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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DWAYNE EUGENE WEST,
Petitioner Court of Appeals No. A-10150
, Trial Court No. 3AN-05-12292 Cr
v.
O P I N I O N
STATE OF ALASKA,
No. 2252 January 22, 2010
Respondent
.
End of Caption
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Patrick
J. McKay, Judge.
Appearances: Krista Maciolek, Assistant
Public Advocate, Palmer, and Rachel Levitt,
Public Advocate, Anchorage, for the
Petitioner. Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
The defendant in this case, Dwayne Eugene West, was
found guilty of first-degree robbery following a jury trial, but
he has not yet been sentenced. First-degree robbery is a class A
felony,1 and West is a first felony offender for purposes of
Alaskas | presumptive sentencing law. Under the applicable sentencing statute, AS 12. 55.125(c | ), Wests presumptive sentencing range hinges on whether he personally possessed or used a firearm during the commission of the offense. West faces a sentencing range of 5 to 8 years if he did not carry a firearm, but a sentencing range of 7 to 11 years if he carried a firearm.2 |
| In a pre-sentencing pleading, West asserted that he had a Sixth Amendment right to jury trial with respect to this issue of fact. The superior court agreed that, under Blakely v. Washington,3 West was entitled to a jury trial on the question of whether he personally carried a firearm during the robbery because, if this issue were decided in the governments favor, West would face a higher presumptive sentencing range. | |
| But when the superior court offered West a jury trial on this issue, West responded that any renewal of the proceedings would violate the double jeopardy clause. West asserted that the superior court was obliged to sentence him within the lower presumptive range, as if the government had attempted but had failed to prove that he personally carried a firearm. When the superior court rejected Wests double jeopardy argument and, instead, ordered a jury trial on the disputed sentencing factor, West petitioned this Court to review the superior courts ruling, and we granted review. | |
| We now hold that, in this situation, it does not violate the double jeopardy clause to hold a jury trial on the disputed factual issue. | |
A more detailed explanation of the facts
of this case
West and four co-defendants were brought to
trial on six counts of first-degree robbery (one count
for each of six victims) and seven counts of third-
degree assault (again, one count for each of seven
victims).4 West was convicted of these crimes, but (as
we have explained) West raised a Blakely issue and a
double jeopardy issue while he was awaiting sentencing
and, thus, he has not yet been sentenced.
For the offense of first-degree robbery, West
faces a presumptive sentencing range of 7 to 11 years
imprisonment if he personally carried a firearm during
the robberies. See AS 12.55.125(c)(2)(A). In
contrast, West faces a lesser presumptive range 5 to 8
years imprisonment if he did not personally carry a
firearm during the robberies. See AS 12.55.125(c)(1).5
(See Dailey v. State, 675 P.2d 657, 661-62
(Alaska App. 1984), where this Court held that, even
though a defendant can be convicted of armed robbery
based on an accomplices use or possession of a firearm,
the enhanced presumptive term provided in subsection
(c)(2)(A) applies to the defendants sentencing only if
the defendant personally used or possessed the
firearm.)
The problem in Wests case arises from the
fact that Wests trial jury was not asked to decide
whether West personally carried a firearm. The jurys
verdicts simply state that the jurors found West guilty
of first-degree robbery.
The jury was instructed, in pertinent part,
that one element of first-degree robbery was that in
the course of [the] taking or attempted taking [of
property], or [in the] immediate flight after the
taking [or] attempted taking, the defendant or another
participant was armed with a deadly weapon. Thus, the
jurys verdicts represent a finding that, among West and
his cohorts, at least one of them carried a firearm,
but the verdicts do not identify which of the robbers
were armed.
In her pre-sentencing memorandum, Wests
attorney took the position that West had to be
sentenced using the lower presumptive range (i.e., 5 to
8 years). The defense attorney argued that, under
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004), West was entitled to have a
jury decide the factual issue of whether West
personally carried a firearm during the robberies. The
defense attorney further argued that, because the jury
had not been asked to decide this issue of fact, the
superior court was required to sentence West as if the
jury had decided this issue in Wests favor.
The State responded by arguing that West was
subject to the higher sentencing range (i.e., 7 to 11
years) because Blakely was satisfied, even without a
specific jury verdict on this factual issue. The State
pointed out that the evidence at trial clearly showed
that West had carried a firearm, and that Wests
attorney (in arguing the case to the jury) had
essentially conceded this fact.
The trial judge, Superior Court Patrick J.
