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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Smart (02/27/2009) sp-6340
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Supreme Court No. S- 12493 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-9025 | |
| v. | ) Superior Court No. 1KE-01-01382 CR |
| ) | |
| TROY SMART, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6340 - February 27, 2009 |
| ) | |
STATE OF ALASKA, )
) Supreme Court No. S-12543
Petitioner, )
) Court of Appeals No. A-8934
v. ) Superior Court No. 2KB-98-
00491 CR
)
HENRY DOUGLAS, )
)
Respondent. )
)
Petition for Hearing in File No. S-12493 from
the Court of Appeals of the State of Alaska,
on appeal from the Superior Court of the
State of Alaska, First Judicial District,
Ketchikan, Larry R. Weeks, Judge. Petition
for Hearing in File No. S-12543 from the
Court of Appeals of the State of Alaska, on
appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Ben J. Esch, Judge.
Appearances: Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for Petitioner. Linda K. Wilson, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Respondents. Joshua
P. Fink, Public Advocate, Anchorage, for
Amicus Curiae Office of Public Advocacy.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
The question presented in these two cases is whether
the right to a jury trial announced in Blakely v. Washington1
should be retroactively applied to two state defendants, Troy
Smart and Henry Douglas, whose sentences were final before June
24, 2004, when Blakely was decided. Blakely requires that any
fact except a fact admitted by the defendant or the fact of a
prior conviction necessary to increase a sentence above the
statutory presumptive maximum be proved to a jury beyond a
reasonable doubt. We decline to give Blakely full retroactivity.
We conclude that the purpose of Blakely does not raise serious
questions about the accuracy of past sentences and must be
weighed against the states reliance on the old rule for over
twenty years and the administrative burden of implementing the
new rule retroactively. We therefore reverse the rulings of the
court of appeals in these two cases and remand.
II. FACTS AND PROCEEDINGS
A jury convicted Troy Smart of second-degree assault.
Because Smart was a second felony offender he faced a presumptive
sentence of four years with a maximum sentence of ten years.2
The sentencing judge found an aggravating factor and in May 2002
sentenced Smart to serve ten years, with six of those years
suspended.3 The court of appeals affirmed Smarts sentence in
January 2003.4 Smart did not seek further review of his sentence
at that time.
Henry Douglas pleaded no contest to first-degree
robbery. As a second felony offender Douglas faced a presumptive
sentence of ten years and a maximum sentence of twenty years.5
In August 1999 the sentencing judge found multiple aggravating
factors and sentenced Douglas to serve eighteen years, with eight
of those years suspended.6 Douglas appealed but his appeal was
dismissed in April 2000.7
In June 2000 the United States Supreme Court held in
Apprendi v. New Jersey that defendants have a constitutional
right to have a jury decide any disputed fact other than the
fact of a prior conviction that increases a sentence beyond the
statutory maximum, and to have each such fact proved beyond a
reasonable doubt.8 In June 2004 the Supreme Court in Blakely v.
Washington for the first time applied Apprendi to a sentence
imposed under a presumptive sentencing scheme.9 It held in
Blakely that a defendants sentence was invalid because the
aggravating facts, which supported an increase above the sentence
that was authorized by the jurys verdict alone, were neither
admitted by the defendant nor found by a jury.10
After Blakely was issued, Douglas filed an Alaska
Criminal Rule 35(a) motion claiming that his sentence was illegal
under Blakely. Superior Court Judge Ben J. Esch denied Douglass
motion, holding that Blakely is not retroactive and does not
apply to this case because it is not on . . . direct appeal.
Likewise, Smart filed an Alaska Criminal Rule 35(a)
motion in 2004, claiming that his sentence was illegal under
Blakely. Superior Court Judge Larry R. Weeks concluded that
Smarts request could only be presented as an Alaska Criminal Rule
35.1 petition for post-conviction relief. Treating the motion as
a Rule 35.1 petition, Judge Weeks denied Smarts motion, holding
that Blakely did not apply retroactively to cases that have been
decided on appeal.
Smart and Douglas both appealed. The court of appeals
decided Smarts appeal first. It first held that the state
retroactivity test announced in Judd v. State11 not the federal
retroactivity test announced in Teague v. Lane12 applied.13 It
then held that Blakely should be fully retroactive in Alaska.14
It therefore vacated Smarts sentence and remanded for further
proceedings on the disputed aggravating factor.15 In resolving
Douglass appeal, the court of appeals relied on its decision in
Smart and remanded for further proceedings on Douglass contested
aggravators.16
The state filed petitions for hearing challenging both
decisions. We granted the petitions, ordered full briefing, and
consolidated the cases for decision.
III. DISCUSSION
A. Standard of Review
These cases require interpretation of the United States
and Alaska Constitutions and federal and state case law
concerning the retroactivity of appellate decisions. We use our
independent judgment in reviewing rulings turning on federal and
state constitutional law.17
B. Apprendi and Blakely
Because this case turns on whether Blakely applies
retroactively to cases on collateral review,18 we begin with an
overview of Blakely and its predecessor, Apprendi.
Apprendi. Apprendi fired bullets into the home of an
African-American family.19 He entered a plea agreement and
pleaded guilty to three of the twenty-three counts charged.20
Under Apprendis plea agreement, the sentences for two counts
would run consecutively and the sentence for the third count
would run concurrently with the other two.21 Apprendi faced a
maximum aggregate sentence of twenty years on the two counts (ten-
year maximum for each count) if the judge found no basis for a
hate-crime enhancement.22 But if the hate-crime enhancement
applied to one count, a New Jersey statute authorized a twenty-
year maximum sentence on that count alone.23 Applying a
preponderance of the evidence standard, the sentencing judge
found that the hate-crime enhancement applied to one count.24 He
sentenced Apprendi to a twelve-year term on that count and to
shorter concurrent sentences on the other two counts.25
The question before the Supreme Court was whether a
jury had to find on the basis of proof beyond a reasonable doubt
that there had been a hate crime.26 This question would determine
whether the twelve-year sentence on the single count was
permissible given the ten-year maximum for that offense.27 The
Court held that: Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.28 The Court reversed the judgment of the New
Jersey Supreme Court, which had upheld Apprendis sentence.29
Blakely. In Blakely the Supreme Court applied Apprendi
to a presumptive sentencing system for the first time. Blakely
pleaded guilty in Washington State to kidnaping his estranged
wife.30 Per state statute, the standard range for Blakelys
conviction was forty-nine to fifty-three months.31 The statute
allowed a sentence above the standard range if the judge found
substantial and compelling reasons justifying an exceptional
sentence.32 The judge imposed an exceptional sentence of ninety
months (thirty-seven months above the maximum of the standard
range) because he found that Blakely acted with deliberate
cruelty a statutory aggravating factor.33 Reviewing Blakelys
sentence, the Supreme Court concluded that the statutory maximum
for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.34 In other words, the Court held, the
relevant statutory maximum is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may
impose without any additional findings.35 The Court held that
because Blakelys sentence exceeded the presumptive sentence,
absent a jury finding of the enhancing factor under the
reasonable doubt standard, the sentence violated the Sixth
Amendment right to a jury trial.36 The Court made it clear that
prior convictions and facts admitted by the defendant do not fall
within the requirements of Apprendi and Blakely.37
The question facing state courts after Apprendi and
Blakely was whether the Supreme Courts interpretation of the
Federal Constitution in those cases should be given full
retroactivity by a state reviewing its own criminal convictions.
