court for resentencing.4
On remand, Judge Motyka reimposed the 11 years of
imprisonment. Baker appeals, contending that Judge Motyka
committed several errors at resentencing, including imposing an
excessive sentence. For the reasons explained below, we affirm
Judge Motykas sentencing decisions.
Baker first contends that Judge Motyka erred at
resentencing by not allowing him to challenge a prior California
felony conviction. That conviction formed part of the factual
basis for the superior courts finding of aggravating factor AS
12.55.155(c)(15) that Baker had previously been convicted of
three or more felonies. Baker conceded this aggravating factor
at his original sentencing.5 But at resentencing, he argued that
he was entitled to relitigate this issue as if the earlier
sentencing proceeding had not taken place.6
Judge Motyka ruled that our remand was limited to
reconsideration of Bakers sentence, and that Baker was not
entitled to challenge his California conviction. We agree with
Judge Motyka that our remand was for the purpose of allowing
Judge Motyka to reconsider Bakers sentence, and that Baker was
not entitled to relitigate other issues. We therefore conclude
that Judge Motyka did not abuse his discretion by refusing to
reconsider his finding that Baker had been convicted of three or
more felonies.
Judge Motyka did allow Baker to contest the aggravating
factors on the ground that he was entitled under the United
States Supreme Courts decision in Blakely v. Washington7 to have
a jury find those aggravating factors. Blakely was decided after
Bakers original sentencing. Baker now challenges Judge Motykas
Blakely rulings.
Baker argues that, under Blakely, a jury was required
to find the AS 12.55.155(c)(15) aggravating factor that he had
previously been convicted of three or more felonies. But we have
previously held that this aggravating factor is Blakely-compliant
when it is based on a defendants undisputed prior convictions.8
Because Baker conceded the existence of these convictions at his
original sentencing, Judge Motyka could find this aggravating
factor without submitting the issue to a jury.
Baker also contends that Judge Motyka violated Blakely
by finding aggravating factor AS 12.55.155(c)(12) that Baker was
on release for another felony charge or conviction at the time he
committed his present offense. But Judge Motyka found that court
documents clearly established that Baker was on felony release at
the time of his offense, and Baker conceded this aggravator at
his original sentencing.9 Since it was undisputed that Baker was
on release for another felony at the time he committed his
present offenses, any error in depriving him of a jury trial on
this aggravating factor was harmless beyond a reasonable doubt.10
Furthermore, to comply with Blakely, the court needed to find
only a single Blakely-compliant aggravating factor.11 Thus, the
(c)(15) aggravator of three or more felony convictions was
independently sufficient authority for Bakers sentence.
Baker next argues that, under the state constitution,
we should reject the federal cases adopting a prior conviction
exception to Blakely. In other words, he argues that, under
state law, the fact of a prior conviction must be found by a
jury, not a judge. We recently rejected this claim in Active v.
State.12 Baker has not convinced us that Active was wrongly
decided.
Baker also argues that Judge Motyka erred by finding
that he was a worst offender. In Alaska, courts normally may not
impose a maximum sentence for a felony offense without a worst
offender finding.13 Baker argues that, under Blakely, this worst
offender finding must be made by a jury.
In Simon v. State,14 we observed that other states have
held that a worst offender classification need not be submitted
to a jury under Blakely.15 Some states have concluded that a
worst offender classification is a traditional component of
sentencing a legal assessment of the significance of the proved
facts of the defendants conduct and background for purposes of
exercising sentencing discretion.16 Other states have held that
a worst offender finding is not covered by Blakely if other
aggravating factors have already been proved in conformity with
Blakely thus establishing the judges authority to impose a
sentence within the higher range.17 In Simon, we found it
unnecessary to decide what rule to adopt as a matter of Alaska
law.18
We now hold that a defendant is not entitled to a jury
trial on the issue of whether he or she is a worst offender. In
Bakers case, the jurys verdict and Judge Motykas finding of at
least one Blakely-compliant aggravating factor authorized a
sentence of up to 11 years of imprisonment. State law required
Judge Motyka to find that Baker was a worst offender before he
imposed that maximum sentence. But that finding is based on
traditional sentencing criteria that the characteristics of the
offense and/or the offender justify the imposition of a maximum
sentence.19 The worst offender rule directs a sentencing judge
to articulate substantial reasons for imposing a maximum
sentence. Requiring the sentencing judge to make this finding
facilitates appellate review of sentencing. It also promotes the
legislatures goals of eliminating unjustified disparity in
sentencing and attaining reasonable uniformity in sentencing.20
Because we conclude that a worst offender finding is not the type
of factual issue that must be submitted to a jury under Blakely,
we reject Bakers claim that the court erred in finding him a
worst offender.