McKay, agreed with the defense position that, under
Blakely, West was entitled to have a jury decide this
issue of fact. At the same time, Judge McKay agreed
with the States assertion that Wests attorney had
essentially conceded this factual issue during the
trial, and that, in any event, the evidence presented
at the trial established beyond a reasonable doubt that
West had carried a firearm. Nevertheless, Judge McKay
concluded that if West now wanted a jury decision on
this issue, there was still time to give him one (since
final judgement had not yet been entered).
Rejecting Wests contention that any renewed
litigation of this issue would violate the double
jeopardy clause, Judge McKay decided to call a new jury
to decide the question of whether West personally
carried a firearm during the robberies.
West petitioned this Court to review the
judges ruling. We granted review and ordered briefing.
Why we agree with the superior court that West is
entitled to a jury trial on the issue of whether he
carried a firearm during the robbery
Under the pre-2005 version of Alaskas
presumptive sentencing law, a felony defendants
applicable presumptive term normally hinged on the
number of the defendants prior felony convictions. See
former AS 12.55.125(c), (d), (e), and (i). There was
one exception to this rule: former AS 12.55.125(c)(2)
specified an enhanced presumptive term for a first
felony offender convicted of a class A felony if the
defendant carried a firearm during the commission of
the offense, or caused serious physical injury to a
person, or knowingly directed their conduct against a
police officer, fire fighter, corrections officer, or
emergency responder.
Once the defendants presumptive term was
ascertained, a sentencing judge had the authority to
depart from that presumptive term based on the
aggravating and mitigating factors listed in
AS 12.55.155(c) and (d).
In that pre-2005 law, the legislature
specified that the sentencing judge would determine the
number of the defendants prior felony convictions and
would also determine aggravating factors. The
legislature further specified that, when these issues
were disputed, the applicable burden of proof for prior
felony convictions was beyond a reasonable doubt, while
the burden of proof for aggravating factors was clear
and convincing evidence. See former AS 12.55.145(d)
and AS 12.55.155(f), respectively.
However, the legislature failed to specify
the burden of proof that applied to the sentence
enhancement factors listed in AS 12.55.125(c)(2) for
first felony offenders convicted of a class A felony.
In Huf v. State, 675 P.2d 268 (Alaska App. 1984), this
Court was asked to clarify this aspect of presumptive
sentencing law. We concluded that, because the factors
listed in 125(c)(2) performed the same function as a
defendants prior felony convictions (that is, because
the presence or absence of these factors determined the
applicable presumptive term of imprisonment), these
factors should be governed by the same burden of proof
that applied to prior felony convictions: proof beyond
a reasonable doubt. Huf, 675 P.2d at 273-74. Seven
years ago, the State asked us to re-examine this
question, and we re-affirmed our decision in Huf. See
Tuttle v. State, 65 P.3d 884, 891 (Alaska App. 2002).
We decided one further issue in Huf. The
defendant in Huf argued that the factors listed in AS
12.55.125(c)(2) were actually elements of his offense,
and thus he was entitled to litigate these factors to a
jury (rather than to the sentencing judge). We
rejected this contention. We held that
AS 12.55.125(c)(2) was not an addendum to the
definition of all class A felonies, but was rather a
true sentencing provision and, thus, a sentencing
judge could resolve disputes concerning the sentence
enhancement factors listed in AS 12.55.125(c)(2) just
as the judge could resolve disputes concerning the
defendants prior felony convictions. Huf, 675 P.2d at
271-73.
See also Burks v. State, 706 P.2d 1190, 1192
(Alaska App. 1985), where we stated that these sentence
enhancement factors operate independently of the
elements of the underlying offense.
In March 2005, the Alaska Legislature amended
the presumptive sentencing law in an attempt to comply
with the Sixth Amendment right to jury trial announced
by the United States Supreme Court in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004). For purposes of litigating the aggravating
factors listed in AS 12.55.155(c), the legislature
divided these factors into two groups, depending on the
legislatures assessment of whether the Blakely right to
jury trial applied to a particular aggravating factor.
Under the current version of AS 12.55.155(f),
some aggravating factors the ones covered by
subsection (f)(2) must be litigated to a jury and
proved beyond a reasonable doubt. The remaining
aggravating factors the ones listed in subsection
(f)(1) are still governed by the old rule: they are
litigated to the sentencing judge, and the burden of
proof remains clear and convincing evidence.
Again, however, the legislature failed to
specify the identity of the fact-finder (sentencing
judge or jury) who would resolve disputes concerning
the sentence enhancement factors listed in AS
12.55.125(c)(2), and the legislature likewise failed to
specify the burden of proof that would govern that
litigation.
