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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSHUA S. TWOGOOD,
Appellant, Court of Appeals No. A-10426
Trial Court No. 4FA-99-1370 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2254 February 5, 2010
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: Jason A. Gazewood, Gazewood &
Weiner, Fairbanks, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
This appeal is a sequel to our decision in Twogood v.
State, 196 P.3d 1109 | (Alaska App. 2008 | ). In that earlier decision, we resolved a dispute concerning the date on which Twogood became eligible to apply for discretionary parole, and we directed the superior court to amend Twogoods written judgement to reflect our ruling. In the current appeal, Twogood raises various challenges to the proceedings that occurred in the superior court following our earlier decision. |
Underlying facts: the
indictment, the plea bargain, and the first appeal
In 1999, Joshua S. Twogood was indicted on
eight different felony counts: two counts of attempted
murder (Counts I and II), five counts of first-degree
sexual assault (Counts III through VII), and one count
of kidnapping (Count VIII). These charges were
resolved when Twogood reached a plea agreement with the
State. Under the terms of this plea agreement, Twogood
would plead no contest to Count I (attempted murder)
and Count III (first-degree sexual assault), and the
State would dismiss the other charges. Twogood and the
State agreed that Twogood would receive a composite
sentence of 20 years to serve, with the sentencing
judge having the discretion to impose additional
suspended jail time.
One of Twogoods sentences his sentence for
first-degree sexual assault was governed by Alaskas
presumptive sentencing law. As a first felony
offender, Twogood faced an 8-year presumptive term of
imprisonment for this offense.1 (Twogood faced an
indeterminate sentence of 5 to 99 years for the
attempted murder.2)
In connection with Twogoods sentencing for
the sexual assault, the State proposed several
aggravating factors under AS 12.55.155(c): (c)(1)
that his victim sustained physical injury; (c)(2) that
Twogood manifested deliberate cruelty during the
offense; (c)(18)(A) that Twogood committed the offense
against a member of his household (his spouse); and
(c)(18)(B) that Twogood had engaged in prior sexual
assaults against the same victim.
Twogood opposed most of these aggravating
factors, but he conceded aggravator (c)(18)(A) (i.e.,
that the offense was committed against a member of his
household). Under Alaskas presumptive sentencing law,
even if the State failed to prove the other proposed
aggravating factors, Twogoods concession of this one
aggravating factor authorized the superior court to
exceed the 8-year presumptive term of imprisonment for
the sexual assault.3 The superior court did, however,
find that the State had proved its other proposed
aggravators.
In August 2000, pursuant to the plea bargain
(and pursuant to its rulings on the aggravating
factors), the superior court entered judgement against
Twogood for attempted murder and first-degree sexual
assault. For the attempted murder, the superior court
sentenced Twogood to 20 years imprisonment with 5 years
suspended (15 years to serve). For the sexual assault,
the court sentenced Twogood to 14 years imprisonment
with 4 years suspended (10 years to serve).
To comply with the parties agreement that
Twogood would receive a composite sentence of 20 years
to serve, the sentencing judge declared that these two
sentences would be partially consecutive, giving
Twogood a total of 20 years in prison (with an
additional 9 years suspended).
After the judge announced this sentence, both
the prosecutor and the defense attorney asked the judge
to specify the order of Twogoods sentences i.e., to
specify whether Twogoods composite 20 years in prison
was to consist of a 10-year sentence for sexual assault
followed by a consecutive 10 years for attempted murder
or, conversely, whether Twogood was to serve 15 years
for attempted murder followed by a consecutive 5 years
for sexual assault. But even though both parties
sought this clarification, the sentencing judge refused
to specify the precise way in which Twogoods two
sentences added up to the composite 20 years to serve.
The judge concluded (erroneously) that this kind of
specificity was not required because it made no
difference to Twogoods total penalty or to Twogoods
parole eligibility.
Twogood filed an appeal of the superior
courts sentencing decision. See Twogood v. State,
Alaska App. Memorandum Opinion No. 4600 (July 24,
2002), 2002 WL 1627474 hereafter, Twogood I. In that
appeal, Twogood attacked most of the superior courts
rulings on the aggravating factors. However, he did
not challenge the superior courts finding of aggravator
(c)(1) (that the victim suffered physical injury).
