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State v. Dague (9/15/2006) ap-2062

State v. Dague (9/15/2006) ap-2062

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA, )
) Court of Appeals No. A-8914
Petitioner, ) Trial Court No. 3AN-97-3317 Cr
)
v. )
) O P I N I O N
MICHELE K. DAGUE, )
)
Respondent. ) No. 2062 September 15, 2006
)
          Petition for Review from the Superior  Court,
          Third Judicial District, Anchorage, Philip R.
          Volland, Judge.

          Appearances:     Kenneth    M.    Rosenstein,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Scott J. Nordstrand, Acting Attorney General,
          and   David  W.  M rquez,  Attorney  General,
          Juneau,   for   the  Petitioner.    Elizabeth
          Brennan and Quinlan Steiner, Assistant Public
          Defenders,  and  Barbara  K.  Brink,   Public
          Defender, Anchorage, for the Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004), the United States Supreme Court held that
when  the  maximum sentence for a defendants crime hinges  on  an
issue   of   fact,  aside  from  the  defendants  prior  criminal
convictions,   the   Sixth  Amendment  to   the   United   States
Constitution  guarantees the defendant a right to jury  trial  on
this  issue  of  fact, and a right to demand that the  government
prove this fact beyond a reasonable doubt.1
          Under the pre-March 2005 version of Alaskas presumptive
sentencing  law, a sentencing judge was authorized to exceed  the
prescribed presumptive term only if the State proved one or  more
of  the  aggravating factors listed in AS 12.55.155(c), or proved
extraordinary circumstances as defined in AS 12.55.165.   In  our
post-Blakely  decisions,  we have repeatedly  acknowledged  that,
with  the  exception of aggravating factors  based  solely  on  a
defendants   prior  convictions,  Alaskas  pre-2005   presumptive
sentencing  law violated the Sixth Amendment right to jury  trial
recognized in Blakely because (1) the pre-2005 law declared  that
aggravating factors were to be litigated to, and decided by,  the
sentencing  judge rather than a jury, and because (2) the  States
burden of proof regarding these aggravating factors was clear and
convincing evidence rather than beyond a reasonable doubt.2
          In the present case, we are asked to decide whether, if
Blakely  entitles a defendant to a jury trial on  an  aggravating
factor  listed in AS 12.55.155(c), the defendant likewise  has  a
right  to demand grand jury indictment on that aggravating factor
either  as  a  matter  of  federal  law  under  Blakely  and  its
predecessor,  Apprendi v. New Jersey,3 or under  the  grand  jury
clause of the Alaska Constitution (Article I, Section 8).
          In  Apprendi and Blakely, the Supreme Court  held  that
any  distinction  between  an  element  of  the  offense  and   a
sentencing factor does not alter a defendants right to jury trial
under the Sixth Amendment.  That is, Apprendi and Blakely declare
that  when  a defendants maximum sentence hinges on an  issue  of
fact  (other than a prior conviction), the defendant has a  Sixth
Amendment  right  to  trial  by  jury  on  that  issue  of   fact
regardless of whether state law categorizes that issue of fact as
an element of the offense or as a sentencing factor.
          The  question now before us is whether, in states  that
have  presumptive sentencing laws, Blakely has completely  erased
all  legal distinctions between (1) elements of a crime  and  (2)
sentencing factors which, if proved, increase the upper range  of
the  judges sentencing authority.  If, under Blakely, a defendant
is  entitled to a jury trial on an issue of fact, must that issue
of  fact  be treated as an element of the crime for all  purposes
including  the right to grand jury indictment?  Or  does  Blakely
allow  the  states  to  maintain procedural distinctions  between
elements and sentencing factors, so long as the defendants  Sixth
Amendment right to jury trial is honored?
          For  the  reasons explained here, we conclude that  the
latter  formulation is the correct one.  Blakely does not require
the   states  to  abolish  all  procedural  distinctions  between
elements  and  sentencing factors.  Moreover, as we also  explain
here, this Court has repeatedly held that the aggravating factors
listed  in  AS  12.55.155(c) are not elements of  the  defendants
crime  under Alaska law.  We therefore conclude that, even though
a  defendant may have a Sixth Amendment right to a jury trial  on
an  aggravating factor listed in AS 12.55.155(c),  the  defendant
does not have a right to grand jury indictment on that factor.

The procedural background of this litigation

          Michele  K. Dague was prosecuted for  second-
degree murder when, in 1997, a ten-month-old infant  in
her   care  died  from  massive  head  trauma.    Dague
initially  claimed  that the baby had  sustained  these
injuries  by  falling  from a couch,  but  Dague  later
admitted at her trial that she had thrown the  baby  to
the floor.
          Given  Dagues concession that she had  caused
the babys injuries, the issue litigated at Dagues trial
was  her  mental  state when she did this.   Dague  was
charged    with   second-degree   murder    under    AS
11.41.110(a)(2); that is, the State alleged that  Dague
had  acted  with extreme indifference to the  value  of
human   life.   Dague  asserted  that  she  had   acted
unthinkingly  reflexively throwing the baby  away  from
her  because  the  babys screams were exacerbating  her
migraine headache.
          The  jury  acquitted Dague  of  second-degree
murder  but  convicted  her of the  lesser  offense  of
manslaughter.  In other words, the jury found that  the
State had failed to prove that Dague acted with extreme
indifference to the value of human life, but  the  jury
nevertheless concluded that Dague had acted  recklessly
regarding the possibility that her actions would  cause
the infants death.4
          This  manslaughter verdict created a  Blakely
issue.   Under  Alaska  law,  defendants  convicted  of
second-degree  murder  face indeterminate  sentencing.5
Thus,  if  Dague  had been convicted  of  second-degree
murder,  the  Blakely decision would not have  affected
her  sentencing for that crime.6  But under Alaska law,
defendants  convicted of manslaughter face  presumptive
sentencing.7   Under  the pre-1999 version  of  Alaskas
presumptive  sentencing law (the version in  effect  at
the  time  of Dagues offense), Dague (who was  a  first
felony  offender) faced a presumptive term of  5  years
imprisonment.8
          (In  the  superior court, the State took  the
position that Dague was subject to a 7-year presumptive
term under AS 12.55.125(c)(2)(B).  This statute imposes
a  7-year  presumptive term on a first felony  offender
convicted  of manslaughter if [the defendants]  conduct
...  was  knowingly directed towards a child under  the
age of 16. But Dagues offense occurred in 1997, and  AS
12.55.125(c)(2)(B)   was  not  enacted   until   1999.9
Accordingly,  this  sentencing  provision  can  not  be
applied to Dague.)
          Dagues   5-year  presumptive  term  was   the
ceiling  on  the  superior courts sentencing  authority
unless  the State proved one or more of the aggravating
factors  listed in AS 12.55.155(c)  in which  case  the
superior court would have had the authority to sentence
          Dague to any term of imprisonment up to the statutory
maximum  (20  years).   See AS  12.55.155(a)  (pre-2005
version) and AS 12.55.125(c) (establishing a sentencing
range of 0 to 20 years for class A felonies).
          The jury returned its manslaughter verdict on
Friday,  October 1, 2004.  The State asked the superior
court  to  hold the jury until Monday so that the  jury
could  consider  aggravating factors  relevant  to  the
manslaughter  conviction.  In  response,  Dague  argued
that  the  State  was barred from pursuing  aggravating
factors  because  none were alleged in the  indictment.
She argued in the alternative that, even if aggravating
factors  did  not have to be pleaded in the indictment,
she  nevertheless had received insufficient  notice  of
the States proposed aggravating factors.
          Superior   Court  Judge  Philip  R.   Volland
ordered  the State to provide immediate notice  of  its
proposed aggravating factors, and he agreed to hold the
jury  over  until Monday  at which time he  would  hear
arguments  from  the  parties on two  issues:   whether
aggravators needed to be pleaded in the indictment, and
whether  it was feasible to delay Dagues jury trial  to
resolve the various legal issues surrounding the States
post-verdict proposal of aggravating factors.
          On   Monday,  the  State  announced  that  it
intended  to  propose  one   aggravating  factor:    AS
12.55.155(c)(5)  that Dague knew or should  have  known
that   the   victim  of  her  crime  was   particularly
vulnerable.
          Dague  argued  that, because  of  the  United
States  Supreme  Courts decision in  Blakely,  she  was
entitled  to  grand jury indictment on any  aggravating
factor.   Dague also contended that she was  prejudiced
by  the  lack  of  pre-trial  notice  of  the  proposed
aggravator;  she asserted that she had been  unable  to
plan  her  trial strategy so as to counter the proposed
aggravator, and she also asserted that the States post-
verdict  notice of the aggravator hampered her  ability
to  make  strategic  decisions on how  to  prepare  for
sentencing.  Dague further argued that she was entitled
to  have  the  same jury that decided  her  guilt  also
decide   the  proposed  aggravating  factor,  and   she
contended  that the States post-verdict notice  of  the
aggravator made it impracticable to hold the jurors any
longer.   For  all  of these reasons, Dague  asked  the
superior court to discharge the jury and bar the  State
from pursuing the proposed aggravator.
          Judge  Volland acceded to Dagues  request  to
discharge the jury, and he further ruled that the State
was  barred from pursuing its proposed aggravator  with
any later jury.
          Judge  Volland concluded that,  under  Alaska
law,  a  defendants  indictment  must  allege  whatever
aggravating factors the State intends to rely on in the
event  that  the defendant is convicted of  an  offense
governed  by  presumptive  sentencing.   Judge  Volland
recognized  that  Dagues indictment  charged  her  with
second-degree  murder,  an  offense  not  governed   by
presumptive  sentencing, but the judge  concluded  that
the State should have anticipated that Dague would seek
jury   instructions   on   the   lesser   offense    of
manslaughter,   an   offense  that   is   governed   by
presumptive sentencing.
          Judge  Volland further concluded  that  Dague
would  suffer substantial unfairness if her trial  were
continued  so  as to allow litigation of  the  proposed
aggravating factor.  Although Judge Volland agreed with
the  State  that  the double jeopardy  clause  did  not
necessarily preclude holding a separate jury  trial  on
the  proposed  aggravating factor, the judge  concluded
that  a  separate trial would be unfair to Dague  under
the    particular   circumstances    of    her    case.
Specifically,  Judge Volland concluded  that,  at  this
second trial, Dague would probably wish to present more
testimony from the expert witnesses who, at trial,  had
given testimony concerning Dagues mental state when she
injured  the baby.  Because these witnesses had already
left  Alaska, and because it would be expensive to  fly
them  back,  Judge Volland concluded that it  would  be
fundamentally unfair to require Dague to  gear  up  for
another trial.
          Judge  Volland  then set a  sentencing  date,
intending   to   sentence  Dague  to   the   applicable
presumptive  term  unless  Dague  proved  one  or  more
mitigating  factors under AS 12.55.155(d).  We  granted
the States petition to review Judge Vollands rulings.