This second omission (the legislatures
failure to specify a burden of proof) is not critical,
because our decision in Huf requires the same burden of
proof that Blakely requires: proof beyond a reasonable
doubt. But the legislatures first omission its
failure to specify the identity of the fact-finder is
much more important.
As we have already explained, in Huf we
rejected the contention that defendants were entitled
to a jury trial on the sentence enhancement factors
listed in AS 12.55.125(c)(2). This aspect of Huf needs
to be re-examined in light of Blakely.
Both parties to this appeal agree that Judge
McKay reached the correct resolution of this issue when
the judge concluded that, under Blakely, West is
entitled to a jury trial on the issue of whether he
carried a firearm during the robbery. We, too, agree
that the Blakely right to jury trial applies to the
factors listed in AS 12.55.125(c)(2).
This is not because we view these factors as
elements of class A felonies. We stand by what we said
in Huf and Burks: these factors are true sentencing
factors. But as we explained in State v. Dague, 143
P.3d 988 (Alaska App. 2006), the Blakely right to jury
trial regarding a particular issue of fact does not
hinge on whether that issue of fact is classified as an
element or a sentencing factor under state law.
Rather, a defendants right to jury trial hinges on the
consequences of resolving that issue of fact in the
governments favor. 143 P.3d at 999-1000. If
resolution of the issue of fact in the governments
favor means that the defendant will face a greater
maximum sentence, or a higher presumptive term or
presumptive range of imprisonment, then, under Blakely,
the defendant has a right to jury trial on that issue.
Id. at 1002.
If the sentence enhancement factors listed in
AS 12.55.125(c)(2) are resolved in the governments
favor, a defendant is subjected to a higher presumptive
range of imprisonment than the defendant would
otherwise face as a first felony offender convicted of
a class A felony. Accordingly, the Blakely right to
jury trial applies to these factors.
Why we conclude that it does not violate the double
jeopardy clause to convene a new jury to decide the
question of whether West carried a firearm during the
robbery
As we explained above, Alaskas presumptive
sentencing statutes specify the procedures and the
applicable standards of proof for litigating a
defendants prior felony convictions and for litigating
the aggravating and mitigating factors listed in
AS 12.55.155(c) and (d), but the presumptive sentencing
statutes do not specify a procedure for litigating the
sentence enhancement factors listed in AS 12.55.
125(c)(2), nor do they specify a standard of proof to
govern that litigation.
Up until now, the law on these subjects was
contained in this Courts decisions in Huf and Tuttle.
Under Huf and Tuttle, the sentence enhancement factors
were to be decided by the sentencing judge, and the
applicable burden of proof was beyond a reasonable
doubt.
In the superior court, West challenged this
law; he asserted that the Blakely right of jury trial
applied to the sentence enhancement factors listed in
AS 12.55.125(c)(2) and that, therefore, the factual
issue of whether he personally carried a firearm during
the commission of the robbery had to be decided by a
jury rather than by the superior court at the
sentencing hearing. Judge McKay agreed with West and
ordered a jury trial on the disputed factual issue
leading to this appellate litigation, because West
takes the position that any new proceedings would
subject him to a second jeopardy in violation of the
double jeopardy clause.
West analogizes his situation to a case in
which the State neglects to seek a jury verdict on a
necessary element of the defendants crime, and then
asks for a second trial to rectify this error.
According to West, any second trial in these
circumstances will violate the double jeopardy clause.
This argument is mistaken for two reasons.
The first flaw in Wests argument is that,
even if we were ready to overturn existing precedent
our decisions in Huf and Burks and hold that Wests
personal possession of a firearm was an essential
element of his offense, the double jeopardy clause
would not bar the State from trying West a second time
to rectify the fact that Wests trial jury was not
instructed on this additional element of the offense.
In Steve v. State, 875 P.2d 110 (Alaska App.
1994), we explained the general rule that applies to
situations where a defendant attacks a criminal
conviction on the ground that the trial jury was not
asked to decide all the necessary elements of the
offense:
[I]f the defendant convinces an appellate
court that the trial court adopted an
erroneous definition of the offense or
misallocated the burden of proof, this
conclusion necessarily undermines the
assumption that the government had its fair
day in court. We can not know what evidence
the State might have presented at [the
defendants] trial if it had known [the true
elements of the offense or had known that]
the State bore the burden of proof on the
[disputed] issue[.]
Steve, 875 P.2d at 115. Thus, if the
defendant prevails on such a motion, the
defendant is entitled to a new trial, not an
outright acquittal. Id.
