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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: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JAMES R. MALUTIN, | ) |
| ) Court of Appeals Nos. A-9742 & A-9981 | |
| Appellant, | ) Trial Court No. 3KO-96-360 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2203 January 9, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kodiak, Eric A. Aarseth and
Craig Stowers, Judges.
Appearances: Glenda Kerry, Assistant Public
Advocate, and Joshua P. Fink, Public
Advocate, and Rachel Levitt, Acting Public
Advocate, Anchorage, for the Appellant.
Diane 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.
MANNHEIMER, Judge.
In 1996, James R. Malutin was charged with first-degree
burglary and first-degree sexual abuse of a minor. These charges
were resolved when Malutin agreed to plead no contest to a single
charge of attempted first-degree sexual abuse of a minor.
Malutin further agreed that he would receive a sentence of
12 years imprisonment with 7 years suspended i.e., 5 years to
serve for this crime.
Before the superior court could lawfully impose this
negotiated sentence, the State had to establish one or more of
the aggravating factors listed in AS 12.55.155(c). This was
because attempted first-degree sexual abuse of a minor is a class
A felony,1 and, under Alaskas pre-2005 presumptive sentencing
law, Malutin faced a 5-year presumptive term for this offense.2
In the absence of aggravating factors, the superior court had no
authority to exceed this prescribed 5-year presumptive term even
if all of the additional jail time was suspended.3
Thus, to enable the superior court to impose the agreed-
upon sentence of 12 years with 7 years suspended, Malutin
stipulated to two aggravating factors under AS 12.55.155(c):
(c)(5) that Malutin knew the victim of his offense was
particularly vulnerable or incapable of resistance because of her
extreme youth; and (c)(19) that Malutins prior criminal history
included a delinquency adjudication for conduct that would have
been a felony if committed by an adult.
Malutin received the agreed-upon sentence, and he
served his initial time in prison. He was then released to
probation, which he violated several times. While his most
recent probation revocation proceedings were pending, Malutin
raised a constitutional challenge to his plea agreement. The
superior court rejected Malutins challenge giving rise to the
present appeal.
The litigation in the superior court
Malutins challenge to his plea agreement was
based on the Sixth Amendment right to jury trial
recognized by the United States Supreme Court in
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004).
Under Blakely, Malutin (and all other
defendants subject to presumptive sentencing under
Alaskas pre-2005 law) had the right to demand a jury
trial on any aggravating factors alleged by the State
(other than those premised on prior criminal
convictions), and the concomitant right to demand that
the State prove these aggravators beyond a reasonable
doubt.4 Malutin asserted that his plea agreement with
the State was invalid because (as explained above) the
lawfulness of Malutins agreed-upon sentence hinged on
the States proof of the aggravators, and because
(according to Malutin) he was unlawfully denied his
right to jury trial on those aggravators.
Malutin acknowledged that he had stipulated
to the two aggravating factors, but he argued that he
should not be held to this stipulation. Malutin
asserted that, because of Blakely, aggravating factors
must be deemed necessary elements of a defendants
underlying crime. And, according to Malutin, because
the two aggravators were really elements of his
offense, the superior court could not lawfully accept a
stipulation concerning these aggravators from Malutins
attorney without also personally addressing Malutin and
obtaining his personal waiver of his right to jury
trial on these aggravators.
In addition, Malutin asserted that there was
no factual basis for aggravator (c)(19) (prior
delinquency adjudication for felony conduct). Malutin
noted that he was adjudicated a delinquent minor for
the offense of fourth-degree sexual abuse of a minor
which is not a felony, but rather a class A
misdemeanor. See AS 11.41.440(b).
In opposition to Malutins claim, the State
argued that Malutin should not be allowed to withdraw
his stipulation to the aggravating factors because that
stipulation was a necessary ingredient of the plea
bargain and the negotiated sentence.
With regard to Malutins claim that there was
no factual basis for aggravator (c)(19), the State
conceded that Malutins delinquency adjudication was for
fourth-degree sexual abuse of a minor, and that this
offense is a misdemeanor. However (as we explain in
more detail below), the State argued that reasonable
people could differ as to whether this delinquency
adjudication could still serve as the basis for
aggravator (c)(19). And the State pointed to this
Courts decision in Connolly v. State, 758 P.2d 633, 638
(Alaska App. 1988), where we recognized that a
sentencing judge has the authority to accept the
parties stipulation regarding an aggravating or
mitigating factor if the existence of the factor is in
reasonable dispute and the parties stipulation
represents their compromise (i.e., agreed-upon
resolution) of this dispute.
Superior Court Judge Eric A. Aarseth denied
Malutins motion, concluding that the right to jury
trial recognized in Blakely was not retroactive i.e.,
that the right did not apply to any defendant whose
conviction was entered before Blakely was decided.
About two months later, this Court issued our
decision in Smart v. State, 146 P.3d 15 (Alaska App.
2006). In Smart, we held that, under Alaska law, the
Blakely right to jury trial is retroactive. 146 P.3d
at 40.