Baker next contends that Blakely aggravators must be
presented to the grand jury. Baker concedes that this court has
already considered this issue and rejected his argument. In
State v. Dague,21 we determined that a defendant does not have a
right to grand jury indictment on an aggravating factor.22 We
adhere to that decision.
Baker contends that holding a hearing after trial to
determine aggravating factors violates his federal and state
double jeopardy rights. But as we discussed in Dague, there is
no double jeopardy violation when a later proceeding is held to
cure a Blakely error.23 We therefore reject Bakers claim.
Baker argues that convicting him for driving while
intoxicated and also convicting him for refusing to take the
breath test violates the Double Jeopardy Clause of the United
States and Alaska constitutions. Bakers argument hinges on his
contention that driving while intoxicated is a lesser-included
offense of refusal to take the breath test. But they are clearly
separate offenses.
In 1999, the crime of DWI was defined in AS
28.35.030(a)(1) as follows:
A person commits the crime of driving while intoxicated if the
person operates or drives a motor vehicle or operates an aircraft
or a watercraft while under the influence of intoxicating
liquor.24 In 1999, the crime of breath test refusal was defined
in AS 28.35.032(a) as follows:
If a person under arrest for operating a
motor vehicle or aircraft while intoxicated
refuses the request of a law enforcement
officer to submit to a chemical test
authorized under AS 28.33.031(a)(1) or AS
28.35.031(a), ... after being advised by the
officer that the refusal will result in the
denial or revocation of the drivers license,
privilege to drive, or privilege to obtain a
license, that the refusal may be used against
the person in a civil or criminal action or
proceeding arising out of an act alleged to
have been committed by the person while
operating a motor vehicle or aircraft while
intoxicated, and that the refusal is a crime,
a chemical test may not be given.[25]
To convict Baker of DWI, the State had to prove that Baker was
actually driving while intoxicated.26 In contrast, the State did
not have to prove that Baker was driving while intoxicated to
convict him of breath test refusal, only that he was legally
under arrest for DWI.27
Similarly, the State had to prove that Baker refused to
submit to a breath test in order for Baker to be convicted of
breath test refusal.28 The State did not have to prove that
Baker refused to submit to a breath test for Baker to be
convicted of DWI.29 In Wilson v. State,30 we noted that
there is nothing inconsistent in a jury finding a defendant
guilty of breath test refusal but not reaching a decision on
whether the defendant was guilty of DWI.31 In Garrison v.
State,32 an unpublished decision, we held that the double
jeopardy clause does not prohibit the State from convicting a
defendant of both driving while intoxicated and refusal to take a
breath test arising from the same incident.33 Lastly, in Brown
v. State,34 we stated: Driving while intoxicated and refusing a
breath or blood test are separate offenses permitting separate
convictions and separate sentences.35 We therefore reject Bakers
double jeopardy arguments.
Baker contends that his fines for DWI and breath test
refusal should be concurrent. At resentencing, Baker asked Judge
Motyka to impose the fines concurrently. Judge Motyka granted
this request. But the written judgment states that the fines are
consecutive. The State concedes error. We have previously held
that a judges oral sentencing remarks control over any
conflicting provision in the written judgment.36 We therefore
direct the trial court to correct the written judgment to reflect
that the fines for DWI and breath test refusal are concurrent.