The  genesis of the grand jury issue:  the adoption  of
presumptive sentencing in Alaska

          Before  Alaskas  current criminal  code  took
effect on January 1, 1980,10 Alaska adhered to a system
of   indeterminate  sentencing.   For   each   criminal
offense, the legislature specified a range of sentences
(either in the statute defining the offense, or in  the
statute  immediately following).11  A sentencing  judge
had  the  authority to impose any sentence  within  the
specified range.
          In  the  late  1970s, the Alaska  Legislature
began   to   reconsider  the  policy  of  indeterminate
sentencing.   The legislatures action was prompted,  in
part, by the Alaska Judicial Councils publication of  a
statistical analysis of felony sentencing  a study that
found   significant   patterns   of   apparent   racial
disparities in sentences among many classes  of  felony
offenses.12
          In  1978, when the legislature enacted a  new
criminal code for Alaska, the legislature also  revised
Alaskas   sentencing   law   to   include   presumptive
sentencing.13   As expanded by a series of  legislative
          amendments and court decisions in the mid-1980s,14
   Alaskas   presumptive  sentencing  law   imposed   a
form of determinate sentencing on most felony offenders
although  offenders  convicted  of  the  most   serious
felonies  (e.g.,  murder  and kidnapping)  still  faced
indeterminate sentencing.
          Alaska   was  not  alone  in  moving   toward
determinate  sentencing  and  imposing  limits  on  the
sentencing  discretion of judges.  As  Justice  OConnor
noted  in  her  dissent in Blakely, the  United  States
Congress  and numerous state legislatures  had  enacted
laws  to  limit the sentencing discretion of  judges.15
    These  laws  were  based  on  the  perception  that
judges were met[ing] out an unjustifiably wide range of
sentences  to  offenders  with similar  histories  [who
were]  convicted  of  similar crimes,  committed  under
similar  circumstances,16 and that  these  [sentencing]
disparities    too    often   were   correlated    with
constitutionally suspect variables such as race.17
          Some  of  these  determinate sentencing  laws
for  example, the Federal Sentencing Guidelines and the
Washington sentencing laws at issue in Blakely  imposed
narrow  strictures  on  judges  sentencing  discretion,
based  on  a  detailed  formula that  included  various
aspects   of  the  offenders  prior  record   and   the
circumstances  of the offense.  See our  discussion  of
this  point  in Cleveland v. State, __ P.3d __,  Alaska
App.  Opinion No. 2060 (August 25, 2006), slip  opinion
at pp. 14-17; 2006 WL 2458578.
          In  contrast, Alaskas presumptive  sentencing
law  (in its pre-March 2005 version) was essentially  a
hybrid of indeterminate and determinate sentencing.  If
no  aggravating factors and no mitigating factors  were
proved, the judge had no authority to deviate from  the
specified presumptive term of imprisonment.  But if  at
least one aggravating factor was proved, the sentencing
became  upwardly  indeterminate:   the  judge  had  the
authority to impose any term of imprisonment up to  the
statutory maximum for that class of felony.  And if  at
least  one mitigating factor was proved, the sentencing
became  downwardly indeterminate:  the  judge  had  the
authority to go below the presumptive term.  Cleveland,
__ P.3d at __, slip opinion at pp. 17-18 & 20.

This  Courts  pre-Blakely  decisions holding  that  the
aggravating factors listed in AS 12.55.155(c)  are  not
elements of the offense