Moreover, as we previously explained, Twogood conceded
aggravator (c)(18)(A) during the sentencing proceedings
in the superior court. We affirmed the superior courts
judgement.
Underlying facts: Twogoods second appeal, in which he
sought clarification of the order in which he was to
serve his two sentences
Another issue that went unchallenged in
Twogoods initial appeal was the superior courts refusal
to specify the order of Twogoods two sentences.
Several years later, however, Twogood perceived that
the order of his sentences might affect his parole
eligibility date, so he asked the superior court to
issue an order clarifying this matter.
By that time, Twogoods original sentencing
judge had retired, so the case was assigned to another
judge, Superior Court Judge Randy M. Olsen. Judge
Olsen declined to further clarify Twogoods sentences;
he concluded that the calculation of Twogoods parole
eligibility date was a matter entrusted solely to the
Department of Corrections. Twogood then appealed the
superior courts refusal to take action.
In Twogood v. State, 196 P.3d 1109 (Alaska
App. 2008) hereafter, Twogood II we concluded that
Twogoods parole eligibility date did, indeed, hinge on
which of his two sentences was the initial or primary
sentence (i.e., the sentence to be served in full) and
which one was the partially concurrent sentence. 196
P.3d at 1114. We then ruled that, because Twogoods
original sentencing judge had refused to clarify this
issue when the sentences were imposed, we were obliged
to construe the ambiguity in Twogoods favor i.e., to
interpret the superior courts judgement in the manner
that gave Twogood the earlier parole eligibility date.
Id. This meant treating Twogoods 10-year sentence for
sexual assault as his primary sentence, followed by a
partially concurrent sentence of 15 years for attempted
murder. Id. at 1115.
We then directed the superior court to amend
Twogoods written judgement so that it reflected our
construction of Twogoods sentences. Id.
Underlying facts: the proceedings in the superior
court following our decision
Our decision in Twogood II was issued on
November 21, 2008. Under Alaska Appellate Rule 303(a),
the State had fifteen days to ask the supreme court to
review our decision, but the State did not do so.
Thus, pursuant to Alaska Appellate Rules 507(b) and
512(a)(2)[a], our decision took effect on Monday,
December 8, 2008. Six weeks later, on January 23,
2009, Judge Olsen signed an amended judgement which, in
effect, declared that Twogoods sexual assault sentence
was his primary sentence, and that Twogoods attempted
murder sentence was partially concurrent with (and
partially consecutive to) the sexual assault sentence.
After Judge Olsen distributed this amended
judgement to the parties, Twogood filed a Motion for
Reconsideration of [the] Amended Judgment. In this
motion, Twogood challenged the amended judgement on two
grounds.
Twogood argued that, before Judge Olsen could
properly issue an amended judgement, the judge was
obliged to hold a new sentencing hearing and that
Twogood was entitled to personally appear at that
hearing.
Twogood also challenged one of his conditions
of probation, Special Condition No. 9. This probation
condition specified that Twogood was required to
[s]ubmit to a warrantless, non-consensual search by a
law enforcement officer of [his] person, personal
property, residence[,] or any vehicle [in which he is
present] for prohibited weapons, controlled
substances[,] and drug paraphernalia.
Twogood conceded that a probation officer
could lawfully require him to submit to the types of
searches described in Special Condition No. 9. But
Twogood argued that Special Condition No. 9 was
unconstitutional to the extent that it allowed these
searches to be initiated by [any] law enforcement
officer.
Judge Olsen denied Twogoods motion for
reconsideration. He explained that [t]he amended
judgment was generated [simply] to conform to the Court
of Appeals decision and that, apart from clarifying
the relationship between Twogoods two sentences of
imprisonment, [t]here were no other changes to the
original judgment.
Twogoods argument that Judge Olsen was required to hold
a new sentencing hearing, and to afford Twogood an
opportunity for allocution, before issuing the amended
judgement
Twogood argues that when Judge Olsen issued
the amended judgement, the judge essentially sentenced
Twogood in Twogoods absence thus violating Alaska
Criminal Rule 38(a). (This rule specifies that a
defendants presence is required at the imposition of
sentence.)
Twogood further argues that he was entitled
to allocution that is, entitled to personally address
Judge Olsen concerning the sentence before the judge
issued the amended judgement.
We reject both of these contentions. Judge
Olsens issuance of the amended judgement was not a
sentencing because Judge Olsen made no decision
concerning Twogoods sentence. As the judge explained
when he denied Twogoods motion for reconsideration, his
task in this case was purely ministerial.