Judge Motyka ordered Bakers drivers license revoked for
5 years for each conviction, and he ordered these sentences to be
consecutive to each other. Baker argues that Judge Motyka did
not have the authority to impose the drivers license revocations
consecutively. But in Snyder v. State,37 we indicated that a
sentencing judge has the discretion to impose the license
revocation penalties for DWI and breath test refusal
consecutively or concurrently.38 The record shows that Judge
Motyka considered imposing the license revocations concurrently
but concluded that it was appropriate to impose the license
revocations consecutively. Given Bakers extensive record, we
conclude that Judge Motykas decision to impose the revocations
consecutively was not clearly mistaken.39
Bakers claim that his sentence is excessive
To understand Bakers sentence, we need to consider two
incidents, approximately one month apart, in which Baker drove
while intoxicated. The first incident occurred in Kenai on April
5, 1999. We discussed this incident in our former decision in
this case:
On April 5, 1999, motorists reported
seeing Baker drive through a red light, over
curbs, and in excess of 80 miles per hour.
Soldotna Police Officer Joseph Shoemaker saw
Baker lose control of his car just before he
stopped him. Shoemaker concluded that Baker
was intoxicated and arrested him.
At the police station, Baker yelled and
screamed while the officer read the implied
consent warning. Baker refused to submit to
a breath test.
On the way to a correctional facility,
Baker managed to release his safety belt and
to bring his handcuffed hands in front of
him. He cursed at Officer Shoemaker and
threatened the officer and his family.[40]
As noted earlier, Baker was ultimately convicted of driving while
intoxicated and felony refusal to submit to a breath test.41
Both offenses are class C felonies.42 Superior Court Judge
Jonathan H. Link sentenced Baker to a composite 5 years of
imprisonment for these offenses.43
Baker was released on bond from the Kenai offenses on
April 16, 1999. His present offense occurred in Anchorage three
weeks later on May 4, 1999. We discussed that case in our former
decision:
On May 4, 1999, Anchorage Police Officer
Richard Steiding observed Fred A. Baker
driving erratically. Baker stopped abruptly
at 13th Avenue, proceeded through the parking
lot of the Carrs supermarket at the speed of
15-20 miles per hour, cut across the parking
lot, and drove down the sidewalk, traveling
eastbound on 13th Avenue. Officer Steiding
pursued Baker and located the vehicle parked
in the Carrs parking lot, parked in front of
a No Parking sign. Anchorage Police Officer
Joel Breiner arrived to assist and
subsequently arrested Baker. Officer Breiner
transported Baker to a police substation for
processing.
Baker twice refused to take a breath
test. Baker asked for an independent test
and was transported to Alaska Regional
Hospital, where he insisted on having only a
urine test. Bakers urine tested positive for
alcohol, cocaine and marijuana. While he was
being taken to the magistrate for a bail
hearing, Baker began growling and biting the
backseat of the officers patrol car. The
officers restrained Baker, but he remained
combative despite the restraints.
Baker was indicted on one count each of
felony driving while intoxicated and felony
refusal to submit to a chemical test. He was
also charged with driving while license
revoked, and third-degree criminal mischief.
A jury convicted Baker of all the
charges.[44]
In our former decision, we also discussed Bakers prior criminal
record:
Baker was 37 years old at the time he
committed the Anchorage offenses. Bakers
first felony conviction took place in 1981
when he was 19 years old. He was convicted
of possession of marijuana for sale and
sentenced to 120 days in jail. In the 1980s,
Baker accumulated approximately 12
misdemeanor offenses. Most of these offenses
are for driving without an operators license
or for driving while his license was
suspended. In 1990, Baker was convicted of
his second felony offense, making a false
statement on a title application. Baker was
sentenced to 1 year suspended and placed on 3
years probation. But his probation was
revoked in 1992 and Baker was ordered to
serve 1 year of imprisonment. In September
1991, Baker was convicted of misconduct
involving a weapon in the first degree, then
a class C felony. He was sentenced to 3
years with 1 year suspended.