One part of that question was whether the issue of retroactivity
should be decided by applying an individual states retroactivity
standard or the federal retroactivity standard set out in Teague
v. Lane.38 That issue was squarely presented to the Court in
Danforth v. Minnesota.39
The Court in Danforth v. Minnesota summarized the
Teague rule as follows:
New constitutional rules announced by this
Court that place certain kinds of primary
individual conduct beyond the power of the
States to proscribe, as well as watershed
rules of criminal procedure, must be applied
in all future trials, all cases pending on
direct review, and all federal habeas corpus
proceedings. All other new rules of criminal
procedure must be applied in future trials
and in cases pending on direct review, but
may not provide the basis for a federal
collateral attack on a state-court
conviction.[40]
Thus, under Teague, to use the terms we identified in footnote
eighteen, limited retroactivity must be given as a matter of
course to new constitutional rules announced by the United States
Supreme Court. In other words, when a new ruling is announced by
the United States Supreme Court it must be applied to any case
still pending on direct review in the state system. Because
neither of the cases before us was still pending on direct review
in the state system when Blakely was decided, the question in
these cases is whether full retroactivity should be afforded to
the Blakely ruling. Under the Teague standard for full
retroactivity, full retroactivity would be required if Blakely
was a ruling that placed a certain kind of primary individual
conduct beyond the power of the states to proscribe or if it was
a watershed rule of criminal procedure. Until Danforth was
decided, it was an open question whether a state court could
grant full retroactive effect to a United States Supreme Court
ruling in cases in which the Teague standard for full
retroactivity was not met. That issue was decided by the Court
in Danforth.
C. Danforth and the Applicable Test for Full Retroactivity
The Supreme Court introduced the retroactivity issue in
Danforth as follows: The question in this case is whether Teague
constrains the authority of state courts to give broader effect
to new rules of criminal procedure than is required by that
opinion. We have never suggested that it does, and now hold that
it does not.41 The Court stated that [s]tates are independent
sovereigns with plenary authority to make and enforce their own
laws as long as they do not infringe on federal constitutional
guarantees.42 A state is thereby free to give its citizens the
benefit of [the Courts] rule in any fashion that does not offend
federal law.43 Danforth clarified that it is acceptable for
states to give broader protection to defendants by applying state
retroactivity law in state post-conviction proceedings.44 The
Court held in Danforth that Teague does not impose a binding
obligation on state courts and that a state court, when reviewing
its own state criminal convictions, [may] provide a remedy for a
violation that is deemed nonretroactive under Teague.45
Danforth therefore allows us to apply either the Teague
test for full retroactivity or a state constitutional test so
long as the state test is at least as comprehensive as the
federal test. The Alaska Court of Appeals determined that the
three-factor test used in Judd v. State46 should be employed. In
Judd we identified three criteria which guide resolution of the
question of the retroactivity of a new ruling: (a) the purpose
to be served by the new standards; (b) the extent of the reliance
by law enforcement authorities on the old standards; and (c) the
effect on the administration of justice of a retroactive
application of the new standards.47
We borrowed these standards from those the Supreme
Court discussed in Linkletter v. Walker.48 They were designed to
answer the question whether the Courts decision in Mapp v. Ohio49
requiring that state courts exclude unconstitutionally seized
evidence would apply to state convictions that were on
collateral review.50 The Linkletter Court in applying the three-
factor test decided that Mapp should not be applied to cases on
collateral review.51
Subsequently, in Williams v. United States the Supreme
Court applied the Linkletter standards to a case on direct
review.52 Justice Harlan dissented from the Williams decision,
noting that he had come to regret the Linkletter decision in
which he had joined.53 In his view new constitutional rulings
should as a matter of course be applied to state cases which are
still pending on direct review when a new ruling is announced.54
Justice Harlan decried the practice of prospective overruling as
both inequitable to litigants who should benefit from a new
ruling and inconsistent with the role of a reviewing court:
Simply fishing one case from the stream of appellate review,
using it as a vehicle for pronouncing new constitutional
standards, and then permitting a stream of similar cases
subsequently to flow by unaffected by that new rule constitutes
an indefensible departure from this model of judicial review.55
Justice Harlan also concluded that the Linkletter standards were
inappropriate for determining whether a new ruling should be
applied to cases on collateral review and suggested instead that
retroactive application in such cases should be limited to new
substantive due process rulings and for claims of nonobservance
of . . . procedures that . . . are implicit in the concept of
ordered liberty. 56 Justice Marshall joined in Justice Harlans
dissent in Williams with respect to cases on direct review.57 As
to cases on collateral review, Justice Marshall was of the
opinion that the Linkletter standards were appropriate. He wrote
that
[t]he method commends itself, once the point
of finality after direct review is passed, as
a careful and appropriate way of adjudicating
the procedural rights of litigants in view of
the purposes of a new decisional rule and the
concerns of effective law enforcement. In
particular, if the purposes of a new rule
implicate decisively the basic
truth-determining function of the criminal
trial, then I believe the rule should be
given full retroactive application, for the
required constitutional procedure itself
would then stand as a concrete embodiment of
the concept of ordered liberty.[58]
Use of the Linkletter standards for cases on direct
review did not long survive in the United States Supreme Court.
In United States v. Johnson, the Court adopted Justice Harlans
view, save for cases where the new ruling was said to be a clear
break with the past.59 Thus, a clear break rule was not to be
applied retroactively to cases on direct review. In Griffith v.
Kentucky the Court decided that the clear break exception was not
tenable and held that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state
or federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a clear
break with the past.60 Griffith, however, left undisturbed the
application of the Linkletter standards to cases pending on
collateral review. Two years after Griffith, Teague decided that
question and overruled the use of the Linkletter standards for
cases on collateral review in favor of the approach advocated by
Justice Harlan in his dissent in Williams.61
In light of the force of Justice Harlans rationale, it
may be difficult to defend the use of the Linkletter/Judd
standards in cases involving direct review on the state level.
No party argues that any standard other than those discussed in
Teague and Judd should be applied here on collateral review.
Absent meaningful argument on the issue, we decline to consider
whether to apply some other standard in these cases.
Using Judd as the test for full retroactivity, we must
first determine whether the disputed cases announced a new rule.62
If so, we then examine the purpose of the new rule and, depending
on that purpose, balance multiple factors to determine full
retroactivity.63 By contrast, Teague only treats two narrow
categories of rules as retroactive: (1) those that render types
of conduct beyond the power of the criminal law-making authority
to proscribe and (2) watershed rules that implicate the
fundamental fairness of the trial.64 The Supreme Court has
applied exceptionally few rules retroactively under Teague.65
To confirm that Judd is no less protective than the
federal standard, and that it can therefore be applied to
determine full retroactivity of Blakely, we consider whether
Blakely would be fully retroactive under Teague. To do so, we
look to how the federal courts have applied Teague to Blakely.
So long as Judd at least meets the federal standard, it does not
offend federal law.66 That is, if Blakely would not be fully
retroactive under Teague, we can proceed to determining whether
Blakely is fully retroactive under state law.