Following our decision in Smart, Malutin
filed a new motion challenging his sentence. This
time, Malutin asked the superior court to rescind his
plea agreement under Alaska Criminal Rule 35(a), the
rule that authorizes the superior court to correct an
illegal sentence. Malutin argued that his negotiated
sentence was illegal under Blakely. Malutins
underlying arguments were essentially the same: (1)
that he had a right to jury trial with regard to
aggravator (c)(5), (2) that the superior court could
not accept his attorneys stipulation to this aggravator
without also obtaining Malutins personal waiver of the
right to jury trial, and (3) that, in any case, there
was no factual or legal basis for aggravator (c)(19).
(As Malutin correctly noted in his motion,
when a defendant believes that a negotiated sentence is
unlawful under Blakely, the defendant must seek
rescission of the entire plea agreement under Criminal
Rule 11(h) and not just deletion of the portion of the
sentence that purportedly violates Blakely. See
Woodbury v. State, 151 P.3d 528, 532 (Alaska App.
2007).)
Malutins motion was assigned to Superior
Court Judge Craig Stowers. In a written decision,
Judge Stowers denied the motion for two pertinent
reasons. First, Judge Stowers concluded that Blakely
was not retroactive, and thus Malutin could not claim
the benefit of Blakely. Judge Stowers understood that
his ruling was at odds with this Courts decision in
Smart, but he concluded that he was not bound by Smart.
To support the conclusion that he was not
bound by our decision in Smart, Judge Stowers relied on
the wording of Alaska Appellate Rule 507(b), which
declares that a decision issued by an appellate court
either this Court or the Alaska Supreme Court normally
takes effect ... on the day specified in [Appellate]
Rule 512(a) for return of the record [to the trial
court].
As Judge Stowers noted, if a party petitions
the supreme court to hear a case decided by this Court,
the record is not returned to the trial court until the
supreme court resolves the petition for hearing. See
Appellate Rule 512(a)(2). Reading Appellate Rule
507(b) and Appellate Rule 512(a)(2) in conjunction, and
knowing that the States petition for hearing in Smart
remained unresolved,5 Judge Stowers concluded that this
Courts decision in Smart had not yet taken effect and
thus the Smart decision did not bind him (or any other
superior court judge).
Judge Stowers alternatively ruled that, even
if he was bound by this Courts ruling that Blakely is
retroactive in Alaska, Malutin would still not be
entitled to relief because Malutin stipulated to the
two contested aggravating factors as part of a
negotiated plea. The judge noted that Blakely itself
holds that a defendant can concede aggravating factors
and give up the right to jury trial. The judge also
noted that, in Woodbury v. State, this Court held that
it is not plain error for a sentencing judge to accept
a defense attorneys concession of one or more
aggravating factors without separately addressing the
defendant personally and obtaining the defendants
explicit waiver of the right to jury trial. See
Woodbury, 151 P.2d at 531.
Does this Courts decision in Smart v. State control
this litigation?
In Smart, this Court held that the Sixth
Amendment right of jury trial recognized in Blakely
applies to Alaska defendants whose convictions pre-date
Blakely. However, as explained above, the superior
court ruled that our decision in Smart is not binding
on any trial court. The superior court noted that the
State has petitioned the Alaska Supreme Court to review
our decision, and the supreme court has not yet
resolved the States petition. Because of these
circumstances, and because Appellate Rule 507(b) and
Appellate Rule 512(a) (taken in conjunction) declare
that the decision of an appellate court normally takes
effect only when all further avenues of review and
reconsideration have been exhausted or waived, the
superior court ruled that the decision in Smart had not
yet taken effect.
On appeal, Malutin argues that the superior
court was wrong, and that our decision in Smart
controls this litigation. The State, for its part,
does not offer a defense of the superior courts ruling
on this issue. Rather, the State argues that the issue
of Blakelys retroactivity is moot because (according
to the State) Malutin is not entitled to relief even if
Blakely applies to his case.
As we explain in the next section of this
opinion, we agree with the State that even if our
decision in Smart controls this litigation, Malutin is
not entitled to relief. For this reason, we need not
decide whether the superior court correctly construed
Appellate Rule 507(b). However, because this issue is
a significant one, we believe that we should include a
short explanation of the history of Appellate Rule
507(b) not to announce any opinion on the question of
whether the superior courts ruling was correct, but
rather to inform any later litigation of this point.
Appellate Rule 507 was first enacted in 1980,
as part of a comprehensive revision and restructuring
of Alaskas rules of appellate procedure.6 As first
enacted, paragraph (a) of Rule 507 directed the
appellate clerk to issue a mandate at the conclusion of
the appellate proceedings. As defined in this former
version of Rule 507(a), the mandate was a court order
separate from the opinion issued by the appellate court
that inform[ed] the trial court of the proceedings in
the appellate courts and that formally returned full
jurisdiction over the case ... to the trial court
(unless the mandate specified otherwise).