We applied this rule in Hurd v.
State, 22 P.3d 12 (Alaska App. 2001). The
defendant in Hurd was convicted of kidnapping
and coercion. He argued on appeal that the
jury had not been instructed on a necessary
element of kidnapping: the requirement that
the restraint that formed the basis of the
kidnapping charge had to be distinct from the
restraint that was incidental to the
accompanying charge of coercion. Hurd, 22
P.3d at 19-20. We agreed that the jury had
not been properly instructed on the type of
restraint required to support a separate
kidnapping conviction, and we therefore
reversed Hurds kidnapping conviction but we
ruled that [t]he State [could] try Hurd again
for this crime. Id. at 20.
We also applied this rule in
Collins v. State, 977 P.2d 741 (Alaska App.
1999). The defendant in Collins was
convicted of second-degree weapons
misconduct, AS 11.61.195(a)(1), for
possessing a firearm during the commission of
a felony drug offense. The jury was
instructed that Collins could be convicted
based simply on the fact that he possessed a
firearm (hidden under his mattress) at the
same time that he committed a felony drug
offense.6 We held that this offense required
proof of an additional essential element: an
articulable nexus between the defendants
possession of the firearm and the defendants
commission of the felony drug offense.7
Nevertheless, we held that Collins was not
entitled to an acquittal, but rather to a new
trial at which the State would be given the
opportunity to prove the required nexus.
Collins, 977 P.2d at 752.
In other words, if the flaw in
Wests case had been that the jury
instructions omitted or misdefined an
essential element of the offense of first-
degree robbery, West would not be entitled to
claim an acquittal under the double jeopardy
clause. Rather, he would be entitled to a
new trial.
This same rule applies to
situations where the elements of the offense
are properly defined, but the trial judge
erroneously removes one of the elements from
the jurys consideration and decides this
element him- or herself. In United States v.
Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132
L.Ed.2d 444 (1995), the defendant was accused
of violating 18 U.S.C. 1001 by making false
statements on Department of Housing and Urban
Development loan documents. This federal
statute required proof that the defendants
false statements were material to the
activities or decisions of the Department.8
The trial judge mistakenly concluded that the
question of materiality was to be decided by
the court rather than by the jury. The trial
judge then instructed the jurors,
The issue of materiality ... is not
submitted to you for your decision[,] but
rather is a matter for the decision of the
court. You are instructed that the
statements charged in the indictment are
material statements.
Gaudin, 515 U.S. at 508, 115 S.Ct. at 2313.
Even though Gaudins trial attorney
did not object to this jury instruction, a
panel of the Ninth Circuit concluded that
this instruction was plain error because the
court concluded that, under its precedents,
the element of materiality was clearly a jury
issue.9 The Ninth Circuit, sitting en banc,
affirmed the panels decision.10 The
government then successfully petitioned the
Supreme Court to hear the case, but the
Supreme Court affirmed the Ninth Circuits
conclusion that a defendant charged with
violating 18 U.S.C. 1001 had the right to
trial by jury on the element of materiality.
Gaudin, 515 U.S. at 522-23, 115 S.Ct. at
2320.
For present purposes, the
significant aspect of Gaudin is not its
holding that federal defendants are entitled
to a jury determination on whether a false
statement is material. Rather, the
significant aspect of Gaudin is the remedy
that the defendant received for the trial
judges error of removing this element of the
offense from the jurys consideration. Gaudin
did not receive an acquittal, but rather a
new trial. See United States v. Gaudin, 997
F.2d 1267, 1273 (9th Cir. 1993) (the three-
judge panel decision), United States v.
Gaudin, 28 F.3d 943, 952 (9th Cir. 1994) (the
en banc decision).
The second flaw in Wests argument
is that, under Alaska law, it is clear that
the issue of whether West personally carried
a firearm during the commission of the
robbery is not an element of the first-degree
robbery charge.
Under the pertinent portion of the
first-degree robbery statute, AS 11.41.
500(a)(1), the State was required to prove
only that West or any other participant in
the robbery was armed with a deadly weapon.
This finding was sufficient to establish
Wests guilt of the crime.
True, the question of whether West
will face the higher or lower presumptive
sentencing range for this crime hinges on
whether West personally carried a firearm
during the robbery. But as we declared in
Huf and Burks, the sentence enhancement
factors listed in AS 12.55.125(c)(2) are not
elements of all the underlying class A
felonies to which the statute applies.
This fact that the sentencing
enhancement factors listed in AS 12.55.