          In   three  previous  decisions   Hartley  v.
State,18   Kelly  v.  State,19 and  State  v.  District
Court20   this Court has held that the aggravating  and
mitigating factors listed in AS 12.55.155(c)(d) are not
elements  of  a  defendants  offense  for  purposes  of
pleading.   The  State normally has the  discretion  to
charge a defendant with a less serious offense, or with
a  less  serious  degree  of offense,  than  the  facts
support.   But  Hartley, Kelly, and State  v.  District
Court  declare  that  the State has  no  discretion  to
ignore  or  withhold the aggravating factors listed  in
AS 12.55.155(c).21   Moreover, these cases declare that
a  sentencing  judge has an independent  duty  to  take
account  of aggravating factors even if the  State  has
not raised them (and a similar duty to take account  of
mitigating factors even if the defendant has not raised
them).22    In   other  words,  the   aggravating   and
mitigating factors are not elements that the State  can
charge, or refrain from charging, in its discretion.
          Even  before our decisions in Hartley, Kelly,
and  State v. District Court, the content and structure
of  Alaskas  criminal  code (Title  11  of  the  Alaska
Statutes),  as  well as the content  and  structure  of
Alaskas  presumptive sentencing statutes in  Title  12,
suggested  that the Alaska Legislature did  not  intend
the aggravating factors listed in AS 12.55.155(c) to be
elements of the crimes defined in Title 11.
          Chapters  41 through 76 of Title  11  contain
traditional definitions of criminal offenses.  That is,
these  chapters  contain statutes that  define  various
criminal  offenses in terms of a specified  combination
of  conduct,  surrounding circumstances,  and  culpable
mental  state(s).   These same  statutes  then  declare
whether  the offense is a felony or a misdemeanor,  and
of what class.
          In  contrast,  the  list of  aggravating  and
mitigating    factors   that   apply   to   presumptive
sentencing,  and  the  rules that govern  a  sentencing
courts  application of those factors, are contained  in
AS   12.55,  the  chapter  of  Title  12  dedicated  to
sentencing.   The  aggravating and  mitigating  factors
apply  without distinction to nearly all felonies   all
felonies  except  the unclassified felonies  listed  in
AS  12.55.125(a)  and  (b), for which  the  legislature
retained indeterminate sentencing.
          This  statutory structure indicated that  the
legislature did not view the aggravating and mitigating
factors listed in AS 12.55.155 as elements which,  when
present, created higher or lesser degrees of the crimes
defined  in  Title  11.  Rather,  the  aggravating  and
mitigating factors were apparently viewed as sentencing
factors that applied across the board to the sentencing
of  all  felony offenders whose cases were governed  by
presumptive sentencing.
          In comparison, when the legislature wished  a
mitigating factor to actually lower the degree  of  the
offense, the legislature addressed this matter in Title
          11.  See, for instance, the legislatures codification
of   the   heat   of   passion   defense   to   murder,
AS  11.41.115(a), and the legislatures  creation  of  a
lesser   degree   of  kidnapping  for   offenders   who
voluntarily   release   their  victims   unharmed,   AS
11.41.300(d).
          Nevertheless,  soon after  the  enactment  of
presumptive sentencing, this Court was asked to resolve
the  question of whether the aggravating factors listed
in  AS  12.55.155(c) should be deemed elements  of  the
offense.
          This  question  was presented in  Hartley  v.
State,  653  P.2d  1052  (Alaska  App.  1982).   During
Hartleys sentencing, the judge noted that the facts  of
Hartleys  case  appeared  to establish  an  aggravating
factor that had not been raised by the prosecutor.  The
judge  then  relied on this aggravator when  sentencing
Hartley.23  On appeal, the State conceded that  Hartley
should  have  been given advance notice of  the  judges
proposed  aggravator, and a chance to respond to  it.24
However,  Hartley  argued that the  aggravating  factor
could not be used at all.
          Hartley   contended   that,   under   Alaskas
presumptive sentencing law, a sentencing judge  has  no
authority  to raise an aggravating factor  sua  sponte.
The  premise  of Hartleys argument was that aggravating
factors should be viewed as elements that increase  the
severity  of  a  felony  offense.   Hartley  took   the
position that if the State, for whatever reason, failed
to  raise a particular aggravating factor, a court  had
no  authority  to inject this aggravating element  into
the case.25
          Hartley  drew  an analogy to  cases  such  as
State  v.  Carlson, 555 P.2d 269, 271-72 (Alaska  1976)
(holding  that a superior court judge has no  authority
to  accept a defendants plea to a lesser offense if the
State  objects  to  the reduction of the  charge);  and
Public Defender Agency v. Superior Court, 534 P.2d 947,
950-51  (Alaska 1975) (holding that the superior  court
has  no  authority to order the Department  of  Law  to
initiate  and pursue an action for civil contempt  when
the  Department has decided not to pursue the  matter).
He  contended that, under the rationale of these cases,
a  sentencing judge should be barred from raising a new
element   that  is, a new aggravating  factor   if  the
State failed to raise this factor.
          Previous Alaska appellate decisions gave some
support  to  Hartleys  argument   in  particular,   his
contention that what appears to be a sentencing  factor
can actually be an element of the offense.
          In  Donlun  v.  State, 527 P.2d  472  (Alaska
1974),  the  defendant was charged with burglary  in  a
dwelling  house  under Alaskas pre-1980 criminal  code.
The  statute at issue, former AS 11.20.080  (quoted  in
its entirety in Donlun, 527 P.2d at 473 n. 2), declared
          that the normal sentence for this felony  was
imprisonment  for not less than one nor  more  than  10
years.  However, the statute then declared that if  the
burglary  was  committed  at  nighttime,  the   maximum
punishment  was imprisonment for 15 years; and  if  any
person  was  inside  the dwelling during  the  burglary
(whether  during  the  day or at  night),  the  maximum
punishment was imprisonment for 20 years.
          Although  Donluns offense occurred at  night,
and  at  a time when the dwelling was occupied, Donluns
indictment  did not specify these facts.  Nevertheless,
the  sentencing  judge  noted  that  these  aggravating
circumstances  were present in Donluns  case,  and  the
judge  apparently  concluded  that,  because  of  these
facts, Donlun could be sentenced to as much as 20 years
imprisonment.26
          The  Alaska Supreme Court concluded that  the
sentencing  judge had committed error by raising  these
aggravating circumstances sua sponte.  The court  ruled
that,  under  Alaska law, the aggravating circumstances
specified in the burglary statute had to be treated  as
elements  of  the offense.  That is, these  aggravating
circumstances  had to be pleaded in the indictment  and
proved  at  trial  if  the State wanted  to  subject  a
burglary    defendant   to   more   than    10    years
imprisonment.27  The supreme court declared:  [When]  a
criminal statute provides for graded or enhanced ranges
of   punishment   for  aggravated  instances   of   the
proscribed  offense,  an  indictment  charging   [that]
offense  must  specify the aggravating facts  [if]  the
defendant [is to be] exposed to an increased  range  of
punishment.28
          Guided  by the principle announced in Donlun,
this Court reached a similar decision in Post v. State,
635  P.2d  1194 (Alaska App. 1981).  The  defendant  in
Post was indicted under the pre-1980 criminal code  for
receiving     or    concealing    stolen    property.29
    The   statute   at  issue,  former  AS   11.20.350,
declared  that this offense was a felony punishable  by
imprisonment for not less than one year nor  more  than
three  years  if the stolen property exceeded  $250  in
value,  but the maximum punishment was only  one  years
imprisonment if the stolen property was worth  $250  or
less.   In  other  words,  the lesser  degree  of  this
offense was a misdemeanor.
          Even though Posts indictment declared that he
was charged with the felony version of the offense, the
indictment  did  not specify that the  stolen  property
exceeded  $250 in value.  We concluded that Posts  case
was  governed by the supreme courts decision in Donlun,
and  that Posts indictment was therefore not sufficient
to subject him to the felony penalty.30
          But  despite  the supreme courts decision  in
Donlun  and  this  Courts  own  decision  in  Post,  we
rejected Hartleys argument that the aggravating factors
          listed in AS 12.55.155(c) should be treated as elements
of  the  offense.   Instead, we  concluded  that  these
statutory  aggravating  factors differed  fundamentally
from  the elements that might define greater and lesser
degrees of a particular offense:
     
          The  state has [the] discretion  whether
     or  not  to institute a prosecution[, and  to
     decide what degree of the offense to charge].
     Once  [the  state] has obtained a conviction,
     however,   the  legislature  has  established
     specific    guidelines   governing   [felony]
     sentencing.  ...  The [legislatures] decision
     to   circumscribe   [a   courts]   sentencing
     discretion  was in large part  based  upon  a
     legislative belief that greater uniformity in
     sentencing  should be sought and  unjustified
     disparity eliminated.
     
     To   allow  the  parties  to  ignore  [a
defendants]  past convictions or [to  ignore]
aggravating and mitigating factors  suggested
by  the evidence at trial or disclosed  in  a
presentence  report prepared by  a  probation
officer  would  be  to encourage  unjustified
disparity  in sentencing.  We therefore  hold
that  the state has no discretion to suppress
evidence  of  past convictions or aggravating
or mitigating factors.