In 1997, Baker committed his first
driving while intoxicated offense. In this
case, Baker was involved in a motor vehicle
collision. Less than a month later, Baker
was convicted of his second driving while
intoxicated offense and for driving while his
license was suspended. Two months later,
Baker again drove while his license was
suspended. Bakers Kenai offenses occurred
April 5, 1999 and his Anchorage offenses
occurred less than 30 days after.[45]
We discussed Judge Motykas sentencing findings as follows:
In sentencing Baker, Judge Motyka
considered Bakers prior criminal history. He
concluded that Baker was a worst offender
with poor prospects for rehabilitation. He
pointed out that Baker had consistently
failed on probation. He considered Bakers
actions and his sentence [in the Kenai case
6 years at the time, later reduced to 5
years]. He pointed out, at the time that
Baker committed the Anchorage offenses, he
had just been released on felony driving
while intoxicated and refusal charges knowing
that he faced a substantial sentence in the
Kenai case. Yet he had committed similar
offenses in Anchorage. He concluded that
this sequence of events showed that Baker was
completely out of control. Judge Motyka
imposed a sentence of 5 years for felony
driving while intoxicated, 5 years for felony
refusal to take the chemical test, 1 year for
license revoked and 6 months for criminal
mischief in the third degree. Judge Motyka
imposed these sentences consecutively to each
other for a composite sentence on the
Anchorage case of 11 years of
imprisonment.[46]
In our former decision we stated that, since Judge Motyka had not
specified whether his sentence was concurrent or consecutive to
the Kenai sentence, Judge Motykas sentencing remarks on this
point were at best, ambiguous.47 We therefore concluded that
it was reasonable to interpret Judge Motykas remarks as imposing
a sentence of 11 years to be served concurrently with the Kenai
sentence.48
We also concluded that Judge Motyka had erred in
finding the aggravating factor that Baker had previously been
convicted of a more serious felony and in concluding that he was
required by law to impose Bakers 3-year presumptive sentence for
felony refusal to take a breath test consecutively to the
sentence for felony driving while intoxicated.49 We therefore
remanded for resentencing.
At resentencing, Judge Motyka again imposed 11 years of
imprisonment. Judge Motyka again found that Baker was a worst
offender. He emphasized that, based on Bakers extensive record
of driving while intoxicated offenses and his complete failure to
address his substance abuse problems, Baker was a demonstrated
danger to the public. He pointed out that Baker was on release
for only a short period of time on the Kenai offenses when he
committed his present offenses, knowing that he faced a
substantial sentence. He pointed out that in Bakers current
driving while intoxicated offense, Baker could easily have killed
someone.
On appeal, Baker claims that his sentence is excessive.
In particular, Baker contends that his sentence is similar to
sentences in which defendants have killed or seriously injured
someone when they are driving while intoxicated. For instance,
in Pusich v. State,50 we pointed out that a survey of prior cases
reveals that both the supreme court and this court have affirmed
sentences of 10 to 13 years imprisonment for vehicular
homicide.51 (In Pusich, we upheld a sentence of 25 years with 7
years suspended based on the particularly egregious facts of that
case.52)
In analyzing the sentence Baker received, we note that
the sentence is concurrent with the 5-year sentence that Baker
was already serving for his Kenai conviction. Baker was a third
felony offender for purposes of presumptive sentencing. He
therefore faced a presumptive term of 3 years of imprisonment on
each of the two class C felonies (breath test refusal and DWI).53
The minimum sentences for the breath test refusal and DWI had to
be consecutive, so the starting point for Bakers sentence was 3
years, 120 days. At the time of his Anchorage offenses, Baker
was facing serious felony charges in Kenai, yet he left his third-
party custodian, drove in Anchorage while intoxicated, and then
drove on the sidewalk. Under these circumstances, Judge Motyka,
in Bakers original sentence, could have properly decided to
impose a substantial sentence consecutive to the time that Baker
faced on the Kenai convictions.