This Court directed Judge Olsen to amend the
written judgement so that it reflected our decision in
Twogood II our decision concerning the order in which
Twogood was to serve his two sentences of imprisonment.
Judge Olsen did this by adding the following language
to the description of Twogoods sentence for attempted
murder: 10 years [of this sentence are] consecutive to
and 5 years concurrent with [the sentence imposed on]
Count III [i.e., the sentence for first-degree sexual
assault].
In performing this task, Judge Olsen had no
discretion to deviate from our mandate in Twogood II.
He was simply doing what we directed making the
written judgement conform to the interpretation of the
original sentencing decision that we adopted in Twogood
II. Because Judge Olsen was not performing a task that
entailed the exercise of sentencing discretion, Twogood
had no right of allocution and no right to be present.
Thus, Judge Olsen could properly issue the amended
judgement without holding a new sentencing hearing.
Twogoods argument that Special Probation Condition No.
9 was imposed unlawfully
As we explained earlier, one provision of
Twogoods judgement Special Probation Condition No. 9
requires Twogood to [s]ubmit to a warrantless, non-
consensual search by a law enforcement officer of [his]
person, personal property, residence[,] or any vehicle
[in which he is present] for prohibited weapons,
controlled substances[,] and drug paraphernalia.
This condition of probation was part of
Twogoods original judgement i.e., it was part of the
judgement issued by Twogoods original sentencing judge
in August 2000. Judge Olsen merely carried this
provision over (along with all of Twogoods other
conditions of probation) when he issued the amended
judgement in January 2009.
In the Motion for Reconsideration that
Twogood filed in the superior court, Twogood argued
that this condition of his probation was
unconstitutional under Alaska law because it authorized
[any] law enforcement officer not just probation
officers to initiate the described warrantless
searches.
Twogoods argument was correct: under Alaska
law, a probationer can be ordered to submit to
warrantless searches by, or at the direction of, a
probation officer, but a sentencing court has no
authority to order a probationer to submit to
warrantless searches by any law enforcement officer.
See Roman v. State, 570 P.2d 1235, 1242 n. 20 (Alaska
1977); Marunich v. State, 151 P.3d 510, 516 (Alaska
App. 2006).
When Judge Olsen denied Twogoods motion for
reconsideration, he did not address the merits of
Twogoods argument about the special condition of
probation. Rather, Judge Olsen merely noted that his
amendment of Twogoods judgement was simply to make it
conform to our decision, and that in all other respects
the provisions of the original judgement remained
unchanged. We interpret Judge Olsen to be saying that,
given the procedural posture of the case, Twogood was
not entitled to raise new challenges to these unchanged
provisions of the judgement.
Neither Twogoods attorney nor Judge Olsen
appears to have considered the possibility that Twogood
could achieve the same purpose by filing a motion to
modify the conditions of his probation under AS
12.55.090(b). However, we need not pursue this point
further, because Twogood has chosen not to renew this
challenge to his condition of probation in the present
appeal. Instead, Twogood raises a different argument.
In his brief to this Court, Twogood argues
that there never was a valid ground for including
Special Condition No. 9 among Twogoods conditions of
probation. However, Twogood does not renew his
argument that the error lay in authorizing [any] law
enforcement officer as opposed to probation officers
to initiate the warrantless searches. Rather, Twogood
argues for the first time that his sentencing judge had
no valid basis for concluding that Twogood should be
subject to warrantless searches for weapons or
controlled substances by anyone.
Twogood bases his argument on the assertion
that there is no direct relationship between the
searches authorized by Special Condition No. 9 and the
crimes for which he was convicted first-degree sexual
assault and attempted murder. See Roman, 570 P.2d at
1243, where the supreme court held that a sentencing
judge should not require a probationer to submit to
warrantless searches for drugs, weapons, or other types
of items unless there is a direct relationship [between
those] searches [and] the nature of the crime for which
the [probationer] was convicted.