Paragraph (b) of Rule 507 contained a set of
rules for determining when the clerk should issue the
mandate. These rules are the same ones now found in
Appellate Rule 512(a) for determining when the record
should be returned to the trial court. In other words,
the clerk issued the mandate when all further avenues
of review and reconsideration had been exhausted or
waived.
This practice of issuing a mandate at the end
of the appellate proceedings was a continuation of the
practice codified in Alaskas predecessor rule, Supreme
Court Rule 28.7 Indeed, even today, this practice is
followed by the federal courts (see Federal Appellate
Rule 41) and many state courts.8 As explained in
Wright, Miller, and Coopers Federal Practice and
Procedure: Jurisdiction and Related Matters (3rd ed.
1999), the mandate is the appellate courts order to the
lower court, directing the lower court to take whatever
further action is necessary and/or appropriate in light
of the appellate courts decision. The spreading of the
mandate is the act that formally returns jurisdiction
over the case to the lower court.9
In other words, the appellate courts opinion
was its statement of the law, while the appellate
courts mandate was its order returning jurisdiction
over the case to the lower court, and directing the
lower court to perform whatever actions were necessary
or proper to carry out the appellate courts decision in
that particular case.
One potential problem with this system is
that the directions to the trial court contained in the
mandate might differ from the actions seemingly called
for by the appellate courts opinion. A second problem
with this system is that, if the appellate court fails
to issue a mandate (even if this failure is a result of
mistake or oversight), the lower court might never
resume lawful control over the case. See, e.g., Bell
v. Thompson, 545 U.S. 794, 125 S.Ct. 2825, 162 L.Ed.2d
693 (2005). Thus, whatever decision might have been
announced by the appellate court, the lower court would
have no authority to put the appellate decision into
effect in the particular case before it.
In December 1982, the Alaska Supreme Court
amended Appellate Rules 507 and 512 in a way that
solved these problems by eliminating the requirement
of a mandate. See Supreme Court Order No. 551,
effective February 1, 1983, which the court described
(in the title of the order) as an amendment to
eliminate the issuance of mandates. In this order, the
supreme court re-wrote paragraph (a) of Appellate Rule
507 to its present form. Rule 507(a) now says:
The opinion of the appellate court, or
its order under Rule 214, shall constitute
its judgment, and shall contain its
directions to the trial court, if any. No
mandate shall be issued.
As explained above, the mandate
performed two functions: it contained the
appellate courts directions to the lower
court, and it was the order that formally
returned jurisdiction over the case to the
lower court. The revised version of Rule
507(a) provides a substitute method for
fulfilling the mandates first function by
requiring the appellate court to include its
directions to the lower court in the text of
the opinion itself. But Rule 507(a) does not
provide a substitute for the mandates second
function: the formal return of jurisdiction
to the lower court, giving the lower court
the authority to put the appellate courts
decision into effect in the case before it.
This second function of the mandate
is now addressed in paragraph (b) of Rule
507:
Unless the opinion or order expressly
states otherwise, the judgment of the
appellate court takes effect and full
jurisdiction over the case returns to the
trial court on the day specified in Rule
512(a) for return of the record. However, in
an appeal under Appellate Rule 207 relating
to [the bail] release [of a criminal
defendant] prior to judgment, the judgment of
the Court of Appeals takes immediate effect
and full jurisdiction over the case returns
to the trial court on the day the Court of
Appeals issues its opinion or order deciding
the appeal.
In other words, in all appellate cases except
pre-sentencing bail appeals, the return of
jurisdiction to the trial court takes place
automatically on the day that the record is
returned to the trial court, as determined by
the rules set forth in Appellate Rule 512(a).
As explained above, Rule 512(a)
codifies the same rules that used to be
contained in the pre-1983 version of Rule
507(b). That is, Rule 512(a) calls for the
record to be returned to the lower court when
all further avenues of appellate review and
reconsideration have been exhausted or waived
the same rule that governed the issuance of
the appellate courts mandate under former
Rule 507(b). Thus, under the current version
of Rules 507 and 512, jurisdiction over a
case returns to the lower court at precisely
the same time that jurisdiction would have
been returned to the lower court under the
previous version of Rule 507.
The supreme court may have thought
that the current version of Rule 507 (read in
conjunction with Rule 512) was simply a
substitute for the pre-1983 version of Rule
507 with the advantage that the law no
longer required the procedural complication
of a separately issued mandate. But as Judge
Stowerss ruling in Malutins case illustrates,
the supreme court introduced an ambiguity
into the law when the court re-wrote Rule
507(b) to say that the judgment of the
appellate court takes effect ... on the day
specified in Rule 512(a) for return of the
record.
The history of Rule 507 suggests
that this language was intended to address
(and provide a substitute for) the mandates
role as the appellate courts judgement the
formal order returning jurisdiction over that
particular case to the lower court, and
directing the lower court to comply with the
appellate courts decision. Interpreted in
this fashion, Rule 507(b) would not delay the
precedential effect of the appellate courts
decision insofar as the court had interpreted
or defined the law for future cases. Rather,
Rule 507(b) would delay only the operative
effect of the appellate courts judgement
i.e., the courts formal order affecting the
lower courts judgement in the case before it.