Hartley, 653 P.2d at 1056.
          Under  Hartley, when  a  sentencing
judge    perceives   that   aggravating    or
mitigating  factors apply  in  a  presumptive
sentencing  case,  the  judge  must  consider
these  factors even if the parties  have  not
recognized  their  applicability  or   argued
their  importance.  Hartley holds that  these
aggravating  and mitigating factors  are  not
elements  that the State, in the exercise  of
its  prosecutorial discretion, can choose  to
pursue  or  ignore.  Rather, to  advance  the
goal  of  eliminating unjustified disparities
in   sentencing,  the  legislature   requires
sentencing    courts   to   consider    these
aggravating  and mitigating factors  whenever
they are established by the record.
          We  addressed this issue again  the
following  year in Kelly v. State,  663  P.2d
967   (Alaska  App.  1983).   In  Kelly,   we
declared:

The    legislature   did   not   intend   the
presumptive  sentencing  provisions  of   the
revised   criminal   code   to   be   applied
optionally, at the discretion of the court or
the  prosecution.  The presumptive sentencing
structure  is  mandatory,  and  it  must   be
followed when it applies.

Kelly, 663 P.2d at 974.  And we last revisited this issue in
State  v.  District  Court, 53 P.3d  629  (Alaska  App.
2002),  where we reiterated that in cases  governed  by
presumptive sentencing, neither the prosecutor nor  the
sentencing  judge has the power to ignore a  defendants
undisputed prior felony convictions or the existence of
plainly applicable aggravating or mitigating factors.31
          To   summarize  this  discussion:   Our  decisions   in
Hartley,  Kelly,  and  State  v. District  Court  hold  that  the
aggravating  and  mitigating factors listed in AS 12.55.155(c)(d)
are  not  elements  of  the defendants offense  for  purposes  of
pleading.   The  State has no discretion to  ignore  or  withhold
aggravating  factors.   Moreover,  a  sentencing  judge  has   an
independent duty to take account of aggravating factors  even  if
the  State has not raised them, and the judge must likewise  take
account  of  mitigating  factors even if the  defendant  has  not
raised them.
          Admittedly, Hartley, Kelly, and State v. District Court
were all decided before Blakely.  But unless Blakely now requires
a  different rule, our decisions in Hartley, Kelly, and State  v.
District  Court  remain binding law on the issue of  whether  the
aggravating factors listed in AS 12.55.155(c) constitute elements
of  a  defendants  underlying  felony  offense  for  purposes  of
pleading.   In other words, unless Blakely requires  a  different
rule, the law in Alaska is that these aggravating factors are not
elements  of  a  felony  offense which  must  be  pleaded  in  an
indictment.

     The United States Supreme Courts decisions in Apprendi,
     Blakely,   and  Booker   the  Courts  adoption   of   a
     functional test for assessing when the Sixth  Amendment
     guarantees  defendants the right to a jury trial  on  a
     particular issue of fact
     
               In  Apprendi  v.  New  Jersey,32  the  United
     States  Supreme  Court  held  that,  under  the   Sixth
     Amendment to the United States Constitution, a criminal
     defendant has the right to a jury trial, and  to  proof
     beyond  a reasonable doubt, on any issue of fact which,
     if  proved,  will  subject the defendant  to  a  higher
     maximum penalty.
               Apprendi was a significant expansion of Sixth
     Amendment rights.  However, it was not a bolt from  the
     blue.
          For  decades,  state  legislatures  had  been
enacting  statutes that either established a  mandatory
minimum  sentence  or,  alternatively,  established   a
higher   maximum   sentence  based  on   a   particular
aggravating   circumstance   usually,  the   defendants
possession  or  use  of a firearm  or  other  dangerous
          weapon.33
          Because  of  these sentencing statutes,  many
state  courts  were asked to decide whether  defendants
had  a  right  to  trial  by jury  on  the  aggravating
circumstance  that  triggered  the  mandatory   minimum
sentence  or  that  triggered the  additional  term  of
imprisonment.  We addressed this body of  case  law  in
Huf v. State, 675 P.2d 268 (Alaska App. 1984).
          In Huf, we cited the Kansas Court of Appealss
decision  in State v. Kleber, 575 P.2d 900  (Kan.  App.
1978), as an accurate summary of the decisions in  this
area.34   The  defendant in Kleber  was  subject  to  a
mandatory minimum term of imprisonment because he  used
a  firearm  during  the commission  of  his  offense.35
Under  Kansas  law,  the sentencing judge  decided  the
question  of  whether  the defendant  used  a  firearm.
Kleber argued that this law was unconstitutional  that,
as  a  matter of due process, he was entitled to a jury
trial on this issue.36
          In  rejecting  Klebers argument,  the  Kansas
court distinguished between (1) statutes that imposed a
mandatory   minimum  sentence,  within  the   otherwise
applicable  range of sentences, based on the defendants
possession  or use of a firearm, and (2) statutes  that
imposed  an additional term of imprisonment,  over  and
above  the  otherwise  applicable range  of  sentences,
based on the defendants possession or use of a firearm:
     
          The  cases  [which hold that a defendant
     is entitled to have a jury decide whether the
     government   has   proved   the   aggravating
     circumstance] concern statutes ... wherein an
     additional  and  enhanced  sentence  may   be
     imposed upon a defendant who commits a  crime
     with  a  firearm.   Such statutes  frequently
     provide that one who commits a felony with  a
     firearm  may receive a separate sentence  for
     the  use  of  the  firearm  in  addition   to
     whatever  sentence  may be  imposed  for  the
     felony.  In construing such statutes, [courts
     hold]  that  the  question as  to  whether  a
     firearm  was used must be determined  by  the
     trier  of fact before the additional sentence
     may   be  imposed  [because  these]  statutes
     define a new class of crimes by adding a  new
     element,  use of a firearm, and the existence
     of  the  new  element requires an  additional
     finding of fact.
     
     We  believe [that the statute  at  issue
here]  is distinguishable from those statutes
of  other  jurisdictions ... .   [The  Kansas
sentencing   statute]  has  the   effect   of
imposing a mandatory minimum sentence for all
Article 34 crimes in which the defendant used
     a firearm in the commission of the crime.
...  While [our statute] limits the range  of
authorized  dispositions  available  to   the
trial  court in some instances, it  does  not
create  a  new  class of crimes,  add  a  new
element   to  the  statutory  definition   of
already  existing crimes, or provide  for  an
additional sentence.  Use of a firearm  under
the  statute  is not made an element  of  the
offense charged, and is only pertinent to the
authorized disposition the court may consider
in the event of a conviction.

Kleber, 575 P.2d at 904 (emphasis added).37
          Compare  the Oregon Supreme  Courts
contemporaneous decision in State  v.  Wedge,
652 P.2d 773 (Or. 1982), construing a statute
that imposed a mandatory minimum sentence  of
either   5,  10,  or  30  years  imprisonment
(depending on the defendants prior record) if
the  defendant used or threatened  to  use  a
firearm  during the commission of a felony.38
This  prescribed minimum term of imprisonment
applied even if the maximum sentence for  the
underlying   offense  was   less   than   the
specified  minimum.   In  other  words,  this
sentencing  statute increased the  defendants
maximum penalty in many instances.39
          The  Oregon court held that,  under
this statute, the defendants use of a firearm
constituted  an element of the offense   and,
thus,  the defendant was entitled to  a  jury
trial on this issue:

     Although   the  challenged  statute   is
denominated  an enhanced penalty statute,  in
effect   it   creates  a  new   crime.    The
[defendants]  jury  only considered  ...  the
question of first degree robbery, and  [they]
convicted  him  of  that  offense,  but   the
defendant  was [effectively] sentenced  [for]
first degree robbery using a firearm.  If the
legislature had actually described the  crime
as  first  degree robbery using a  firearm[,]
the  use of a firearm would certainly  be  an
element  and  there would be no  doubt  [that
the]  defendant would have a right to a  jury
determination    of   [his]    guilt.     The
legislature  cannot eliminate  constitutional
protections by separating and relabeling [one
or more] elements of a crime.