The federal courts of appeals that have carefully
considered the issue have concluded that Blakely is not fully
retroactive under Teague.67 These courts have held that Blakely
announced a new procedural rule, that this rule does not place
certain kinds of conduct beyond the power of the criminal law-
making authority to prohibit, and that Blakely did not announce a
watershed rule of criminal procedure.68 State courts applying
Teague have reached the same conclusion.69 Because Smart and
Douglas could not succeed on a Blakely challenge under the
federal retroactivity standard, we conclude that our state
standard is no less protective than the federal standard.70
D. Is Blakely a New Rule or Was It Compelled by the
Holding in Apprendi?
Under Alaska law, as a preliminary matter we must
decide whether Blakely announced a new rule or was instead a
compelled application of then-existing precedent.71 We only apply
the Judd retroactivity balancing analysis if there is a new rule.
Smart argues that Blakely did not announce a new rule because it
was compelled by the Supreme Courts earlier holding in Apprendi.
This issue is critical to Smart because his case had not become
final when Apprendi was decided on June 26, 2000.72
In Teague Justice OConnor, who wrote the lead opinion,
stated that in general . . . a case announces a new rule when it
breaks new ground or, in other words, if the result was not
dictated by precedent existing at the time the defendants
conviction became final.73 Justice OConnor noted that it is often
difficult to determine when a case announces a new rule, and she
declined to define the spectrum of what may or may not constitute
a new rule for retroactivity purposes.74 The Supreme Court
recently revisited the question of how to determine whether a
case creates a new rule. In Beard v. Banks, the Court
instructed: We must . . . ask whether the rule later announced .
. . was dictated by then-existing precedent whether, that is,
the unlawfulness of [the] conviction was apparent to all
reasonable jurists. 75
The Alaska Court of Appeals did not address this issue
before analyzing retroactivity in its opinion in Smart, but all
three members of the court agreed that Blakely announced a new
rule.76 Although Blakely relied on Apprendi, it fundamentally
changed courts understanding of maximum sentence.77 Blakely
defined the maximum sentence not as the maximum allowed by a
presumptive sentencing scheme, but as the maximum allowed by the
jurys verdict.78 Before Blakely was decided, courts consistently
held that Apprendi did not apply to sentences within the
statutory maximum.79 The rule in Blakely was clearly not apparent
to all courts and was not dictated by precedent.80
We consequently conclude that Blakely announced a new
rule of law and that it therefore does not automatically apply on
collateral review. We must apply Alaskas full retroactivity test
to determine whether this new rule applies retroactively to Smart
and Douglas.
E. Is Blakely Fully Retroactive Under Judd?
The full retroactivity standard adopted in Judd v.
State requires us to consider three factors when deciding whether
to apply a new constitutional rule retroactively: (1) the purpose
to be served by the new standards; (2) the extent of the reliance
by law enforcement authorities on the old standards; and (3) the
effect on the administration of justice of a retroactive
application of the new standards.81
1. The purpose of the rule announced in Blakely
The purpose of the Blakely rule is to guarantee that a
jury finds beyond a reasonable doubt the facts that determine the
maximum sentence. The Supreme Court explained that [w]hen a
judge inflicts punishment that the jurys verdict alone does not
allow, the jury has not found all the facts which the law makes
essential to the punishment, and the judge exceeds his proper
authority.82 A violation of Blakely does not call into question
the guilt of the defendant, but it undermines the factual
foundation of the sentencing courts authority to impose an
increased punishment.83
Applying the Judd standard, the court of appeals
concluded that Blakely should be applied fully retroactively.84
The court parsed the two elements of Apprendi: the right to a
jury, and the right to demand that the government prove the
disputed issue of fact beyond a reasonable doubt.85 Focusing on
the requirement of proof beyond a reasonable doubt,86 the court
concluded that the reasonable doubt component of Apprendi and
Blakely is the type of rule . . . whose primary purpose is
related to the integrity of the verdict, and whose function is to
cure a flaw that raises serious questions about the accuracy of
guilty verdicts. 87
The court relied on our opinion in Rutherford v. State,
which quoted from Justice Whites plurality opinion in Williams v.
United States88: Where the major purpose of new constitutional
doctrine is to overcome an aspect of the criminal trial which
substantially impairs its truth-finding function and so raises
serious questions about the accuracy of guilty verdicts in past
trials, the new rule [is to be] given complete retroactive
effect.89 The court of appeals also relied on our statement in
Rutherford that the first Judd factor (purpose) will supersede
other considerations whenever the purpose of the new rule is
primarily related to the integrity of the verdict.90 Because
[t]he Blakely requirement of proof beyond a reasonable doubt is .
. . designed to prevent unconstitutional punishment, the court of
appeals concluded that full retroactivity should be granted even
if the other two parts of the Alaska retroactivity test . . .
would militate against retroactive application.91
The Rutherford language relied on by the court of
appeals in holding that the first factor was determinative sets a
high standard. That standard ensures that only the most
exceptional new rules are not subject to the three-part balancing
test. The new rule must raise[] serious questions about the
accuracy of previous verdicts and overcome an aspect of the
criminal trial which substantially impair[ed] its truth-finding
function.92 We stated in Rutherford that where the purpose of the
new rule is primarily related to the integrity of the verdict,
the new rule is generally applied to all cases.93 But we also
recognized that where the purpose of a new constitutional
standard is not to minimize arbitrary or unreliable fact findings
. . . retroactive application has generally been denied.94 We
acknowledged that [d]ifficult analytical problems arise [that]
necessitate reference to the other two criteria, because with
many new constitutional doctrines, (t)he extent to which a
condemned practice infects the integrity of the truth-determining
process at trial is a question of probabilities.95 In Rutherford
we gave limited retroactive effect to the speedy trial right, but
we did so only after weighing all three Judd factors.96
Here we must decide whether to balance the three Judd
factors, as we did in Rutherford, or whether Blakelys purpose is
so closely related to the accuracy of guilty verdicts that it
supersedes the other factors. The proper comparisons here are
(1) between judge and jury as fact-finder, and (2) between the
clear and convincing proof standard and the proof beyond a
reasonable doubt standard. The Rutherford standard asks whether
permitting a judge to find facts under a lower standard of proof
substantially impairs [the criminal trials] truth-finding
function and raises serious questions about the accuracy of
guilty verdicts in past trials.97 If the answer is yes, Blakely
must be given retroactive effect regardless of the outcome of the
other two factors. If not, all three factors must be weighed.
This question turns on that question of probabilities98: whether
the likelihood of accurate verdicts is seriously diminished if
the requirements of Blakely both the right to a jury and the
standard of proof are not met.
Jury Trial. The Supreme Court, in Schriro v.
Summerlin, has already resolved the first comparison judge to
jury by holding that judicial fact-finding, instead of jury fact-
finding, does not so seriously diminish[] accuracy as to produce
an impermissibly large risk of injustice.99 We think the Courts
analysis is persuasive on this point. In Summerlin, decided the
same day as Blakely and written by the author of the Courts
opinion in Blakely, the Court determined that a new rule
requiring that aggravating factors be proved to a jury rather
than a judge was procedural, not substantive, and concluded that
the rule does not apply retroactively to cases already final on
direct review.100 There an Arizona statute authorized the death
penalty if a judge found certain aggravating factors.101 The Court
noted that this judicial fact-finding violated Apprendi.102 But
the Court concluded that the evidence of whether judges or juries
were better fact-finders was too equivocal to conclude that
judges were less accurate fact-finders or to hold that judicial
factfinding so seriously diminishes accuracy that there is an
impermissibly large risk of punishing conduct the law does not
reach.103 The Court held that the rule that a jury find
aggravating factors does not apply retroactively to cases already
final on direct review.104 We think it is highly likely that the
Court would reach the same conclusion if it were deciding whether
the jury fact-finding rule of Blakely is fully retroactive. We
therefore conclude that judicial fact-finding instead of jury
fact-finding does not substantially impair the truth-finding
function of the criminal trial and does not raise serious
questions about the accuracy of fact-finding during sentencing
such that this factor must supersede the other considerations of
our Judd test.