But as we explained above, the
superior court in Malutins case interpreted
this wording to mean that the decision of an
appellate court has absolutely no effect
until the time specified in Rule 512(a) has
arrived i.e., until all further avenues of
review and reconsideration have been
exhausted or waived. Under this reading of
Rule 507(b), the statements of law contained
in an appellate courts opinion would have no
binding effect on any court (even that same
appellate court itself) until the record was
returned to the lower court in that
particular case.
To our knowledge, this point of law
has never before been addressed in an Alaska
appellate decision. And the law from other
jurisdictions provides no clear answer.
The Kansas Court of Appeals has
declared that the answer is self-evident: It
requires no citation of authority to note
that Court of Appeals decisions do not become
the law of this state until a petition for
[supreme court] review, if filed, has been
denied and a mandate has been issued. State
v. Oliver, 46 P.3d 36, 38 (Kan. App. 2002).
But other states do not find this
principle of law to be self-evident.
Instead, these states declare either by
court decision or court rule that
interpretations of the law adopted by an
intermediate appellate court are immediately
binding, and remain so until such time as the
intermediate courts decision is reversed by a
higher court. See Hickey v. Riera, 774
N.E.2d 1, 10 (Ill. App. (1st Dist.) 2001)
(stating that [j]udgments of the appellate
court are operative from the time of their
entry); Upton v. Swedish American Hospital,
1910 WL 2204 (Ill. App. (1st Dist.) 1910)
(same); Ex parte Rutherford, 556 S.W.2d 853,
855 (Tex. Civ. App. 1977) (an application for
writ of error to the [Texas] Supreme Court
[merely] deprives the judgment of a Court of
Civil Appeals of the degree of finality
contemplated by the statute governing the
issuance of mandates); California Rules of
Court 8.1115(d) (A published California
opinion may be cited or relied on as soon as
it is certified for publication or ordered
published.).
As we noted at the beginning of
this section, we do not need to resolve this
issue in Malutins case. However, we take
judicial notice that, each year, several
dozen of this Courts decisions become the
subjects of petitions for hearing to the
Alaska Supreme Court. The great majority of
these petitions are denied, but when a
petition is granted, the supreme court
sometimes takes two or three years to decide
the case.10
Accordingly, there is some reason
to expect that the issue presented here
i.e., the legal status of this Courts
interpretations of the law in cases where a
petition for hearing has been filed and
remains unresolved will be raised again. If
this issue is raised again, the trial courts
and the litigants will have the benefit of
our discussion here.
Why we conclude that Malutin is not entitled to relief
even if the Blakely right to jury trial applies to
his case
If we assume that the Blakely right of jury
trial applies retroactively to Malutins case, this
means that Malutin can challenge the legality of
his sentence by attacking the two aggravating
factors that the superior court relied on to
impose a sentence above the presumptive term.11
(However, as we explained above, and as we held in
Woodbury, Malutins remedy is not reduction of his
sentence, but rather rescission of his plea
agreement.)
Because Malutin did not demand a jury trial
on these aggravators during his original sentencing
proceedings, he must now show that any violation of
Blakely amounted to plain error. Lockuk v. State, 153
P.3d 1012, 1017-18 (Alaska App. 2007).
Malutins claim that the sentencing judge was
required to obtain his personal waiver of the right
to jury trial
As explained above, Malutin and the State
agreed that he would receive a sentence of 12 years
imprisonment with 7 years suspended. But under Alaskas
presumptive sentencing law, the superior court had no
authority to impose this negotiated sentence unless one
or more aggravating factors were proved. Accordingly,
to carry out the plea bargain, Malutin agreed to
concede aggravators (c)(5) (vulnerable victim) and
(c)(19) (prior delinquency adjudication for felony
conduct).
With respect to aggravator (c)(5), Malutin
now argues that it is unlawful to hold him to his
concession both because he was unaware of his right to
a jury trial on this aggravator, and because the
superior court relied on the defense attorneys
concession of this aggravator without ever addressing
Malutin personally to obtain his explicit waiver of the
right to jury trial.
In essence, Malutin asks us to overrule our
decisions in Lockuk and Cooper v. State, 153 P.3d 371
(Alaska App. 2007). In both Lockuk (which involved a
pre-Blakely sentencing) and Cooper (which involved a
post-Blakely sentencing), we held that a sentencing
court does not commit plain error by relying on a
defense attorneys concession of aggravating factors,
without obtaining the defendants personal concession
and waiver of jury trial regarding the aggravators.
Lockuk, 153 P.3d at 1016; Cooper, 153 P.3d at 372-73.
Our decisions in Lockuk and Cooper were
premised on the fact that courts around the country
have reached differing conclusions as to whether, in
light of Blakely, a sentencing judge can rely on a
defense attorneys concession of aggravating factors
without also addressing the defendant personally.