Wedge, 652 P.2d at 778.
          From  our  decision  in  Huf,   the
Kansas  decision in Kleber,  and  the  Oregon
          decision in Wedge, it is clear that, well
before the United States Supreme Court issued
its  decision in Apprendi, state courts  were
dealing  with  the  question  of  whether   a
criminal  defendant had a right to  trial  by
jury  on  issues  of fact  that  altered  the
sentencing range to the defendants detriment.
Nevertheless, even though the issue presented
in  Apprendi was not new, the Supreme  Courts
analysis of this issue in Apprendi represents
a new direction in jury trial jurisprudence.
          As  can  be seen from the decisions
in   Huf,  Kleber,  and  Wedge,  state  court
decisions before Apprendi analyzed this issue
by   asking  whether  the  sentence-enhancing
issue  of fact was truly a sentencing  factor
or  whether, instead, it should be deemed  an
element  of  what  was, in effect,  a  higher
degree  of  the charged crime.  In  Apprendi,
the Supreme Court changed the legal landscape
by  declaring that, for purposes of the Sixth
Amendment   right   to   jury   trial,   this
distinction  between  sentencing  factor  and
element is irrelevant.
          The   defendant  in  Apprendi   was
convicted  under New Jersey law of possession
of a firearm for an unlawful purpose after he
fired  several  shots into  the  home  of  an
African-American  family  who  had   recently
moved      into      his      neighborhood.40
The  normal  range  of  punishment  for  this
offense  was  imprisonment for  between  five
years  and  10 years.41  However,  under  New
Jerseys  hate  crime  law,  Apprendi   became
subject to an enhanced sentencing range of 10
to 20 years imprisonment after the sentencing
judge  found  that  Apprendi  acted  for  the
purpose  of intimidating his victims  because
of    their    race.42    Using   this    10-
20 year sentencing range, the judge sentenced
Apprendi to 12 years imprisonment.43
          Apprendi   appealed  his  sentence,
arguing that he was entitled to have  a  jury
decide  whether he had acted with the  intent
to intimidate his victims on account of their
race.  As we just explained in our discussion
of  Huf, Kleber, and Wedge, most state courts
followed the rule of construction that issues
of   fact   which  increased  the  defendants
maximum sentence should be deemed elements of
a  higher  degree  of offense   meaning  that
defendants were entitled to a jury  trial  on
these  issues.  But when Apprendis case  came
before the New Jersey Supreme Court, the  New
Jersey  court  reached the  opposite  result:
          they held that the hate crime law was merely
a  sentence enhancement provision,  and  that
Apprendi  therefore had no right  to  a  jury
trial  on the question of his motive for  the
shooting.44
          The  United  States  Supreme  Court
reversed the New Jersey decision because  the
Supreme  Court  held that,  under  the  Sixth
Amendment, defendants are entitled to a  jury
trial,  and  to  proof  beyond  a  reasonable
doubt,  on  any  fact  (other  than  a  prior
conviction)   that  increases   the   maximum
penalty for a crime.45
          For   present  purposes,  the  most
important  aspect  of Apprendi  is  that  the
Supreme Court refused to base its decision on
a sentencing factor / element dichotomy.
          Writing  for the majority,  Justice
Stevens   declared  that  using   the   label
sentence enhancement to describe [the  effect
of  the  New Jersey hate crime law] does  not
provide   a  principled  basis  for  deciding
whether  defendants are entitled  to  a  jury
trial  on the issues of fact raised  by  that
hate crime law.46
          Justice  Stevens noted  that  [a]ny
possible distinction between an element of  a
felony  offense and a sentencing  factor  was
unknown   to   the   practice   of   criminal
indictment,  trial by jury, and  judgment  by
court as it existed [when the Sixth Amendment
was  enacted].47   However,  Justice  Stevens
acknowledged  that [these] practices  [might]
change   and   still  remain  true   to   the
principles of [the Constitution].48
          Justice       Stevens       further
acknowledged    that,    in    McMillan    v.
Pennsylvania49 (a case in which  the  Supreme
Court upheld a statute that imposed a minimum
term of imprisonment based on facts found  by
the  sentencing  judge),  the  Supreme  Court
itself  used  the term sentencing  factor  to
refer to a fact that was not found by a  jury
but that could affect the sentence imposed by
the   judge.50    However,  Justice   Stevens
declared that the McMillan decision  did  not
budge   from   the  position   that   serious
constitutional concern[s] are raised whenever
a  state scheme ... keeps from the jury facts
that   expose   defendants  to   greater   or
additional punishment.51
          Responding  to  the  State  of  New
Jerseys argument that the contested issue  in
Apprendis case was a sentencing factor rather
than  an  element because this issue of  fact
          merely concerned Apprendis motive for
committing the crime (his alleged  intent  to
intimidate  his victims on account  of  their
race),52   Justice Stevens declared  that  it
does  not matter whether the required finding
[of  fact] is characterized as one of  intent
[i.e.,  culpable mental state] or of  motive,
because  labels do not afford  an  acceptable
answer to the question of a defendants  right
to    jury    trial.53    It   is    likewise
unacceptable, Justice Stevens stated, to have
a defendants right to jury trial hinge on the
constitutionally    novel     and     elusive
distinction  between elements and  sentencing
factors.54
          Justice Stevens stated that, to him
and   the   other  members  of  the  Apprendi
majority,  it  was clear that  the  contested
issue of fact in Apprendis case was indeed an
element.55    Nevertheless,  in   that   same
sentence, Justice Stevens declared  that  the
distinction  between  sentencing  factor  and
element   was   not  the  relevant   inquiry.
Rather, the relevant inquiry is [whether] the
required finding expose[s] the defendant to a
greater  punishment than that  authorized  by
the jurys guilty verdict.56
          In  other words, regardless of  how
one might characterize a particular issue  of
fact   within  the  dichotomy  of  sentencing
factor  and  element,  the  test  for   Sixth
Amendment  purposes is a  different  one.   A
defendants  right  to jury  trial  under  the
Sixth  Amendment does not hinge on how  state
law  categorizes a particular issue of  fact;
rather,  the defendants right to  jury  trial
hinges   on   whether  a   finding   in   the
governments    favor   will   increase    the
defendants maximum sentence:  Other than  the
fact  of  a  prior conviction, any fact  that
increases the penalty for a crime beyond  the
[otherwise] prescribed statutory maximum must
be  submitted to a jury, and proved beyond  a
reasonable  doubt.57  Or, as  Justice  Scalia
put  it in Blakely v. Washington,58 the  test
is   whether  the  defendants  sentence   was
authorized  by  the jurys verdict  alone  or,
instead,   the  sentencing  court  acquire[d]
[its]   authority  only  upon  finding   some
additional  fact beyond those  found  by  the
jury.59
          Justice  Stevens returned  to  this
theme  that the labels sentencing factor  and
element  are  irrelevant for Sixth  Amendment
purposes    in  United  States  v.  Booker.60
          Writing for the Court, Justice Stevens
declared  that the decision in  Apprendi  was
based on the need to give renewed meaning  to
two  basic  constitutional  protections:    a
defendants  right to demand  proof  beyond  a
reasonable  doubt of every fact necessary  to
constitute  the crime ... charged,61   and  a
defendants  right  to  demand  that  a   jury
[decide  whether the defendant is] guilty  of
all the elements of the crime ... charged.62
          The  key  problem, Justice  Stevens
said,   was   the  erosion   of   the   jurys
traditional  role in determining  a  criminal
defendants level of guilt, as more  and  more
states  (and the federal government)  adopted
determinate  sentencing  schemes   sentencing
schemes that gave judges the power to resolve
the factual disputes that would determine the
upper limit of the defendants punishment:

     It    is   quite   true   that[,   under
indeterminate  sentencing  schemes,]   judges
commonly determined facts justifying  [their]
choice of a heavier sentence ... .  [But  in]
1986,  [we] first recognized a new  trend  in
the  legislative  regulation of  sentencing[:
sentencing  laws under which] facts  selected
by  legislatures ... not only authorized,  or
even  mandated, heavier sentences than  would
otherwise  have been imposed,  but  increased
the  range  of  sentences  possible  for  the
underlying crime.  ...