But in State v. Thomas, 133 P.3d 684 (Alaska
App. 2005), this Court gave a broad interpretation to
this passage from Roman. We held that Roman authorized
conditions of probation that address[] the causes of,
or the motivations for, the defendants criminal
behavior. Id. at 685. Thus, in Thomas, even though
the defendant had not been convicted of a drug crime,
we affirmed a probation condition that authorized
warrantless searches for controlled substances because
the sentencing court could reasonably have concluded
that [the defendant] had a problem with the abuse of
controlled substances, and that [the defendants]
continued abuse of controlled substances would impede
his rehabilitation or would contribute to renewed
criminal behavior. Id. at 686.
The issue of whether Twogoods original
sentencing judge had a sufficient basis (under Roman
and Thomas) for imposing Special Condition No. 9 was
not presented to Judge Olsen during the superior court
litigation. The issue is therefore not preserved for
appellate review.
Moreover, Twogood has not shown that the
original sentencing judge committed plain error when
she included this warrantless search provision among
the conditions of Twogoods probation. At Twogoods
sentencing hearing in August 2000, the sentencing judge
made specific findings regarding Twogoods violent
tendencies and his history of drug abuse. Before the
sentencing judge imposed the special condition of
probation that authorized warrantless searches for
prohibited weapons and controlled substances, the judge
noted that Twogood had a fairly long-time amphetamine
problem. The judge also noted that Twogood had
conceded, in his conversation with a state trooper,
that he had an anger problem, and that Twogood had
committed previous acts of violence against the same
victim during the course of their relationship.
Given the foregoing, Twogood has failed to
show plain error. That is, he has not shown that the
record clearly fails to support the warrantless search
provision under the rule of Roman and Thomas.
We therefore reject Twogoods claim that this
special condition of probation was imposed unlawfully.
(The State argues that Twogood is not even
entitled to litigate this claim. The State points out
that Twogood could have attacked this condition of
probation when he pursued his direct appeal of his
conviction. The State contends that, because Twogood
failed to raise this claim in his direct appeal, he is
estopped from pursing this claim now. We need not
resolve this issue because, as we have just explained,
even if Twogood is entitled to litigate this claim, he
is not entitled to relief.)
Twogoods claim that Judge Olsen violated Alaska
Criminal Rule 32 by failing to sentence him without
unreasonable delay
Under Alaska law, a person who has been
convicted of a criminal offense has a right to be
sentenced within a reasonable amount of time. See
Alaska Criminal Rule 32(a) (Sentence shall be imposed
without unreasonable delay.); Gonzales v. State, 582
P.2d 630, 632 (Alaska 1978) (holding that the
constitutional right to a speedy trial includes the
right to a reasonably prompt sentencing).
Twogood claims that Judge Olsen violated his
right to a prompt sentencing because, even though this
Courts decision in Twogood II took effect on December
8, 2008, Judge Olsen failed to issue the amended
judgement until late January 2009. (The amended
judgement was signed on January 23rd and was
distributed to the parties on January 27th.) This
claim fails for a number of reasons.
First, Twogood did not raise this claim in
the superior court.
Second, as we have already explained, Judge
Olsen did not conduct a sentencing when he issued the
amended judgement in Twogoods case. The judge simply
performed the ministerial act of conforming the written
judgement to the interpretation of Twogoods sentence
that we announced in Twogood II.
Third, Twogoods argument fails to address one
key aspect of speedy trial or speedy sentencing claims:
before the government will be required to justify the
delay, the defendant must first show that the amount of
delay (or more specifically, the delay that can not be
attributed to the defendant or the defendants attorney)
surpassed some threshold amount of time. As we
explained in Alvarez v. Ketchikan Gateway Borough,
The supreme court has ruled that an
unexplained delay of fourteen months or more
is presumptively prejudicial, [citations
omitted], and that, without an affirmative
showing of prejudice, a delay of eight months
or less is presumptively non-prejudicial.
[citations omitted] ... Only after a
defendant has established either actual
prejudice or a presumption of prejudice do
Alaska courts consider if the delay amounted
to a constitutional violation. [citation
omitted] This is done by balancing the four
factors enunciated in Barker v. Wingo[, 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
(1972)]: (1) the length of the delay, (2)
the reasons for the delay, (3) the defendants
assertion of his or her right, and (4) the
prejudice to the defendant.
Alvarez, 91 P.3d 289, 294-95 (Alaska App.
2004).
This same analysis applies to
claims of undue delay in sentencing. The
most pertinent discussion of this issue is
found in our decision in Stocker v. State,
766 P.2d 48, 50 (Alaska App. 1988), where we
explained why an eight-month delay in
sentencing, all attributable to the arguable
negligence of the court system, did not
create a presumption of prejudice.