In addition, Baker was almost forty years old at the
time of the charged conduct and had a total of twenty-four prior
convictions, including several felonies. In addition to his DWI
offenses, Baker had been convicted seven times for driving while
his license was suspended and five times for driving without a
valid license. Judge Motyka concluded, based upon Bakers prior
record and his current convictions, that it was necessary to
impose 11 years of imprisonment to protect the public, because
Baker was eventually going to kill someone if he was not
incarcerated. Judge Motykas findings are supported by the record
and support the sentence that he imposed. We conclude that the
sentence is not clearly mistaken.54
AFFIRMED and REMANDED.
_______________________________
1 Baker v. State, 110 P.3d 996, 997 (Alaska App. 2005)
(citing AS 28.35.030(a)(1), (n); AS 28.35.032(a), (p); AS
28.15.291(a); and AS 11.46.484(a)(1), respectively).
2 Id. at 1004; AS 12.55.155(c)(7).
3 Baker, 110 P.3d at 1004.
4 Id.
5 Id. at 1001.
6 Tookak v. State, 680 P.2d 509, 511 (Alaska App. 1984).
7 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
8 State v. Avery, 130 P.3d 959, 962 (Alaska App. 2006).
9 Baker, 110 P.3d at 1001.
10 See Tyler v. State, 133 P.3d 686, 689 (Alaska App.
2006).
11 See Cleveland v. State, 143 P.3d 977, 984-85 (Alaska
App. 2006).
12 153 P.3d 355, 367 (Alaska App. 2007).
13 Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971).
14 121 P.3d 815 (Alaska App. 2005).
15 Id. at 819-20.
16 Id. at 819.
17 Id. at 820.
18 Id.
19 See State v. Wortham, 537 P.2d 1117, 1120 (Alaska
1975).
20 AS 12.55.005; cf. Vandergriff v. State, 125 P.3d 360,
363 (Alaska App. 2005) and 370-72 (Mannheimer, J., concurring)
(explaining that the right to jury trial announced in Blakely
does not apply to a finding under the Neal-Mutschler rule that a
composite term to serve exceeding the maximum term for the
defendants single most serious crime is necessary to protect the
public (discussing Neal v. State, 628 P.2d 19 (Alaska 1981) and
Mutschler v. State, 560 P.2d 377 (Alaska 1977))).
21 143 P.3d 988 (Alaska App. 2006).
22 Id. at 991.
23 Id. at 1013-14.
24 Former AS 28.35.030(a)(1) (1999).
25 Former AS 28.35.032(a) (1999).
26 See former AS 28.35.030(a) (1999).
27 See former AS 28.35.032(a) (1999).
28 See former AS 28.35.032(a) (1999).
29 See former AS 28.35.030(a) (1999).
30 680 P.2d 1173 (Alaska App. 1984).
31 Id. at 1179.
32 Alaska App. Memorandum Opinion and Judgment No. 4576
(May 29, 2002), 2002 WL 1150738.
33 Id. at 2, 2002 WL 1150738 at *1.
34 739 P.2d 182 (Alaska App. 1987).
35 Id. at 183 n.1 (citing Whitton v. State, 479 P.2d 302
(Alaska 1970)).
36 See, e.g., Graybill v. State, 822 P.2d 1386, 1388
(Alaska App. 1991); Figueroa v. State, 689 P.2d 512, 514 (Alaska
App. 1984). See also Whittlesey v. State, 626 P.2d 1066, 1067-68
(Alaska 1980).
37 879 P.2d 1025 (Alaska App. 1994), revd on other
grounds, 930 P.2d 1274 (Alaska 1996).
38 Id. at 1030.
39 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
40 Baker, 110 P.3d at 1000 (internal footnotes omitted).
41 Id.
42 Id. (citing AS 28.35.030(a)(1) or (2), (n); AS
28.35.032(a), (p)).
43 Id.
44 Id. at 997-98.
45 Id. at 1001.
46 Id. at 1001.
47 Id. at 1002.
48 Id. at 1003.
49 Id. at 1003-04.
50 907 P.2d 29 (Alaska App. 1995).
51 Id. at 38.
52 Id. at 31, 39.
53 Baker, 110 P.3d at 1000.
54 See McClain, 519 P.2d at 813-14.
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