     The effect of the increasing emphasis on
facts    that    enhanced   [the   permitted]
sentencing  ranges ... was  to  increase  the
judges  power and diminish that of the  jury.
It  became  the  judge,  not  the  jury,  who
determined  the  upper limits of  sentencing,
and   the   facts   [that]  determined   [the
sentencing  range] were not  required  to  be
raised before trial or proved by more than  a
preponderance [of the evidence].

Booker,  543  U.S. at 236, 125 S.Ct.  at  751
(citations omitted).
          Justice  Stevens  explained   that,
given this development in sentencing law, the
Court  was faced with the issue of preserving
[the] ancient guarantee [of jury trial] under
a new set of circumstances:

The  new sentencing practice forced the Court
to address the question [of] how the right of
jury  trial  could be preserved [so  that  it
would continue to guarantee], in a meaningful
way[,]  ...  that the jury would still  stand
between the individual and the power  of  the
government  under the new sentencing  regime.
[I]t  is the new circumstances ... that  have
led  us  to  the  answer  ...  developed   in
Apprendi  and subsequent cases[,] culminating
with this one.  It is an answer not motivated
by Sixth Amendment formalism, but by the need
to preserve Sixth Amendment substance.

Booker, 543 U.S. at 237, 125 S.Ct. at 752.
          The   answer,   as   explained   in
Apprendi  and  Blakely, was to interpret  the
Sixth Amendment so as to guarantee a right of
jury  trial,  and  a right  to  demand  proof
beyond  a  reasonable doubt, on any issue  of
fact  which, if proved, increases the penalty
for   the   [defendants]  crime  beyond   the
[otherwise] prescribed statutory maximum.63
          Justice   Stevens  then  reiterated
what  he  said in Apprendi:  for purposes  of
this Sixth Amendment rule, the labels element
and  sentencing factor are irrelevant.  These
labels do not provide a principled basis  for
resolving  the question of whether the  Sixth
Amendment guarantees a right to jury trial on
a particular issue of fact:

     The fact that[, in Apprendi,] New Jersey
labeled   [its]   hate   crime   a   sentence
enhancement  rather than a separate  criminal
act   was   irrelevant   for   constitutional
purposes.  As a matter of simple justice,  it
seemed obvious that the procedural safeguards
[of  jury trial and proof beyond a reasonable
doubt]  designed  to  protect  Apprendi  from
punishment  for  [the  underlying  crime  of]
possession of a firearm should apply  equally
to  his  violation of the hate crime statute.
Merely  using the label sentence  enhancement
to  describe [the hate crime statute] did not
provide  a principled basis for treating  the
two crimes differently.

     In  Ring  v. Arizona, 536 U.S. 584,  122
S.Ct.  2428,  153  L.Ed.2d  556  (2002),   we
reaffirmed      our      conclusion      that
[a legislatures] characterization of critical
facts is constitutionally irrelevant.  There,
we  held  that it was impermissible  for  the
trial  judge,  sitting alone[,] to  determine
the  presence  or absence of the  aggravating
factors   required   by   Arizona   law   for
imposition of the death penalty.    ...   Our
     opinion  [in Ring] made it clear that[,]
ultimately,  ...  the characterization  of  a
fact  or  circumstance as  an  element  or  a
sentencing factor is not determinative of the
question  [of  whether  a]  judge   or   jury
[decides that issue of fact].

Booker, 543 U.S. at 231, 125 S.Ct. at  748-49
(internal quotations and citations omitted).
          In  sum:   Even though pre-Apprendi
decisions like Huf, Kleber, and Wedge  relied
on   the  distinction  between  elements  and
sentencing factors to resolve the scope of  a
defendants right to jury trial, the  Apprendi
decision  adopted  a  new  approach  to  this
question.    Instead  of  asking  whether   a
particular  issue  of  fact  represented   an
element  or a sentencing factor, the Apprendi
Court  asked  a different question:   whether
resolution of this issue of fact in favor  of
the  government would increase the defendants
maximum  sentence.   If so,  then  the  Sixth
Amendment guarantees the defendant a right to
jury  trial on that issue, no matter how  the
issue might be classified.

Although   the  Supreme  Court  declared  in  Apprendi,
Blakely,  and  Booker  that  the  distinction   between
elements  and  sentencing factors  is  irrelevant  when
assessing  a defendants right to jury trial  under  the
Sixth  Amendment, the states can continue  to  rely  on
this  distinction in matters of pleading and proof  not
governed by the Sixth Amendment right to jury trial

          The  issue  presented to this  Court  in  the
present  case  is whether a defendant has  a  right  to
grand  jury indictment on any aggravating factor listed
in AS 12.55.155(c) which, in the event the defendant is
convicted,  will later be litigated at  the  defendants
sentencing.  The Supreme Courts decisions in  Apprendi,
Blakely, and Booker do not answer this question.
          In Apprendi, Blakely, and Booker, the Supreme
Court  did  not say that the states are forbidden  from
drawing any distinction between elements and sentencing
factors.  Rather, as explained in the preceding section
of  this  opinion, the Supreme Court declared that  any
such  distinction  under state law is  irrelevant  when
assessing   whether  the  Sixth  Amendment   guarantees
defendants a right to jury trial on a particular  issue
of fact.
          The  Supreme  Court  further  clarified  this
point  in  Schriro v. Summerlin, 542 U.S. 348,  354-55;
124  S.Ct.  2519,  2524; 159 L.Ed.2d  442  (2004).   In
Summerlin, the Supreme Court explained that it did  not
view  Apprendi and Blakely as requiring a  redefinition
of   state   criminal  offenses,  or  as  requiring   a
modification of the elements of those offenses.
          The  Summerlin  case arose from  the  Supreme
Courts  earlier decision in Ring v. Arizona,  536  U.S.
584,  122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).  In Ring,
the  Court  held that, under Apprendi, a defendant  was
entitled  to  a  jury trial on the aggravating  factors
that authorized imposition of the death penalty.64  The
question presented in Summerlin was whether the federal
courts  should  apply  Ring  retroactively   that   is,
whether  the federal courts should grant habeas  corpus
relief to state prisoners whose convictions were  final
before  Ring  was decided.65  This question,  in  turn,
hinged in part on whether the Ring decision announced a
substantive  rule  or  merely  a  procedural  rule  for
purposes of the retroactivity test announced in  Teague
v. Lane.66
          In Summerlin, the Supreme Court declared that
Ring  had not worked any substantive change in  Arizona
law, but had merely announced a rule of procedure:
     
          A decision that modifies the elements of
     an  offense  is  normally substantive  rather
     than  procedural.   New  elements  alter  the
     range   of   conduct  the  statute  punishes,
     rendering  some  formerly  unlawful   conduct
     lawful  or  vice  versa.  [Citation  omitted]
     But  that is not what Ring did; the range  of
     conduct punished by death in Arizona was  the
     same  before Ring as after.  Ring held  that,
     because    Arizonas   statutory   aggravators
     restricted  (as  a matter of state  law)  the
     class  of  death-eligible  defendants,  those
     aggravators  effectively  were  elements  for
     federal constitutional purposes, and so  were
     subject  to  the procedural requirements  the
     Constitution  attaches to trial of  elements.
     536 U.S. [at] 609, 122 S.Ct. [at 2443].
     