Twogoods brief does not address the
question of whether Judge Olsens six-week
delay in issuing the amended judgement was a
lengthy enough delay to raise a presumption
of unreasonable, prejudicial delay. But
given our decision in Stocker, it is fairly
clear that this six-week delay does not
create any presumption in Twogoods favor.
In the absence of any presumed
prejudice, Twogood must affirmatively
establish actual prejudice. Twogood does
make one specific assertion of prejudice: he
asserts that he was prejudiced because, in
addition to suffering further emotional
distress from the continuing nature of his
criminal case, he was unable to ascertain
what his exact sentence was. This assertion
of prejudice is frivolous.
First, in both Stocker, 766 P.2d at
50, and Holmes v. State, 765 P.2d 112, 113
(Alaska App. 1988), we held that a defendant
who claims undue delay in sentencing is not
entitled to relief when the only asserted
prejudice arising from the delay is the
emotional stress or anxiety experienced by
the defendant.
Second, Twogoods claim of anxiety
and uncertainty concerning the terms of his
sentence is meritless on its face. Our
decision in Twogood II specified exactly what
Twogoods sentence was. Judge Olsen had no
discretion to depart from our construction of
the sentence when he issued the amended
judgement; rather, Judge Olsens duty was to
conform the written judgement to our ruling.
Thus, as soon as our decision in Twogood II
became final (on December 8, 2008), both
Twogood and his attorney knew precisely what
Twogoods sentence was.
For these reasons, we reject
Twogoods claim that he was denied his right
to a prompt sentencing.
Twogoods claim that he is being denied his right to
rehabilitative treatment
Two provisions of Twogoods judgement deal
with the issue of sex offender treatment while he
is in prison. The judgement states: It is
recommended that [Twogood] be afforded sexual
offender treatment while [he is] incarcerated, and
[i]t is ordered that [Twogood] participate in and
successfully complete sexual offender treatment if
[it is] offered while [he is] incarcerated. In
other words, Twogoods original sentencing judge
recommended that the Department of Corrections
offer sex offender treatment to Twogood while he
was serving his sentence, and the judge ordered
Twogood to participate in (and successfully
complete) that treatment if it was offered.
In his brief to this Court, Twogood points
out that, since the time of his sentencing in 2008, the
Department of Corrections has altered its policy and no
longer offers sex offender treatment to incarcerated
prisoners; instead, the Department focuses its
rehabilitative efforts on probationers and parolees.
We discussed this change in Corrections policy in State
v. Lundy, 188 P.3d 692 (Alaska App. 2008).
Twogood asserts that, even though the
Department of Corrections no longer offers sex offender
treatment to incarcerated inmates, the Parole Board
still evaluates a prisoners eligibility for
discretionary parole based, in part, on whether the
prisoner has received and successfully completed sex
offender treatment.
This may or may not be true. Twogood did not
raise this claim in the superior court, and thus we
have no finding by the superior court on this issue.
Twogood further asserts that, if the
Department had continued to offer sex offender
treatment to incarcerated inmates, Twogood would have
participated in this treatment, he would have
successfully completed the program, and thus he would
have been released on discretionary parole earlier.
Again, Twogood never raised these claims in the
superior court. Moreover, Twogoods assertions are
completely speculative.
Finally, even assuming that Twogood is being
denied his right to rehabilitative treatment, the fault
does not lie in the superior courts judgement. Rather,
the fault (if any) would lie in the Department of
Corrections decision to cease offering sex offender
treatment to incarcerated inmates. And, as we held in
Lundy, a prisoner who wishes to challenge that decision
can not pursue the matter in their criminal case.
Instead, the prisoner must file a civil action against
the Department. 188 P.3d at 696.
Twogoods claim that both his original judgement and the
amended judgement are illegal because they do not
comport with the terms of Twogoods plea agreement with
the State or, alternatively, that Twogood is entitled
to withdraw his pleas because the judgement does not
incorporate all the terms of the plea bargain
Twogood was indicted on eight different
felony counts: two counts of attempted murder (Counts
I and II), five counts of first-degree sexual assault
(Counts III through VII), and one count of kidnapping
(Count VIII). These charges were resolved when Twogood
reached a plea agreement with the State. Under the
terms of this plea agreement, Twogood would plead no
contest to Count I (attempted murder) and Count III
(first-degree sexual assault), and the other charges
would be dismissed. (Twogood and the State also agreed
that Twogood would receive a composite sentence of 20
years to serve, with some additional time suspended.)