Because reasonable judges can (and do) differ on the
legality of this procedure under Blakely, any arguable
error in this procedure is not plain.12
In his brief to this Court, Malutin argues
that a post-sentencing attack on a negotiated sentence
would be an empty remedy if [a defense attorneys] prior
stipulations to aggravating factors were set in stone.
But this argument misses the point. We have never
ruled and we do not rule now that a defense attorneys
stipulation to aggravating factors is set in stone.
Rather, we hold that if a defendant wishes to attack
such a stipulation after the fact, the defendant must
present a valid ground for relief.
Here, Malutin claims that his attorneys
stipulation to aggravator (c)(5) is invalid as a matter
of law on the theory that, under Blakely, an attorney
has no authority to bind a client on such matters, and
that the sentencing court can not proceed without the
defendants express, in-court waiver of the right to
jury trial. To prevail on this claim, Malutin must
show plain error. And as we held in Lockuk and Cooper,
this procedure is not plain error. Therefore, Malutin
is not entitled to relief on this claim.
Malutins claim that there was no arguable factual or
legal basis for aggravator (c)(19)
In addition to aggravator (c)(5), Malutin
also stipulated to aggravator (c)(19). This aggravator
applies to defendants who have a prior delinquency
adjudication for conduct that would have been a felony
if committed by an adult. Malutin argues that there
was no factual or legal basis for this aggravator, and
that therefore his stipulation to this factor was
improper. See Love v. State, 799 P.2d 1343, 1346
(Alaska App. 1990), and Hartley v. State, 653 P.2d
1052, 1056 (Alaska App. 1982) both holding that,
despite the willingness of the parties to stipulate or
ignore the existence of aggravating and mitigating
factors, a sentencing court must independently evaluate
aggravators and mitigators.
Malutins argument does not really hinge on
the facts of his case, but rather on the legal meaning
of the phrase, conduct that would have been a felony if
committed by an adult.
The parties agree that Malutin was
adjudicated a delinquent minor because he committed the
offense of fourth-degree sexual abuse of a minor as
defined in AS 11.41.440(a)(1). In other words, at a
time when Malutin was younger than 16, he engaged in
sexual contact with a child who was younger than 13 and
who was at least three years younger than Malutin
himself.
Fourth-degree sexual abuse of a minor is a
misdemeanor, not a felony.13 Seemingly, then,
Malutins delinquency adjudication for this offense
could not support a finding of aggravator (c)(19).
The State, however, points out that if
Malutin had been an adult (i.e., if he had been 18 or
older), his sexual contact with a child under the age
of 13 would have been a class B felony the offense of
second-degree sexual abuse of a minor under
AS 11.41.436(a)(2). Based on this, the State contends
that Malutins delinquency adjudication was indeed
premised on conduct that would have been a felony if
committed by an adult.
Although the States suggested reading of the
statutory language might be plausible at first blush,
we must reject the States interpretation because it
leads to unfair and incongruous results.
The legislative policy behind all of the
aggravating factors listed in AS 12.55.155(c) is to
identify those factors that might distinguish a
particular defendants background or conduct from those
of a typical first, second, or third felony offender.14
With particular regard to aggravator (c)(19), the
legislatures apparent purpose was to allow a sentencing
court to increase the applicable presumptive term if
(1) the defendant was technically a first, second, or
third felony offender, but (2) the defendant had been
charged as a juvenile and adjudicated delinquent for
conduct that, but for the defendants youth, would have
been a felony.
The application of aggravator (c)(19) is
straightforward in cases where the defendants juvenile
offense was a crime that does not hinge on the
defendants age. But when the defendants age is an
element of the crime, the analysis becomes more
difficult.
Some conduct is a crime only if the defendant
is below a certain age. An example of this is under-
age drinking. Other conduct is criminal no matter how
old the defendant is, but it is a more serious crime if
the defendant is above a certain age. An example of
this is the conduct at issue in Malutins case engaging
in sexual contact with a person younger than 13 and at
least 3 years younger than the defendant. This conduct
is a misdemeanor (fourth-degree sexual abuse of a
minor) if the defendant is younger than 16,15 but a
felony (second-degree sexual abuse of a minor) if the
defendant is 16 or older.16 Finally, some conduct is
not a crime at all unless the defendant is above a
certain age. Examples of this are the current statutes
defining second- and third-degree sexual abuse of a
minor (consensual sexual penetration or contact with a
13-, 14-, or 15-year-old). Both of these offenses
require proof that the offender was at least 17 years
old and was also at least four years older than the
victim.17
This third category of offenses i.e., the
sexual offenses that require proof that the defendant
was at least a certain age most clearly demonstrates
the flaw in the States argument concerning the meaning
of aggravator (c)(19). The legislatures reason for
including the age requirement seems clear: the
legislature did not intend the sexual abuse statutes to
encompass consensual sex between teenagers of similar
ages. Thus, there is no crime if a 17-year-old engages
in consensual sexual intercourse or sexual contact
(e.g., genital touching) with a 14- or 15-year-old.