       Summerlin,  536 U.S. at 354, 124  S.Ct.  at
     2524 (emphasis in the original).
          In  other words, even though, under
Apprendi  and  Blakely, a  defendant  may  be
entitled  to  a  jury trial on  a  particular
issue  of fact, this does not mean that  this
issue  of fact must be treated as an  element
for all purposes.  Because Dagues case raises
a  question involving the right to grand jury
indictment,  rather than the  right  to  jury
trial,  Apprendi and Blakely do  not  provide
the answer to Dagues case.
          It is true that Apprendi contains a
lengthy  discussion of a defendants right  at
common  law to grand jury indictment  on  any
issue   of  fact  that  would  increase   the
          defendants potential punishment.  See
Apprendi, 530 U.S. at 477-481, 120  S.Ct.  at
2356-58.   But  this  discussion  is   simply
background  part of the Courts explanation of
why  the  Court chose to adopt  an  analogous
interpretation  of the Sixth Amendment  right
to jury trial.
          It  is  also true that the Apprendi
opinion refers to a defendants right to grand
jury indictment under the Fifth Amendment:

     Our answer to [the] question [of whether
Apprendi  was entitled to a jury  trial]  was
foreshadowed  by  our  opinion  in  Jones  v.
United States, 526 U.S. 227, 119 S.Ct.  1215,
143  L.Ed.2d 311 (1999), construing a federal
statute.  We there noted that under  the  Due
Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth
Amendment,  any  fact (other than  [a]  prior
conviction)   that  increases   the   maximum
penalty  for  a crime must be charged  in  an
indictment, submitted to a jury,  and  proven
beyond  a reasonable doubt.  Id., at 243,  n.
6,  119 S.Ct. 1215.  The Fourteenth Amendment
commands   the  same  answer  in  this   case
involving a state statute.

Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355.
          But  the  final  sentence  of  this
quoted  excerpt is not an accurate  statement
of  the  law.   Although the Fifth  Amendment
guarantees  a right of grand jury  indictment
in   federal   prosecutions,  the  Fourteenth
Amendment does not command the same answer in
state  prosecutions.  Over one hundred  years
ago,  in Hurtado v. California, 110 U.S. 516,
4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme
Court held that the due process clause of the
Fourteenth  Amendment does  not  include  the
right to grand jury indictment.
          Because  the Sixth Amendment  right
to  jury  trial is incorporated  in  the  due
process clause of the Fourteenth Amendment,67
the  Fourteenth Amendment does indeed command
the  same  answer in both federal  and  state
prosecutions   when   the   question   is   a
defendants right to jury trial.  But  persons
prosecuted for crimes in state court have  no
federal right to grand jury indictment.68
          In  fact,  later on in the Apprendi
opinion,  the Court clarified this matter  by
explicitly stating that it did not intend  to
address  the issue of a defendants  potential
right to grand jury indictment:

     Apprendi   has  not  here   asserted   a
constitutional claim based on the omission of
any  reference  to  sentence  enhancement  or
racial  bias  in the indictment.   He  relies
entirely on the fact that the due process  of
law  that  the Fourteenth Amendment  requires
the  States to provide to persons accused  of
crime  encompasses the right to  a  trial  by
jury,  Duncan v. Louisiana, 391 U.S. 145,  88
S.Ct.  1444, 20 L.Ed.2d 491 (1968),  and  the
right  to  have every element of the  offense
proved  beyond  a  reasonable  doubt,  In  re
Winship,  397  U.S. 358, 90  S.Ct.  1068,  25
L.Ed.2d 368 (1970).  That Amendment has  not,
however, been construed to include the  Fifth
Amendment  right to presentment or indictment
of a Grand Jury ... .  We thus do not address
the indictment question ... today.

Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct.  at
2356 n. 3.
          We  do  not  mean to say  that  the
decisions  in  Apprendi and Blakely  have  no
bearing  on a defendants right to notice  and
an  opportunity  to prepare  for  litigation.
If, under the Sixth Amendment, a defendant is
entitled  to  a  jury trial on  a  particular
issue of fact, it would stand to reason  that
the defendant is likewise entitled to advance
notice that this fact will be litigated,  and
to  a  sufficient opportunity to prepare  for
that  litigation.   But  the  Supreme  Courts
decision   in   Hurtado   stands   for    the
proposition   that,  for  purposes   of   the
Fourteenth   Amendment,  these  due   process
concerns  can be satisfactorily addressed  by
procedures short of grand jury indictment.
          We  also acknowledge that, in  many
of our prior decisions, we have characterized
Apprendi, Blakely, and Booker as standing for
the  proposition  that  a  sentencing  factor
which   increases  the  defendants  potential
maximum  sentence must be  viewed  as  if  it
constituted  an  element  of  the  offense.69
    Indeed,   the   United   States   Supreme
Court  used  the phrase functional equivalent
of an element in Apprendi, 530 U.S. at 494 n.
19,  120  S.Ct. at 2365 n. 19, and  again  in
Ring  v. Arizona, 536 U.S. at 609, 122  S.Ct.
at  2443,  when  the Court  referred  to  the
aggravating factors that, under Arizona  law,
made  a  defendant eligible  to  receive  the
death penalty.
          But while this characterization may
          be accurate enough for purposes of Sixth
Amendment   analysis,   it   is   potentially
misleading  when  applied in other  contexts.
As  we have explained here, the decisions  in
Apprendi, Blakely, and Booker do not rest  on
the  notion that some sentencing factors  are
really  elements.   Rather  than  trying   to
answer   the   question   of   whether   some
sentencing  factors must be deemed  elements,
the  Supreme  Court cut the Gordian  knot  by
declaring   that   the  distinction   between
elements    and   sentencing   factors    was
irrelevant for Sixth Amendment purposes.
          Under   the  functional   test   of
Apprendi,  Blakely,  and  Booker,  defendants
have  a  right to jury trial on any issue  of
fact,  regardless of whether it is designated
as  an  element  or a sentencing  factor,  if
proof   of   that  fact  will  increase   the
defendants maximum sentence.  But the Supreme
Court  did  not say that the Sixth  Amendment
forbids   the   states  from  employing   the
distinction  between elements and  sentencing
factors for other purposes.
          As  we have already explained, this
Court  has  repeatedly ruled  in Hartley,  in
Kelly, and in State v. District Court   that,
as  a  matter  of state law, the  aggravating
factors  listed  in AS 12.55.155(c)  are  not
elements of a felony offense, but rather  are
sentencing factors that a judge must consider
whenever  they are applicable,  even  if  the
State  has  failed to raise  them.   Although
Apprendi  and Blakely guarantee defendants  a
right to jury trial on aggravating factors in
some  instances, Apprendi and Blakely do  not
abrogate  the  underlying  classification  of
aggravators and mitigators under AS 12.55.155
as  sentencing  factors rather than  elements
under Alaska law.

Even when, under Apprendi and Blakely, a defendant has
a  right  to  jury trial on an aggravating  factor
and,  thus,  a  right  to advance  notice  of  the
aggravating  factor  and  a  fair  opportunity  to
prepare  to  litigate it  the federal Constitution
does not require the states to provide this notice
at the grand jury stage of the proceedings