The written judgement in Twogoods case (here,
we are actually speaking of both the original version
issued in August 2000 and the amended version issued in
January 2009) fails to conform to this plea agreement
in one respect. The judgement correctly states that
Twogood was convicted of two offenses: Count I
(attempted murder) and Count III (first-degree sexual
assault). But in the section that lists the counts of
the indictment that were dismissed, the judgement lists
only Counts II, IV, V, VI, and VII. In other words,
Twogoods judgement fails to mention the fact that Count
VIII (the kidnapping charge) was also dismissed.
According to Twogood, this omission makes the
judgement plainly illegal because the judgement fails
to conform to the terms of the plea agreement.
Alternatively, Twogood argues that the superior courts
failure to issue a judgement conforming to the terms of
the plea agreement renders the plea agreement invalid.
We view the matter differently.
It is undisputed that the plea agreement
called for the dismissal of Count VIII. This being so,
the failure of the judgement to mention this fact is a
clerical error. This error can be corrected at any
time under Alaska Criminal Rule 36.4 However, this
clerical error does not make the judgement illegal, nor
does it entitle Twogood to withdraw from the plea
agreement.
We additionally note that, under Criminal
Rule 36, if a litigant believes that a judgement or
order contains this kind of mistake, the litigant must
seek relief from the court that issued the judgement or
order. Twogood has never asked the superior court to
rectify this error. He is not entitled to present
this claim for the first time on appeal.
Twogoods claim that he was sentenced in violation of
the Sixth Amendment right to jury trial announced in
Blakely v. Washington
In Blakely v. Washington, 542 U.S. 296, 301;
124 S.Ct. 2531, 2536; 159 L.Ed.2d 403 (2004), the
United States Supreme Court declared that the Sixth
Amendment right to jury trial applied to the
governments proof of aggravating factors that increased
a defendants potential maximum sentence. We have
repeatedly acknowledged that, under Blakely, defendants
who were subject to sentencing under Alaskas pre-March
2005 presumptive sentencing law had the right to demand
a jury trial on the aggravating factors alleged by the
State, and to demand that the government prove these
factors beyond a reasonable doubt, unless the
aggravating factors flowed directly from the jurys
verdict or were premised on the defendants prior
criminal convictions.5
As we explained earlier in this opinion,
Twogood was subject to presumptive sentencing on one of
his offenses (the first-degree sexual assault). The
State alleged several aggravating factors relating to
this offense, and in accordance with the procedures
specified in Alaskas pre-March 2005 sentencing statutes
the sentencing judge ruled on these factors without
submitting them to a jury. Then, in reliance on these
aggravating factors, the judge increased Twogoods
sentence for the sexual assault from the presumptive
term (8 years imprisonment) to an enhanced term of 14
years with 4 years suspended.
Twogood correctly notes that this procedure
violated the right to jury trial as announced in
Blakely. However, the Alaska Supreme Court held in
State v. Smart, 202 P.3d 1130, 1146-47 (Alaska 2009),
that the Blakely right of jury trial is not retroactive
that this right applies only to defendants whose
convictions were not yet final in June 2004 when the
Blakely decision was announced.
As we noted earlier, the superior court
entered judgement against Twogood in August 2000, and
this Court affirmed the superior courts judgement on
direct appeal in July 2002. Twogood petitioned the
Alaska Supreme Court to review our decision, but that
petition was denied on November 8, 2002.6 Thus, under
the supreme courts decision in Smart, Twogood
apparently has no Blakely claim.
Twogood attempts to avoid this result by
asserting that the superior courts issuance of the
amended judgement in January 2009 constitutes a new
sentencing event. Based on this assertion, Twogood
argues that his conviction was entered long after
Blakely was decided, and he is therefore entitled to
attack his sentence on Blakely grounds. We reject this
argument for several reasons.
First, as we explained earlier, Judge Olsens
issuance of the amended judgement was not a new
sentencing. It was a ministerial alteration of the
wording of the written judgement to make it conform to
the interpretation of Twogoods sentence that we adopted
in Twogood II.