Standard of Proof. The more difficult question is
whether finding an aggravator under the clear and convincing
standard instead of Blakelys reasonable doubt standard seriously
diminishes the likelihood of accurate fact-finding for sentences.
We conclude that failure to fully retroactively impose Blakelys
requirement that aggravators be found under the reasonable doubt
standard does not impair truth-finding so substantially that the
factors in Judd need not be weighed.
To begin, we review some of the constitutional
principles that do impact truth-finding so substantially that the
importance of their purposes precludes balancing other factors.
Rutherford listed cases in which this standard was applied and
the purpose of the new rule was held to be outcome-determinative.
For example, the Supreme Court held that the right to counsel
applied retroactively because the denial of the right must almost
invariably deny a fair trial. 105 The Court reasoned that the
assistance of counsel was necessary for marshaling the facts,
introducing evidence of mitigating circumstances and in general
aiding and assisting the defendant to present his case106 and that
only the aid of counsel could . . . enable[] the accused to know
all the defenses available . . . and to plead intelligently.107
Likewise the Court held that the right to confront witnesses
significantly affected the integrity of the fact-finding process
and therefore applied retroactively because one of the important
objects of the right of confrontation [is] to guarantee that the
fact finder ha[s] an adequate opportunity to assess the
credibility of witnesses.108
Both the right to counsel and the right to confront
witnesses are central to a fair and accurate trial.109 Without
counsel, an indigent defendant would be severely disadvantaged at
all stages of the process. Without the right to confront
witnesses, the fact-finder may not be able to fairly assess the
accuracy of the facts on which the case is decided. The rule
announced in Blakely does not have as substantial an impact on
the truth-finding function of a criminal trial.
The court of appeals relied heavily on the Supreme
Courts discussion of the reasonable doubt standard in In re
Winship.110 The Court there held that the Due Process Clause of
the Fourteenth Amendment requires that every fact necessary to
constitute a crime be proved beyond a reasonable doubt.111 The
Court stated that the reasonable doubt standard plays a vital
role in the American scheme of criminal procedure and that it is
indispensable.112 The Court later held that the rule announced in
Winship must be given retroactive effect.113 But Winship focused
only on the adjudicatory phase of the trial; the Court
specifically noted that it did not direct [its] attention to the
post-adjudicative or dispositional process.114
Not every rule involving the reasonable doubt standard
is as important as the rule announced in Winship.115 In a case
holding that Apprendi did not apply retroactively, the Ninth
Circuit Court of Appeals reasoned that [t]he rule[] announced in
Winship. . . [was] given retroactive effect because [it was] to
overcome an aspect of the criminal trial that substantially
impairs its truth-finding function and so raises serious
questions about the accuracy of guilty verdicts[.] 116 In
contrast, and like the rule in Apprendi, the rule announced in
Blakely affects the enhancement of a defendants sentence after
guilt is found beyond a reasonable doubt. Put another way, a
defendant sentenced in violation of Blakely cannot complain that
his entire conviction is tainted, only that the fact-finding
underlying an aggravating sentencing factor might not have been
accurate a complaint that, given the heightened clear and
convincing standard applied by judges before Blakely, does not
raise serious questions about the accuracy of the sentence.
That a Blakely violation does not rise to the level of
substantially impairing the truth-finding function of the
criminal trial is also demonstrated by its remedy. A Blakely
violation requires remand for resentencing. It does not require
a new trial or vacating the conviction.117 We think the Supreme
Court of Minnesota stated this point well in its consideration of
Blakely: We are hard-pressed to see how a rule that, when
violated, merely requires re-sentencing can be said to be one
without which the likelihood of an accurate conviction is
seriously diminished.118
Because the standard-of-proof aspect of Blakely is
dictated by the Federal Constitution, we also look to the federal
courts for guidance. We find their logic persuasive even though
the federal courts apply a different standard of full
retroactivity. Every court of appeals that has dealt with the
issue, whether calling it the Blakely or Apprendi rule, has
concluded that the rule is procedural.119
A new procedural rule is only given fully retroactive
effect under the federal standard if it is a watershed rule[] of
criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.120 The procedural rule must
be one without which the likelihood of an accurate conviction is
seriously diminished.121 If the beyond a reasonable doubt standard
is a rule without which the likelihood of accurate sentences is
seriously diminished, one would expect the federal courts to say
so. To the contrary, every federal court of appeals which has
addressed Apprendi has held that it did not create a watershed
rule of criminal procedure.122 One federal court of appeals
recognized that the reasonable doubt standard rule will promote
marginally more accurate results but held that the rule did not
alter our understanding of the bedrock elements essential to the
fairness of a proceeding such that it seriously diminishes the
accuracy of guilty verdicts.123 The courts addressing Blakely have
likewise held that Blakely did not create a watershed rule of
criminal procedure.124 The logical conclusion to be derived from
their treatment of Apprendi and Blakely is that Blakelys
reasonable doubt requirement is not a watershed rule or one
without which the likelihood of an accurate sentence is seriously
diminished.
We conclude that Blakely announced a procedural rule
that does not raise serious questions about the fundamental
fairness and accuracy of our criminal trials. The clear and
convincing standard applied to Douglas and Smart did not
seriously diminish the accuracy of fact-finding when they were
sentenced. The purpose of Blakely is to ensure constitutional
sentences punishment matching the facts found by the jury by
requiring that aggravating factors be proved to a jury beyond a
reasonable doubt. The right to jury findings and proof beyond a
reasonable doubt is fundamental in our system of criminal
procedure. But because the purpose of the rule announced in
Blakely is not, under Rutherford, conclusive of full
retroactivity, we must balance all three of the Judd factors.
2. The extent of reliance on the pre-Blakely rule
Although the court of appealss decision did not balance
the three factors of the Judd test, it nonetheless discussed the
second and third factors.125 The court stated that the second
factor extent of reliance favored non-retroactivity because the
state relied for more than two decades on the presumed
constitutionality of the sentencing procedures . . . for proving
the aggravating factors that increased a defendants maximum
sentence under Alaskas presumptive sentencing law.126
The state points out that the court of appeals upheld
judicial fact-finding over twenty years ago and asserts that,
before Blakely was published, hundreds, if not thousands of
appellate opinions were issued without questioning this rule.127
After Apprendi, the state argues, Alaska appellate courts
continued to hold that presumptive sentencing was not affected by
Apprendi.128 The state correctly points out that Judds reasonable-
reliance factor does not require state officials to predict the
outcomes of 5-4 Supreme Court splits in evolving lines of case
law.129 Because the reliance on the pre-Blakely standards was
reasonable and consistent for over twenty years, this factor
militates against full retroactivity.