125(c)(2) are not elements of Wests offense
distinguishes Wests case from the decisions
in Steve, Hurd, Collins, and Gaudin. In
those cases, the underlying problem was that,
because of errors in the definition of the
offense or errors in procedure, the jury
failed to render a verdict on every necessary
element of the offense. Here, the situation
is different. A properly instructed jury has
found West guilty of first-degree robbery,
and the question is whether he will face a
presumptive sentencing range of 5 to 8 years
imprisonment or 7 to 11 years imprisonment.
Under Alaskas pre-existing law on
this point that is, under our decisions in
Huf and Tuttle the issue of whether West
personally carried a firearm during the
robbery was an issue to be resolved by the
sentencing judge. Wests attorney believed,
based on the United States Supreme Courts
decision in Blakely, that West was entitled
to a jury trial on this factual issue, and
that it was now unconstitutional for the
sentencing judge to resolve this factual
issue. As we explained earlier in this
opinion, we agree that this view of the law
is correct. But Wests attorney did not raise
this issue until after Wests trial was over,
when the parties were awaiting sentencing.
If West had not raised this Blakely
issue until after he was sentenced that is,
if West had raised this jury trial claim for
the first time on appeal, as a claim of plain
error we would not have ordered the superior
court to resolve the disputed sentencing
factor in Wests favor. Rather, we would have
remanded Wests case to the superior court for
a jury trial on the disputed sentencing
factor (unless we concluded that, given the
trial evidence, it was clear that no
reasonable jury could resolve this issue of
fact in Wests favor).11
Similarly, if West had raised his
jury trial claim before or during his trial,
and if the trial judge (relying on Huf) had
refused to allow the trial jury to decide the
question of whether West personally carried a
firearm during the robbery, we would have
reversed and directed the superior court to
grant West a jury trial on this sentencing
factor but we would not have ordered the
superior court to resolve the disputed
sentencing factor in Wests favor.
Wests procedural situation is
different from either of these examples. He
raised his jury trial claim after his trial
was over, but before his sentencing.
Nevertheless, we perceive no significance in
this procedural distinction.
West has argued convincingly that
he is entitled to a jury trial on the issue
of whether he personally possessed a firearm
during the robbery and that Alaskas existing
procedure for litigating this issue (i.e.,
the procedure we adopted in Huf and Tuttle of
having the issue resolved by the sentencing
judge) is unconstitutional under Blakely.
The remedy for this error is to have a jury
decide the disputed sentencing factor. Judge
McKay therefore acted properly when he
ordered this remedy.
The decision of the superior court
is AFFIRMED.
_______________________________
1 AS 11.41.500(b).
2 Compare AS 12.55.125(c)(1) and AS 12.55.125(c)(2)(A).
3 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
4 AS 11.41.500(a)(1) and AS 11.41.220(a)(1), respectively.
5 Here are the pertinent portions of AS 12.55.125(c):
[A] defendant convicted of a class A felony may be sentenced
to a definite term of imprisonment of not more than 20
years, and shall be sentenced to a definite term within the
following presumptive ranges, subject to adjustment as
provided in AS 12.55.155 12.55.175:
(1) if the offense is a first felony conviction and does
not involve circumstances described in (2) of this
subsection, five to eight years;
(2) if the offense is a first felony conviction ... and
the defendant possessed a firearm, used a dangerous
instrument, or caused serious physical injury or death
during the commission of the offense, or knowingly directed
the conduct constituting the offense at a uniformed or
otherwise clearly identified peace officer, fire fighter,
correctional employee, emergency medical technician,
paramedic, ambulance attendant, or other emergency responder
who was engaged in the performance of official duties at the
time of the offense, seven to 11 years[.]
6Collins, 977 P.2d at 751 (Mannheimer, J.,concurring).
7Id. at 753 (Mannheimer, J., concurring).
8Id., 515 U.S. at 508, 115 S.Ct. at 2313.
9See United States v. Gaudin, 997 F.2d 1267, 1271-73 (9th
Cir. 1993).
10 See United States v. Gaudin, 28 F.3d 943, 944 (9th Cir.
1994) (en banc).
11 See Washington v. Recuenco, 548 U.S. 212, 219-222; 126
S.Ct. 2546, 2551-
53; 165 L.Ed.2d 466 (2006), and Lockuk v. State, 153 P.3d 1012,
1016-17 (Alaska App. 2007), both holding that if a
Blakely error is harmless beyond a reasonable doubt
that is, if there is no reasonable possibility that a
jury would have found in the defendants favor if the
issue had been submitted to a jury then the error does
not require alteration or vacation of the defendants
sentence.
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