If, by chance, a juvenile who engaged in such
conduct were later to commit a crime as an adult, it
would seemingly make little sense for the State to ask
the court to impose a harsher sentence on the theory
that, if the defendant had only been older when he or
she engaged in sexual activity with another teenager,
the sexual activity would have been a crime. The fact
that the defendant previously engaged in non-criminal
sexual activity with another teenager of similar age
does not indicate anything about the defendants general
criminal propensity or dangerousness.
The States suggested interpretation of
aggravator (c)(19) is based on this same flawed
reasoning. The State argues that, even though a prior
act of sexual contact may only have been a misdemeanor
because of the ages of the two teenagers involved, that
act of sexual contact should nevertheless trigger
aggravator (c)(19) because the sexual contact would
have been a felony if the circumstances had been
different that is, if the defendant had been older.
But the defendant was not older. That is why
the offense is of lesser seriousness why the
legislature classified it as a misdemeanor.
At its heart, the States argument is
inconsistent with the policy that underlies the
legislatures creation of the aggravating factors in
AS 12.55.155(c). As we explained, the function of the
aggravating factors is to identify defendants who,
because of their history and/or their conduct in the
present case, potentially present a significantly
greater degree of danger or blameworthiness than a
typical first, second, or third felony offender
convicted of the same crime.
(Although proof of an aggravator does not
necessarily mean that the defendant should receive a
sentence greater than the applicable presumptive term,
proof of the aggravator expands the range of sentences
available to the judge when he or she exercises
sentencing discretion using the Chaney criteria.18)
Malutin was adjudicated delinquent for an act
of fourth-degree sexual abuse of a minor sexual
contact with a child who was under the age of 13, and
who was at least 3 years younger than Malutin. Because
this underlying conduct is a crime, one could argue
that this conduct tends to show that Malutin is more
dangerous or blameworthy than a typical felony offender
in his situation. But aggravator (c)(19) does not
encompass all delinquency adjudications for unlawful
conduct of any type. Rather, the legislature has
limited the aggravator to delinquency adjudications
based on conduct that would have been a felony if
committed by an adult.
For the reasons explained here, we interpret
this phrase to mean conduct defined as a felony in
other words, misconduct serious enough that the
defendant would have been subject to felony penalties
if the defendant had been tried and convicted under the
adult criminal justice system rather than the juvenile
justice system.
Fourth-degree sexual abuse of a minor is a
class A misdemeanor. Even if Malutin had been
prosecuted under the adult criminal justice system for
this crime, he could not have been convicted of a
felony. Thus, Malutins delinquency adjudication for
this offense could not serve as the factual predicate
for aggravator (c)(19).
Why this error does not entitle Malutin to relief
Even though we agree with Malutin that
aggravator (c)(19) was misapplied in his case, we
nevertheless conclude that he is not entitled to
rescission of his plea bargain. Malutin also
stipulated to aggravator (c)(5), and the existence of
any single aggravator was sufficient to establish the
superior courts authority to impose the negotiated
sentence.19
The only argument that Malutin raises against
aggravator (c)(5) is the argument we have already
rejected the argument that it was plain error for the
sentencing judge to rely on Malutins attorneys
concession of this aggravator without also personally
addressing Malutin himself and obtaining his express
waiver of the right to jury trial. Therefore, Malutins
sentence remains legal despite the error with respect
to aggravator (c)(19).
Malutin contends that we should not affirm
the superior courts decision on this basis because the
weight that the [sentencing] judge ... placed on the
[mistaken] applicability of aggravator (c)(19) can
never be determined. We disagree. The record is clear
that the sentencing judge placed no weight on this
individual aggravator.
Malutins stipulation to aggravators (c)(5)
and (c)(19) was an integral part of the plea agreement
because the negotiated sentence that Malutin agreed to
receive 12 years imprisonment with 7 years suspended
was legally impossible unless one or more aggravating
factors were proved. And because Malutins specific
sentence was agreed upon beforehand, the parties did
not intend for the sentencing judge to engage in a
weighing of the two aggravating factors, as if the
judge were conducting a typical sentencing. Rather,
the parties presented a specific proposed sentence to
the superior court, and the only question before the
court was whether to accept the agreed-upon sentence.
See Alaska Criminal Rule 11(e).
Either of the two aggravators would have been
enough, standing alone, to authorize the superior court
to impose the agreed-upon sentence, and the record does
not explain why the parties agreed that Malutin would
concede two. But there is nothing in the record to
suggest that the parties contemplated that the
sentencing judge would weigh these two aggravators
individually or, indeed, that the sentencing judge
would engage in any exercise of sentencing discretion
other than the decision whether to accept or reject the
agreed-upon sentence.
For these reasons, we conclude that the
superior court correctly rejected Malutins claim that
his sentence was illegal.
Malutins sentence appeal
In addition to the claims we have already
discussed, Malutin also argues that he received an
excessive sentence in the most recent probation
revocation proceedings.
After serving his initial 5 years of
imprisonment (less good time), Malutin was released on
probation. The State first petitioned the superior
court to revoke Malutins probation in August 14, 2000.