3. The effect on the administration of justice of
applying Blakely retroactively
The court of appeals concluded that the third factor
the effect on the administration of justice of a retroactive
application of Blakely favored retroactivity.130 The court noted
that many of the defendants who were sentenced in violation of
Blakely have completed their sentences and stated that giving
full retroactivity to Blakely would not affect the administration
of justice in those cases.131 The court then estimated that there
were a few hundred cases that might be affected by Blakely,
basing this estimate on the Appellate Court Clerks Office
statement that slightly over 250 Blakely appeals [are] currently
stayed and awaiting our decision of this retroactivity issue.132
But based on the Blakely cases it had already decided, the court
of appeals concluded that only a few defendants would be entitled
to relief.133 The court concluded that there would be a relatively
small impact on the criminal justice system and that this factor
favored retroactivity.134
Judd asks what effect retroactive application will have
on the administration of justice, not how many appeals might be
successful. Full retroactive application thus looks at the
entire number of retroactivity claims that will be brought and
asks how those cases will affect the administration of justice.
Review of even 250 cases would take up a great amount of court
and staff time and it seems certain that there may be hundreds
more cases that have not yet been brought back to the trial
courts. We agree with the observations of Chief Judge Coats, who
stated in dissent that [d]efendants who conceded aggravating
factors . . . can claim that they would not have conceded [the
factor] had they known they were entitled to a jury trial.135 If a
defendants sentence is overturned, more time will be spent re-
litigating aggravating factors. Prosecutors will have to
reevaluate whether to bring the charges, old witnesses will have
to be found, juries may have to be empaneled, court time will be
spent relitigating, defense attorney and prosecutor time will be
spent relitigating, and Department of Corrections time will be
spent transporting convicted defendants to the courtroom. We
think Chief Judge Coats correctly summarized the result as
follows: By making Blakely retroactive, we are not advancing an
important constitutional principle. We are creating a major
administrative problem. Whether a person gets his sentence
reduced may turn more on good fortune than anything else.136 We
conclude that the burden factor weighs against full
retroactivity.
4. Conclusion: no full retroactivity
Weighing all three factors of the Judd test is a
difficult exercise. It is clear that many defendants received
sentences that are inconsistent with Blakely, because aggravating
factors were not proved to a jury beyond a reasonable doubt. But
defendants sentenced before Blakely were not deprived of
procedural safeguards. The aggravating factors had to be proved
by the elevated clear and convincing evidence standard. There
is, as the Supreme Court stated in Summerlin, no reason to think
judges are less accurate than juries in finding facts.137
Furthermore, all actors in the criminal justice system relied on
the old standard for over twenty years with no warning that it
was unconstitutional. The sentencing guidelines provided notice
to the defendants of the consequences of their acts and helped to
ensure equal protection by providing uniformity. Finally, the
administrative burden of full retroactive application would be
overwhelming and would severely impact current criminal procedure
by affecting the time all participants in the criminal justice
system have available to spend on current trials. After
considering the purpose of the procedural rule announced in
Blakely, the reliance on the pre-Blakely rule, and the burden of
full retroactive application of Blakely, we conclude that Blakely
does not merit full retroactive application under the Judd
standard.
F. Other Issues
The parties and the amicus raise other related issues:
whether we should adopt Blakely as a matter of state law; whether
a Blakely claim is properly brought under Alaska Criminal Rule
35(a) or Criminal Rule 35.1; and whether post-conviction relief
actions are governed by the retroactivity standard in AS
12.72.010. We briefly address each of these issues in turn.
1. Should we adopt Blakely under Alaska law?
Smart, Douglas, and the amicus argue that we should
adopt the Blakely reasoning as a matter of state law under the
Alaska Constitutions due process and right to a jury clauses.
Even if we were to adopt Blakely as a matter of state law, Judd
would govern full retroactivity. The new standard would
consequently not apply to Smart and Douglas. It is therefore not
necessary to decide the issue here.
2. Are Blakely challenges properly brought under
Alaska Criminal Rule 35(a)?
The state argues that a Blakely challenge is a claim
that the manner or procedure of imposing the sentence was
illegal, not that the sentence itself was illegal. The state
points out that the term illegal sentence has been narrowly
construed and argues that Rule 35(a) does not permit challenges
to sentences that were imposed through procedures that were
legally defective.138 The state concludes that a Blakely challenge
can only be brought under Rule 35.1.139
Smart and Douglas assert that Rule 35(a) is the proper
means to bring a Blakely challenge. They argue that their
sentences are illegal because each exceeded the prescribed
statutory maximum and were not authorized by either judgment of
conviction.
We do not have to decide the issue. Because
Blakely is not fully retroactive, neither the sentences nor the
procedures used to impose the sentences were illegal.
3. Are post-conviction relief actions governed by the
retroactivity standard in AS 12.72.010 and Rule
35.1?
The state argues that if a Blakely challenge must be
brought under Rule 35.1, both Rule 35.1 and AS 12.72.010 adopt
the Teague standard to determine whether Blakely is retroactive.140
Because we hold that Blakely is not fully retroactive, we do not
reach this issue and express no opinion about it.141
IV. CONCLUSION
Applying Alaskas standard first announced in Judd to
the present question of full retroactivity, we hold that Blakely
is not retroactive as to defendants whose sentences were final
when Blakely was decided on June 24, 2004. We therefore REVERSE
the holdings of the court of appeals in Smart v. State and
Douglas v. State and REMAND for proceedings consistent with this
opinion.
_______________________________
1 Blakely v. Washington, 542 U.S. 296 (2004).
2 Smart v. State, Mem. Op. & J. No. 4653 at 1 (Alaska
App., January 15, 2003); see former AS 12.55.125(d)(1).
3 Id. at 1. The court found the aggravating factor set
out in AS 12.55.155(c)(13) (the defendant knowingly directed the
conduct constituting the offense at an active officer of the
court or at an active or former judicial officer, prosecuting
attorney, law enforcement officer, correctional employee, fire
fighter, emergency medical technician, paramedic, ambulance
attendant, or other emergency responder during or because of the
exercise of official duties).
4 Id.
5 Former AS 12.55.125(c)(3).
6 The judge found the following aggravating factors set
out in AS 12.55.155(c): (3) (leader of a group of three or more
persons who participated in the offense), (6) (conduct created a
risk of imminent physical injury to three or more persons, other
than accomplices), (14) (member of organized group of five or
more persons, and the offense was committed to further the
criminal objectives of the group), and (22) (knowingly directed
the conduct . . . at a victim because of that persons race, sex,
color, creed, physical or mental disability, ancestry, or
national origin).
7 Court of Appeals Case No. A-7528; see also Douglas v.
State, Mem. Op. & J. No. 5155 (Alaska App., December 20, 2006).
8 Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000).
9 Blakely v. Washington, 542 U.S. 296, 305 (2004).
10 Id.
11 Judd v. State, 482 P.2d 273 (Alaska 1971).
12 Teague v. Lane, 489 U.S. 288 (1989). Teague was a
plurality opinion that has subsequently been adopted by a
majority of the Court. See, e.g., Danforth v. Minnesota, 552
U.S. __, 128 S. Ct. 1029 (2008); Saffle v. Parks, 494 U.S. 484
(1990).
13 Smart v. State, 146 P.3d 15, 29 (Alaska App. 2006).
14 Id. at 38.
15 Id. at 38-39.
16 Douglas v. State, Mem. Op. & J. No. 5155 (Alaska App.,
December 20, 2006).