In Twogood II, this Court declared that,
given the original sentencing judges improper refusal
to clarify the order in which Twogood was to serve his
two sentences of imprisonment, the law required us to
construe this aspect of the sentence in Twogoods favor.
In essence, we declared that, as a legal matter, the
sequence of Twogoods sentences had always been the
sequence that we announced in Twogood II. This means
that, as a legal matter, Judge Olsens alteration of the
wording of the written judgement was an act performed
nunc pro tunc an act done to retroactively correct a
mistake committed earlier.7
Judge Olsen did not make a new sentencing
decision. In particular, he did not reconsider either
the proof or the sentencing effect of the aggravating
factors that were litigated during Twogoods original
sentencing. Accordingly, we conclude that the issuance
of the amended judgement in January 2009 was not a new
sentencing event that somehow resuscitated Twogoods
right to insist on the Blakely right to jury trial.
Moreover, even if Twogood somehow could
litigate a Blakely claim at this point, his claim would
fail.
Because Twogood never asserted a right of
jury trial at his original sentencing proceedings,
Twogoods Blakely claim would have to be pursued as a
claim of plain error.
There is no plain Blakely error in Twogoods
case. As we explained earlier in this opinion (and as
we noted in our decision of Twogoods direct appeal),8
Twogood conceded one of the States proposed aggravating
factors during the original sentencing proceedings in
the superior court. In our prior Blakely cases, we
have repeatedly held that a sentencing judge does not
commit plain error when the judge relies on an
aggravating factor that has been conceded by the
defendant or the defendants attorney.9
Moreover, we held in Cleveland v. State, 143
P.3d 977 (Alaska App. 2006), that in cases governed by
Alaskas pre-March 2005 presumptive sentencing law, a
defendants right to jury trial under Blakely is
satisfied if there is at least one Blakely-compliant
aggravating factor i.e., at least one aggravating
factor that flows directly from the jurys verdict, or
is admitted by the defendant, or is based on the
defendants prior convictions. 143 P.3d at 984-85.
Accordingly, even though the superior court
gave Twogood an enhanced sentence for first-degree
sexual assault (i.e., a sentence that exceeded the
applicable 8-year presumptive term) without submitting
any of the States proposed aggravating factors to a
jury, the superior court did not commit plain error
under Blakely.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Former AS 12.55.125(i)(1)(A) (pre-March 2005 version).
2 Former AS 12.55.125(b) (pre-March 2005 version).
3 Former AS 12.55.155(a)(2) (pre-March 2005 version);
Cleveland v. State, 143 P.3d 977, 984-85 (Alaska App. 2006)
(holding that, in cases governed by Alaskas pre-March 2005
presumptive sentencing law, a defendants right to jury trial
under Blakely v. Washington is satisfied if the superior
court found at least one Blakely-compliant aggravating
factor).
4 Criminal Rule 36 provides, in pertinent part: Clerical
mistakes in judgments, orders or other parts of the record,
and errors in the record arising from oversight or omission,
may be corrected by the court at any time and after such
notice, if any, as the court orders.
5 See, e.g., Malutin v. State, 198 P.3d 1177, 1179 (Alaska
App. 2009); Lockuk v. State, 153 P.3d 1012, 1014 (Alaska
App. 2007).
6 See Alaska Supreme Court File No. S-10721. Information
concerning this file (in particular, the date on which the
supreme court denied Twogoods petition for hearing) can be
found by going to:
http://www.appellate.courts.state.ak.us/frames1.asp
and then clicking on the Opening Pleadings button, located among
the buttons at the bottom of the top half of the screen.
7 See Peterson v. Swarthout, 214 P.3d 332, 336 n. 2 (Alaska
2009):
Nunc pro tunc is a Latin phrase that means now for
then. [This phrase] is used by courts to indicate that
an order or document is being given retroactive effect.
Courts may appropriately use this power to correct
mistakes. For example, if a court order contains a
clerical error, the court may issue a revised order
that replaces the original. If the original order has
already gone into effect by the time the error is
noticed, the court may issue the corrected order nunc
pro tunc, making it retroactive to the date of the
original order.
8 Twogood I, 2002 WL 1627474 at *3.
9 See, e.g., Lockuk v. State, 153 P.3d 1012, 1016 (Alaska App.
2007); Paige v. State, 115 P.3d 1244, 1248 (Alaska App.
2005).
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