The States next revocation petition was filed in
February 2002. The States third petition was filed in
December 2002. The fourth petition was filed in
January 2005. The fifth (and current) petition to
revoke Malutins probation was filed in January 2006.
As a result of the first petition, Malutin
was ordered to serve six months of his previously
suspended jail time. As a result of the second
petition, Malutin was ordered to serve an additional 60
days of his sentence. As a result of the third
petition, the superior court sentenced Malutin to the
time he served awaiting the disposition hearing. And
as a result of the fourth petition, Malutin was ordered
to serve one more year of his sentence.
In response to the fifth petition to revoke
probation, Malutin informed the superior court that he
intended to reject any further probation supervision.
Malutin told the court that, if the court decided to
revoke his probation again, he wanted a flat-time
sentence. After reviewing Malutins record, and after
considering the arguments of the parties, Judge Aarseth
imposed all of Malutins remaining jail time.
Malutin contends that Judge Aarseth failed to
conduct a meaningful evaluation of Malutins sentence
under the Chaney sentencing criteria i.e., the
sentencing goals first enunciated in State v. Chaney20
and now codified in AS 12.55.005. Malutin further
contends that Judge Aarseth committed error by
reflexively imposing all of Malutins remaining jail
time simply because Malutin refused further probation
supervision.21
We have examined the record, and it does not
support Malutins claims.
As we have explained, Malutins probation had
been revoked several times prior to the current
revocation proceedings. We note, in particular, that
Malutin had failed to complete one of the significant
conditions of his probation: substance abuse
treatment.
Malutins alcohol abuse was pertinent to his
underlying crime, and to his prospects for
rehabilitation, because as Malutins attorney stated
his crime was committed at a time when he was clearly
intoxicated [and] out of control. Malutin began, but
then failed to complete, the required alcohol
treatment. He participated in the in-patient portion
of the treatment, but then he was terminated from [the]
aftercare [program] for noncompliance. In addition,
while on probation, Malutin committed the offense of
reckless driving, and he consumed alcoholic beverages.
The superior court also properly considered
the seriousness of Malutins underlying crime and the
consequent community condemnation of his actions.
Although Malutin negotiated a plea to a reduced charge
of attempted first-degree sexual abuse of a minor, his
conduct apparently constituted the more serious crimes
of first-degree sexual assault and first-degree
burglary. Malutin broke into a house in the middle of
the night and sexually attacked an eight-year-old girl
who was sleeping inside.
The sentencing record shows that Judge
Aarseth engaged in a lengthy consideration of the
Chaney factors. Judge Aarseth noted that the probation
conditions required by Malutins plea agreement were not
just for [the benefit of] Mr. Malutin, but for the
public [as well]. The judge also noted that, because
Malutin had decided to reject further probation
supervision, he posed a greater danger of recidivism in
the future:
The Court: [I]n terms of Mr. Malutins
successes [on probation] and the nature of
his violation ... , [his] supervised
probation [acts as] a deterrent ... [to]
other violations[, and] more serious
violations.
. . .
[T]he public has a right to have
[Malutin] submit to probation. And if [he
doesnt] want to, then [the sentencing
criterion of] community condemnation [becomes
more significant]. The rest of the suspended
time gets imposed.
Judge Aarseth concluded that the criteria of
isolation and community condemnation called
for impos[ition of] the remainder of Mr.
Malutins time.
Malutin argues that Judge Aarseths
final comments his repeated conclusion that
the remainder of Malutins jail time should be
imposed indicate that the judge failed to
consider the Chaney criteria as a whole, and
that he instead made his decision based
solely on the criteria of isolation and
community condemnation.
But Judge Aarseth did not make
these comments in isolation. Earlier in the
sentencing hearing, the judge engaged in a
lengthy dialog with Malutins attorney
concerning Malutins treatment record and the
proper response to Malutins decision to
reject further probation.
In addition, at the very end of his
sentencing remarks, Judge Aarseth expressly
addressed the question of whether the
entirety of Malutins remaining jail term
should be imposed and the judge clarified
that he had not reflexively imposed all of
Malutins remaining jail time:
The Court: [T]here shouldnt be [any]
mistake [as to whether] Ive walked into this
case [already] knowing that I was simply
going to flat-time Mr. Malutin or [thinking]
that thats simply what you do, and there is
no other choice. I dont believe thats what Im
doing. I think [the] record [rebuts] that
... .
We are convinced that Judge Aarseth
engaged in an appropriate consideration of
the facts of Malutins case under the Chaney
criteria (including Malutins refusal to
submit to further probation supervision), and
we conclude that his decision to impose the
remainder of Malutins term of imprisonment is
not clearly mistaken. We therefore uphold
Malutins sentence.22
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 The completed crime of first-degree sexual abuse of a minor
is an unclassified felony, see AS 11.41.434(b), so an attempt to
commit this crime is a class A felony. See AS 11.31.100(d)(2).
2 Former AS 12.55.125(c)(1) (pre-March 2005 version).
3 Former AS 12.55.125(g) and former AS 12.55.155(a) (pre-March
2005 versions); Milligrock v. State, 118 P.3d 11, 14 (Alaska App.