17 Grinols v. State, 74 P.3d 889, 891 (Alaska 2003) (We
interpret the Alaska Constitution using our independent
judgment.); Todd v. State, 917 P.2d 674, 677 (Alaska 1996)
(applying independent judgment standard to issue involving
questions of federal and state constitutional law).
18 Applying a new constitutional principle to criminal
cases on collateral review gives the principle full
retroactivity. See, e.g., Yerrington v. Anchorage, 675 P.2d 649,
651 (Alaska App. 1983) (defining full retroactivity as
application [of new rules] to final decisions challenged in post-
conviction relief proceedings as well as pending cases).
Applying a new principle to cases on direct review, to cases at
the trial level, to any case not yet charged, and to crimes not
yet committed gives the principle limited retroactivity. Id.
(stating that new rules that did not meet the requirements for
full retroactivity would be given limited retroactivity and
applied to cases then pending on appeal). We use this
terminology in this opinion.
19 Apprendi, 530 U.S. at 490.
20 Id. at 469-70.
21 Id. at 470.
22 Id.
23 Id.
24 Id. at 471.
25 Id.
26 Id. at 468-69.
27 Id. at 474.
28 Id. at 490.
29 Id. at 472, 497.
30 Blakely v. Washington, 542 U.S. 296, 298 (2004).
31 Id. at 299.
32 Id.
33 Id. at 300.
34 Id. at 303 (emphasis in original).
35 Id. at 303-04 (emphasis in original).
36 Id. at 305.
37 Id. at 301, 303.
38 Teague v. Lane, 489 U.S. 288 (1989) (plurality
opinion).
39 Danforth v. Minnesota, 552 U.S. __, 128 S. Ct. 1029
(2008).
40 Id. at 1032.
41 Id. at 1031. This holding makes it unnecessary to
consider whether Teague is binding on state courts. Only the
states reply brief was filed after Danforth. The opening briefs
of the state, Douglas, and Smart anticipated that Danforth, when
published, would control which standard applies to these cases.
The state argues that Teague is binding in state court
collateral proceedings deciding the retroactivity of a new rule
based on the Federal Constitution. The respondents argue that
Teague is only binding on federal courts in a federal habeas
corpus collateral proceeding, and is not binding on state courts.
Danforths ruling renders this dispute moot.
42 Id. at 1041.
43 Id.
44 Id. at 1046.
45 Id. at 1042.
46 Judd v. State, 482 P.2d 273 (Alaska 1971).
47 Id. at 278.
48 Linkletter v. Walker, 381 U.S. 618 (1965).
49 Mapp v. Ohio, 367 U.S. 643 (1961).
50 Linkletter, 381 U.S. at 622. The Court noted that Mapp
had been applied to cases still pending on direct review at the
time it was decided. Id.
51 Id. at 640.
52 Williams v. United States, 401 U.S. 646, 651-52 (1971).
53 Williams v. United States, 401 U.S. 667, 676 (1971).
54 Id. at 679.
55 Id.
56 Id. at 693 (quoting Palko v. Connecticut, 302 U.S. 319
(1937)).
57 Id. at 665.
58 Id. at 666.
59 United States v. Johnson, 457 U.S. 537 (1982).
60 Griffith v. Kentucky, 479 U.S. 314 (1987).
61 Teague v. Lane, 489 U.S. 288, 292 (1989) (plurality
opinion).
62 We use rule in this context to mean a judicially
adopted principle of law, not a court procedural rule. Blacks
Law Dictionary generally defines rule as an established and
authoritative standard or principle, and the rule of law as [t]he
doctrine that general constitutional principles are the result of
judicial decisions determining the rights of private individuals
in the courts. Blacks Law Dictionary 1357, 1359 (8th ed. 2004).
Justice Stevens explained in Danforth that a new rule the result
of a case not dictated by precedent is not a rule of [the
Courts] devising or the product of [its] own views about sound
policy. Danforth, 128 S. Ct. at 1035. [T]he source of a new
rule is the Constitution itself, not any judicial power to create
new rules of law, and, according to Justice Stevens, the
underlying right necessarily pre-exists [the Courts] articulation
of the new rule. Id.
63 As noted, under Judd we look at the following three
criteria to determine questions of retroactivity: (a) the purpose
to be served by the new standards; (b) the extent of the reliance
by law enforcement authorities on the old standards; and (c) the
effect on the administration of justice of a retroactive
application of the new standards. Judd v. State, 482 P.2d 273,
277-78 (Alaska 1971); see also State v. Semancik, 99 P.3d 538,
543 (Alaska 2004) (reaffirming Judd). As we discuss later,
[w]here the purpose of the rule is primarily related to the
integrity of the verdict, the application thereof has generally
extended to all cases. Rutherford v. State, 486 P.2d 946, 952
(Alaska 1971). New constitutional doctrines that only marginally
or secondarily concern the integrity of the fact-finding process
require a careful balancing analysis of all three factors. Id.
at 953.
64 Teague, 489 U.S. at 311-12.
65 See Brian Hoffstadt, How Congress Might Redesign a
Leaner, Cleaner Writ of Habeas Corpus, 49 Duke L.J. 947, 976-77
(2000) (noting that since Teague only one new rule has fit under
the first exception and none has fit under the second exception).
The Supreme Court has stated that the second Teague exception is
reserved only for truly watershed rules . . . [and] it is
unlikely that any of these watershed rules ha[s] yet to emerge
[since Teague]. Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001)
(internal citations omitted). The Court later stated that Gideon
v. Wainwright, 372 U.S. 335 (1963), qualifies under this
exception. Whorton v. Bockting, 549 U.S. 406, 419 (2007).
66 In Danforth the Court agreed with Minnesotas argument
that it may grant its citizens broader protection than the
Federal Constitution requires by enacting appropriate legislation
or by judicial interpretation of its own Constitution. Danforth,
128 S. Ct. at 1046. The Court stated that [s]tates that give
broader retroactive effect to this Courts new rules of criminal
procedure do not do so by misconstruing the federal Teague
standard. Rather, they have developed state law to govern
retroactivity in state postconviction proceedings. Id. (emphasis
in original).
67 United States v. Price, 400 F.3d 844, 849 (10th Cir.
2005) (holding that Blakely is not retroactive under Teague);
Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005) (same).
Other federal courts of appeals have stated that Blakely is not
fully retroactive but have limited their analysis to noting that
the Supreme Court has not yet declared Blakely retroactive. See,
e.g., Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004)
(dismissing motion for authorization, and holding that [t]he
Supreme Court has not made the Blakely rule applicable to cases
on collateral review); In re Dean, 375 F.3d 1287, 1290 (11th Cir.
2004) (denying application for leave to file second or successive
motion to vacate sentence, and stating that Supreme Court had not
expressly declared Blakely retroactive).
68 Price, 400 F.3d at 848-49; Schardt, 414 F.3d at 1035-
37.
69 See Carmichael v. State, 927 A.2d 1172, 1179 (Me. 2007)
(applying Teague test and holding that Blakely is not
retroactive); State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005)
(same); State v. Evans, 114 P.3d 627, 633 (Wash. 2005) (same).
70 Based on the Supreme Courts reasoning in Schriro v.
Summerlin, 542 U.S. 348, 356 (2004), the federal courts of
appeals treatment of Blakely as non-retroactive, and the fact
that no case has been found to fall within one of the Teague
exceptions, we think it is unlikely the Supreme Court will hold
that Blakely is fully retroactive. The Court in Summerlin
considered a claim that a new rule requiring that aggravating
factors resulting in the death penalty be found by a jury was a
watershed rule[] of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.