2005).
4 See Blakely, 542 U.S. at 301, 124 S.Ct. at 2536.
5 It still remains unresolved as of today. See State v.
Smart, Supreme Court File No. S-12493; petition filed
November 13, 2006; petition granted February 13, 2007.
6 See Supreme Court Order No. 439 (effective November 15,
1980).
7 See the first two paragraphs of the 1980 commentary to Rule
507.
8 See, e.g., Boldin v. State, 2008 WL 4958294, *1 (Ark.
November 20, 2008) (Where [a defendants judgment] of
conviction [has been] affirmed on appeal, Arkansas Rule of
Criminal Procedure Rule 37.2(c) requires that [a defendants]
petition for postconviction relief be filed within sixty
days of the issuance of the appellate courts mandate.);
Robbins v. State, 992 So.2d 878, 879 (Fla. App. (5th Dist.)
2008) (noting that, under Florida Rule of Criminal Procedure
3.800(c), a court may reduce or modify a sentence within
sixty (60) days after imposition of the sentence or after
receipt by the court of a mandate issued by the appellate
court on affirmance of the judgment and/or sentence on an
original appeal.); State v. Snow, 195 P.3d 282, 286 (Kan.
App. 2008) (noting that, under Kansas law, the intermediate
court of appeals can interpret, and can review a trial
courts compliance with, a mandate issued by the Kansas
Supreme Court); Jackson v. State, __ A.2d __, 2008 WL
4726286, *2 (Md. App. October 29, 2008) (quoting a Maryland
statute which, by its terms, applies to all cases in the
Court of Special Appeals in which the mandate has not been
issued as of the effective date of this Act.); In re Shah,
__ So.2d __, 2008 WL 4427951, *3 n. 5 (Miss. October 2,
2008) (noting that, [p]ursuant to Mississippi Rule of
Appellate Procedure 41(a), the mandate of the Supreme Court
shall issue seven days after entry of the order denying the
motion for rehearing.); State v. Hausmann, __ N.W.2d __,
2008 WL 4853640, *4 (Neb. App. November 10, 2008) (noting
that, under Nebraska law, an appellate courts jurisdiction
over a case ends when the [lower] court acts on the
[appellate] courts mandate); In re K.Y., __ S.W.3d __, 2008
WL 4809548, *3 (Tex. App. (14th Dist.) November 6, 2008)
(holding that a trial court is not deprived of jurisdiction
by the filing of an interlocutory appeal, and thus the trial
court has the authority to proceed with a trial even before
the appellate court issues its mandate in the interlocutory
appeal).
9 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
Federal Practice and Procedure: Jurisdiction and Related
Matters (3rd ed. 1999), 3987, Vol. 16A, pp. 735-36.
10 According to records informally kept by this Court over
the past 15 years, the average elapsed time is 525 days
(slightly under 1 years) between the order granting a
petition for hearing and the supreme courts issuance of
an opinion resolving the petition. In some instances,
the supreme court has taken more than three years to
decide the case. See State v. Coon, File No. S-6893 (3
years 9 months); State v. Blank, File No. S-9721 (3
years 8 months); Martin v. State, File No. S-10139 (3
years 2 months); Munson v. State, File No. S-10444 (3
years 7 months).
11 See Walsh v. State, 134 P.3d 366, 373-74 (Alaska App.
2006) (holding that Criminal Rule 35(a) is a proper
procedural vehicle for raising a Blakely attack on a
sentence).
12Lockuk, 153 P.3d at 1016; Cooper, 153 P.3d at 373.
13See AS 11.41.440(b).
14See Petersen v. State, 930 P.2d 414, 439 (Alaska App.1996);
Juneby v. State, 641 P.2d 823, 833, 835 (Alaska App. 1982),
modified on other grounds, 665 P.2d 30 (Alaska App. 1983).
15AS 11.41.440(a)(1).
16AS 11.41.436(a)(2).
17See AS 11.41.436(a)(1) (second-degree sexual abuse of a
minor); AS 11.41.438(a) (third-degree sexual abuse of a
minor).
18See Juneby v. State, 641 P.2d 823, 833, 835, 838 (Alaska
App. 1982), as modified on rehearing, 665 P.2d 30, 32-33
(Alaska App. 1983).
19See Cleveland v. State, 143 P.3d 977, 987 (Alaska App. 2006)
(holding that, under Alaskas pre-March 2005 presumptive
sentencing law, the proof of any single Blakely-compliant
aggravating factor was sufficient to satisfy Blakely).
20477 P.2d 441, 443-44 (Alaska 1970).
21See DeMario v. State, 933 P.2d 558, 962 (Alaska 1997)
(holding that, when a defendant refuses probation, the
sentencing judge [must] not automatically impose all [of the
defendants] previously suspended time but must carefully
evaluate the case under the Chaney criteria and then impose
a sentence based on the totality of circumstances).
22 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to uphold a sentencing decision
unless the sentence is clearly mistaken).
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