Id. at 355 (internal citations omitted). But the Court held
that allowing judicial fact-finding instead of jury fact-finding
did not create an impermissibly large risk of injustice. Id. at
356.
71 State v. Glass, 596 P.2d 10, 12 (Alaska 1979); see also
Wright v. West, 505 U.S. 277, 304 (1992); Teague v. Lane, 489
U.S. 288, 301 (1989) (plurality opinion).
72 Apprendi v. New Jersey, 530 U.S. 466, 466 (2000);
Smart v. State, Mem. Op. & J. No. 4653 (Alaska App., January 15,
2003).
73 Teague, 489 U.S. at 301 (emphasis in original).
74 Id.
75 Beard v. Banks, 542 U.S. 406, 413 (2004) (emphasis in
original) (quoting Lambix v. Singletary, 520 U.S. 518, 527-28
(1997)).
76 See Smart v. State, 146 P.3d 15, 40-41 (Alaska App.
2006) (Stewart, J., concurring); id. at 41-42 (Coats, C.J.,
dissenting); id. at 48-49 (Mannheimer, J., concurring).
77 See Blakely v. Washington, 542 U.S. 296, 301-04 (2004).
78 Id. at 303.
79 See Simpson v. United States, 376 F.3d 679, 681 (7th
Cir. 2004) (stating that before Blakely was decided, every
federal court of appeals had held that Apprendi did not apply to
guideline calculations made within the statutory maximum (citing
United States v. Hughes, 369 F.3d 941, 947 (6th Cir. 2004)));
United States v. Francis, 367 F.3d 805, 820 (8th Cir. 2004);
United States v. Jardine, 364 F.3d 1200, 1209 (10th Cir. 2004);
United States v. Alvarez, 358 F.3d 1194, 1211-12 (9th Cir. 2004);
United States v. Phillips, 349 F.3d 138, 143 (3d Cir. 2003);
United States v. Patterson, 348 F.3d 218, 228-29 (7th Cir. 2003);
United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002);
United States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir. 2001);
United States v. Webb, 255 F.3d 890, 898 (D.C. Cir. 2001); United
States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001); United States
v. Caba, 241 F.3d 98, 100 (1st Cir. 2001); United States v.
Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001).
80 The state likewise argues that Apprendis application to
presumptive sentencing was subject to debate among reasonable
jurists. This is consistent with the views of federal courts of
appeals considering similar arguments. See Schardt v. Payne, 414
F.3d 1025, 1035 (9th Cir. 2005) (holding that Blakely is new rule
and pointing out that [e]very circuit court of appeals that
addressed the question presented in Blakely reached the opposite
conclusion from the rule subsequently announced by the Supreme
Court). But see Carmona v. United States, 390 F.3d 200, 203 &
n.1 (2d Cir. 2004) (declining to allow Blakely challenge but
suggesting Supreme Court might decide it is not new rule). We
agree with the states contention here, and therefore reject
Smarts argument that after Apprendi but before Blakely it was
unreasonable for judges to continue finding proposed aggravating
factors by clear and convincing evidence.
81 Judd v. State, 482 P.2d 273, 277-78 (Alaska 1971)
(adopting retroactivity test announced in Linkletter v. Walker,
381 U.S. 618, 636-38 (1965)).
82 Blakely, 542 U.S. at 304 (internal citation omitted).
83 Smart v. State, 146 P.3d 15, 33 (Alaska App. 2006).
84 Id. at 29, 38.
85 Id. at 30.
86 The court of appeals focused on the standard of proof
even though the Supreme Courts focus in Blakely was on the
centrality of the right to a jurys decision. In Blakely the
Supreme Court stated that the rule it expressed in Apprendi,
reflects two longstanding tenets of common-
law criminal jurisprudence: that the truth
of every accusation against a defendant
should afterward be confirmed by the
unanimous suffrage of twelve of his equals
and neighbours, 4 W. Blackstone, Commentaries
on the Laws of England 343 (1769), and that
an accusation which lacks any particular fact
which the law makes essential to the
punishment is . . . no accusation within the
requirements of the common law, and it is not
accusation in reason, 1 J. Bishop, Criminal
Procedure 87, p. 55 (2d ed. 1872).
Blakely, 542 U.S. at 301-02. Furthermore, the Court stated in
Blakely that its commitment to Apprendi in this context reflects
not just respect for longstanding precedent, but the need to give
intelligible content to the right of jury trial,[which is] a
fundamental reservation of power in our constitutional structure.
Id. at 305-06.
87 Smart, 146 P.3d at 32 (quoting Rutherford v. State, 486
P.2d 946, 952-53 (1971)).
88 Williams v. United States, 401 U.S. 646, 653 (1971).
89 Smart, 146 P.3d at 32. The question in Rutherford was
whether to apply Glasgow v. State, 469 P.2d 682 (Alaska 1970), to
a case that was still on direct review when Glasgow was decided.
Rutherford, 486 P.2d at 952. Glasgow held that a defendants
failure to demand a speedy trial did not waive his speedy trial
right. Glasgow, 469 P.2d at 688-89.
90 Smart, 146 P.3d at 32 (quoting Rutherford, 486 P.2d at
952).
91 Id. at 33.
92 Rutherford, 486 P.2d at 952-53.
93 Id. at 952.
94 Id. at 953.
95 Id. (internal citation and quotations omitted).
96 Id. at 954.
97 Id. at 952-53.
98 Id. at 953.
99 Schriro v. Summerlin, 542 U.S. 348, 356 (2004)
(emphasis in original) (internal quotations omitted). While the
Court answered this question as part of its Teague analysis, it
applies as well to the same question presented in a Judd
analysis.
100 Id. at 355-58. Summerlin concerned the new rule
announced by the Court in Ring v. Arizona, 536 U.S. 584 (2002).
Ring applied Apprendi to a death sentence imposed under the
Arizona sentencing scheme and concluded that the existence of an
aggravating factor necessary to authorize the death penalty must
be proved to a jury rather than a judge. Summerlin, 542 U.S. at
351 (discussing Ring).
101 Id. at 350.
102 Id. at 351. In Summerlin the Court applied Teague to
determine that Rings holding, which applied Apprendi, was
properly classified as procedural and was not a watershed rule
implicating the fundamental fairness and accuracy of criminal
procedure. Id. at 353-58. Ring held that a jury must find facts
supporting aggravating factors. Ring, 536 U.S. at 609.
103 Summerlin, 542 U.S. at 355-56 (internal quotations
omitted) (emphasis in original).
104 Id. at 358. Justice OConnor, dissenting in Blakely,
suggested that the Courts conclusion in Summerlin held that
Apprendi does not apply retroactively on habeas review. Blakely
v. Washington, 542 U.S. 296, 323 (2004) (OConnor, J.,
dissenting).
105 Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968)
(quoting Stovall v. Denno, 388 U.S. 293, 297 (1967)); see also
McConnell v. Rhay, 393 U.S. 2, 3 (1968).
106 McConnell, 393 U.S. at 4.
107 Arsenault, 393 U.S. at 6.
108 Berger v. California, 393 U.S. 314, 315 (1969) (quoting
Barber v. Page, 390 U.S. 719, 721 (1968)); see also Roberts v.
Russell, 392 U.S. 293 (1968).
109 This is not to say that any new rule interpreting the
confrontation clause or the right to counsel necessarily requires
full retroactivity. We cite these cases to demonstrate that the
functions of the right to counsel and the right to confront
witnesses are closely related to truth-finding in a way that the
rule announced in Blakely is not.
110 Smart v. State, 146 P.3d 15, 30-31 (Alaska App. 2006)
(citing and discussing In re Winship, 397 U.S. 358 (1970)).
111 Winship, 397 U.S. at 364.
112 Id. at 363-64.
113 Ivan V. v. City of New York, 407 U.S. 203, 205 (1972).
114 Winship, 397 U.S. at 359 n.1.
115 See United States v. Sanchez-Cervantes, 282 F.3d 664,
671 (9th Cir. 2002). In Sanchez-Cervantes the Ninth Circuit held
that Apprendi does not apply retroactively. Id. The court
reasoned that [t]he application of Apprendi only affects the
enhancement of a defendants sentence once he or she has already
been convicted beyond a reasonable doubt. Therefore, it does not
rise to the level of importance of Winship . . . . Id.
116 Id. (quoting Hankerson v. North Carolina, 432 U.S. 233,
243 (1977) (emphasis in original)).
117 In contrast, a Winship violation calls into question
the defendants actual guilt or innocence because every fact
necessary to constitute the crime was not proved beyond a
reasonable doubt and would probably require vacating the sentence
and remanding for a new trial. See Winship, 397 U.S. at 364.
118 State v. Houston, 702 N.W.2d 268, 274 (Minn. 2005)
(internal quotations omitted) (applying Teague retroactivity
standard and holding that Blakely is not retroactive).
119 Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005)
(concluding that Blakely is procedural rule); United States v.
Price, 400 F.3d 844, 848 (10th Cir. 2005) (Blakely is
procedural); Sepulveda v. United States, 330 F.3d 55, 61 (1st
Cir. 2003) (referring to rule announced in Apprendi as procedural
mandate); Coleman v. United States, 329 F.3d 77, 83 (2d Cir.
2003) (Apprendi announced procedural rule); United States v.
Jenkins, 333 F.3d 151, 154 (3d Cir. 2003) (same); United States
v. Brown, 305 F.3d 304, 309 (5th Cir. 2002) (same); Curtis v.
United States, 294 F.3d 841, 843 (7th Cir. 2002) (same); United
States v. Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir. 2002)
(same); United States v. Moss, 252 F.3d 993, 998 (8th Cir. 2001)
(same); McCoy v. United States, 266 F.3d 1245, 1257 n.16 (11th
Cir. 2001) (same); United States v. Sanders, 247 F.3d 139, 147
(4th Cir. 2001) (Apprendi constitutes a procedural rule because
it dictates what fact-finding procedure must be employed to
ensure a fair trial.).
120 Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (citing
Saffle v. Parks, 494 U.S. 484, 495 (1990) (quoting Teague v.
Lane, 489 U.S. 288, 311 (1989) (plurality opinion))).
121 Id. at 352 (internal quotations omitted).
122 See Sepulveda, 330 F.3d at 61 (holding that Apprendi
does not apply retroactively); United States v. Swinton, 333 F.3d
481, 491 (3d Cir. 2003) (same); Coleman, 329 F.3d at 90 (same);
Goode v. United States, 305 F.3d 378, 382 (6th Cir. 2002) (same);
Brown, 305 F.3d at 310 (same); Curtis, 294 F.3d at 844 (same);
United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002)
(same); McCoy, 266 F.3d at 1258 (same); Moss, 252 F.3d at 997
(same); Sanders, 247 F.3d at 151 (same); Jones v. Smith, 231 F.3d
1227, 1236 (9th Cir. 2000) (same).
123 Sanders, 247 F.3d at 150; accord Moss, 252 F.3d at 999
(Apprendi appears no more important to a fair trial than rules
previously addressed by the Court . . . which the Court refused
to apply retroactively[.]); Sanchez-Cervantes, 282 F.3d at 669
(We do not believe that requiring the jury to make . . .
determinations beyond a reasonable doubt will greatly affect the
accuracy of convictions. Nor is this rule a bedrock procedural
element.).
124 Schardt, 414 F.3d at 1036 (concluding that Blakely is
not watershed rule); Price, 400 F.3d at 848 (same).
125 Smart v. State, 146 P.3d 15, 33-34 (Alaska App. 2006).
126 Id. at 33-34.
127 The state cites the court of appealss decision in Huf
v. State, 675 P.2d 268, 271-73 (Alaska App. 1984), as the initial
case upholding judicial fact-finding.
128 The state correctly cites State v. Malloy, 46 P.3d 949
(Alaska 2002), and Wright v. State, 46 P.3d 395 (Alaska App.
2002), for this proposition.
129 We assume the state is referring to Blakely and
Apprendi, both of which were 5-4 decisions. See Blakely v.
Washington, 542 U.S. 296, 297 (2004); Apprendi v. New Jersey, 530
U.S. 466, 468 (2000).
130 Smart, 146 P.3d at 34.
131 Id.
132 Id. There are currently 268 stayed cases.
133 Id. The court stated that out of thirty-five appeals,
only two defendants were held entitled to relief. Id.
134 Id. at 35.
135 Id. at 44 (Coats, C.J., dissenting).
136 Id.
137 Schriro v. Summerlin, 542 U.S. 348, 355-56 (2004).
138 The state relies heavily on the court of appealss
decision in Bishop v. Municipality of Anchorage, 685 P.2d 103
(Alaska App. 1984). In Bishop the court stated that under Rule
35(a) [t]he term illegal sentence has been narrowly construed and
applies only to sentences which the judgment of conviction did
not authorize. Id. at 105.
139 Rule 35(a) states, [t]he court may correct an illegal
sentence at any time. Rule 35.1 in pertinent part states:
(a) Scope: A person who has been convicted
of or sentenced for a crime may institute a
proceeding for post-conviction relief under
AS 12.72.01012.72.040 if the person claims:
(1) that the conviction or the sentence was
in violation of the constitution of the
United States or the constitution or laws of
Alaska;
(2) that the court was without jurisdiction
to impose sentence;
. . . .
(7) that
(A) there has been a significant change
in law, whether substantive or procedural,
applied in the process leading to the
applicants conviction or sentence;
(B) the change in law was not
reasonably foreseeable by a judge or a
competent attorney;
(C) it is appropriate to retroactively
apply the change in law because the change in
law requires observance of procedures without
which the likelihood of an accurate and fair
conviction is seriously diminished; and
(D) the failure to retroactively apply
the change in law would result in a
fundamental miscarriage of justice, which is
established by demonstrating that, had the
change in law been in effect at the time of
the applicants trial, a reasonable trier of
fact would have a reasonable doubt as to the
guilt of the applicant . . . .
140 The text of AS 12.72.010 is identical in pertinent
parts to Rule 35.1. See supra note 139 for text. There are only
a few minor differences in language between the two for example
this state in AS 12.72.010(1) and Alaska in Rule 35.1(a)(1).
141 There is likewise no reason to discuss the comment of
the court of appeals that the legislatures adoption of a Teague-
like analysis in AS 12.72.010 raise[s] serious questions under
the doctrine of separation of powers. Smart v. State, 146 P.3d
15, 29 (Alaska App. 2006).
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