     Apprendi,   Blakely,  and  Booker  implicitly
require  the  states  to provide  defendants  with
advance  notice of any factor (regardless  of  how
this  factor  is designated) that will potentially
increase  the  defendants maximum  sentence.   The
question   is  whether  the  federal  Constitution
requires the states to give this advance notice at
the grand jury stage of the proceedings.
          Apprendi, Blakely, and Booker do not  provide
an answer to this question.  But other decisions of the
United  States  Supreme Court suggest  that  even  when
aggravating  factors  must be proved  to  a  jury,  the
states  are free, at least in many instances, to  craft
procedures that allow post-trial notification of  these
aggravating factors and a separate, second  jury  trial
to decide these factors if they are contested.
          In  Graham v. West Virginia, 224 U.S. 616, 32
S.Ct.  583, 56 L.Ed. 917 (1912), and again in Oyler  v.
Boles,  368  U.S.  448, 82 S.Ct.  501,  7  L.Ed.2d  446
(1962),  the  Supreme  Court was asked  to  assess  the
constitutionality  of West Virginias habitual  criminal
law    a  law  that  provided  substantially  increased
penalties for a felony offense if the defendant  had  a
particular number of prior felony convictions.
          The   West   Virginia  statute  specified   a
mandatory  life  sentence upon a persons  third  felony
conviction.70  Under West Virginia law, the  charge  of
habitual  criminal was not a separate offense;  rather,
the  fact  that  a  defendant was a  habitual  criminal
increased  the  sentence that the defendant  faced  for
their  current  felony.   Moreover,  a  defendant   was
entitled to a jury trial if they disputed the  fact  of
their  prior  felony  convictions.71   But  state   law
nevertheless allowed the prosecutor to raise the  issue
of  the  defendants prior felony convictions after  the
defendant  was  convicted of the  current  offense,  in
preparation   for   the  defendants   sentencing.    As
described  by  the  Supreme Court,  West  Virginia  law
provided that the [habitual criminal] statute should be
invoked  by  information filed after  [the  defendants]
conviction  rather than by allegation in the indictment
upon  which the [defendant] was being prosecuted for  a
substantive offense.72
          In  both Graham and Oyler, the Supreme  Court
declared that this procedure did not violate either the
due process clause or the double jeopardy clause.
          The  Supreme  Courts decision  in  Graham  is
particularly  important on the  issue  of  whether  the
federal  due  process clause demands  that  aggravating
factors be alleged in the indictment. The defendant  in
Graham  contended  that, because the existence  of  the
prior   convictions  would  make  such  a   significant
difference  to the defendants sentence, the  government
should be required to declare in the indictment whether
it  intended to ask the court to sentence the defendant
          as a habitual criminal if the defendant was convicted.
The  Supreme Court acknowledged that it might  be  more
convenient  to  have  the State allege  the  defendants
prior  convictions in the original indictment, so  that
the  same  jury  could decide all issues  in  a  single
trial.  But the Court declared that such a practice  is
not obligatory:
     
          It  cannot be said that the prisoner was
     deprived  of  due process of law because  the
     question  [of  his]  former  conviction   was
     passed  upon  separately.  While  it  is  [a]
     familiar  practice  to  set  forth   in   the
     indictment  the fact of [a] prior  conviction
     of another offense, and to submit to the jury
     the  evidence upon that issue, together  with
     that  relating to the commission of the crime
     which  the indictment charges, still  in  its
     nature  it  is a distinct issue, and  it  may
     appropriately  be  the  subject  of  separate
     determination.  Provision for a separate  and
     subsequent determination of [this issue]  has
     not  been  regarded as a deprivation  of  any
     fundamental right.
          .  .  .
     
          This conclusion necessarily follows from
     the  distinct nature of the issue [i.e.,  the
     existence    of    the    defendants    prior
     convictions] and from the fact  ...  that  it
     does  not  relate  to the commission  of  the
     offense, but goes to the punishment only, and
     therefore it may be subsequently decided.
     
     Graham,  224  U.S. at 625, 629; 32  S.Ct.  at
     586, 588.
          Fifty   years  later,  the  Supreme
Court  reiterated this theme in  Oyler.   The
defendants  in  Oyler again argued  that  the
West  Virginia procedure violated their right
to   procedural   due   process   under   the
Fourteenth Amendment  that they were constitu
tionally  entitled to notice of the  habitual
criminal accusation before their trial on the
third felony offense.73
          The Supreme Court disagreed:

     Even  though an habitual criminal charge
does  not  state  a  separate  offense,   the
determination of whether one is  an  habitual
criminal  is essentially independent  of  the
determination  of  guilt  on  the  underlying
substantive offense.  [Citation and  internal
quotation marks omitted]  Thus, although  the
habitual criminal issue may be combined  with
     the trial of the felony charge, it is  a
distinct  issue, and it may appropriately  be
the subject of separate determination. Graham
v. West Virginia, 224 U.S. 616, 625, 32 S.Ct.
583,  586,  56  L.Ed. 917  (1912).   If  West
Virginia chooses to handle the matter as  two
separate  proceedings, due process  does  not
require advance notice that the trial on  the
substantive  offense will be followed  by  an
habitual criminal proceeding.

Oyler, 368 U.S. at 452, 82 S.Ct. at 503-04 (internal quotations
and citations omitted).
The  Supreme  Court noted that [a]ny other  rule  would
place a difficult burden on the [states] imposition  of
a recidivist penalty:

Although  the  fact  of prior  conviction  is
within the knowledge of the defendant,  often
this  knowledge  does not come  home  to  the
prosecutor until after the trial, and in many
cases   the   prior   convictions   are   not
discovered  until the defendant  reaches  the
penitentiary.

Oyler, 368 U.S. at 452 n. 6, 82 S.Ct. at 504 n. 6.
          The   Supreme   Court  acknowledged   that   defendants
prosecuted  under  the  habitual criminal law  were  entitled  to
reasonable notice and an opportunity to be heard relative to  the
recidivist  charge.   But the Court held  that  the  due  process
clause  of  the Fourteenth Amendment did not require that  [this]
notice   be  given  prior  to  the  [defendants]  trial  on   the
substantive offense.74
          Oyler   is   not   a   relic  of   Nineteenth   Century
jurisprudence.  Rather, Oyler was decided in 1962  during a  time
when  the Supreme Court was aggressively expanding the rights  of
criminal   defendants  under  the  federal  constitution.75    It
presumably continues to be good law.
          Two   particular  aspects  of  the  Graham  and   Oyler
decisions need to be emphasized.
          First,  although  West Virginia law  imposed  increased
penalties  on defendants based on their prior felony convictions,
the  Supreme Court did not uphold the West Virginia law  under  a
theory  analogous  to  the Apprendi-Blakely exemption  for  prior
convictions.   West Virginia law expressly provided  that,  if  a
defendant  contested the existence of the predicate prior  felony
convictions, the defendant was entitled to a jury trial  on  that
issue.  Thus, there was no dispute in Graham and Oyler concerning
the  defendants right to jury trial.  The issue was  whether,  in
light of that right to jury trial, the defendant was entitled  to
pre-conviction  notice  that  the  State  would   seek   enhanced
punishment  under the habitual criminal statute if the  defendant
was convicted.
          Second,  although the West Virginia  law  at  issue  in
Graham  and  Oyler  called for increased  penalties  based  on  a
          defendants prior felony convictions, the Supreme Courts stated
rationale  for  upholding  West Virginias  procedure  (i.e.,  the
procedure of having a separate, post-conviction jury trial if the
defendant  disputed those prior convictions) actually suggests  a
rule  that  is  not confined to prior convictions.   The  Supreme
Court  noted that the determination of whether one is an habitual
criminal is essentially independent of the determination of  [the
defendants]  guilt  on the underlying substantive  offense.   The
Court  declared that, because the existence of prior  convictions
is  a distinct issue, ... it may appropriately be the subject  of
separate  determination (again, by jury trial) if that is  how  a
state  chooses to handle the issue.  Oyler, 368 U.S. at  452,  82
S.Ct. at 503-04.
          The  Supreme  Courts  explanation  of  this  point   is
significant because many of the aggravating factors listed in  AS
12.55.155(c)  hinge  on  matters that appear  to  be  essentially
independent of the determination of [the defendants] guilt on the
underlying  substantive  offense.  See aggravator  (c)(8)   prior
criminal  conduct involving aggravated or repeated  instances  of
assaultive  behavior; aggravator (c)(12)  the  defendant  was  on
bail   release  for  a  felony  or  for  a  misdemeanor  assault;
aggravator (c)(16)  the defendants criminal conduct was  designed
to  obtain substantial pecuniary gain, and the defendants risk of
prosecution  and punishment was slight; aggravator  (c)(17)   the
offense was one of a continuing series of criminal offenses  from
which  the  defendant derives a major portion of  the  defendants
income;  aggravator (c)(18)(B)  the defendant is convicted  of  a
sexual  offense specified in AS 11.41.410458, and  the  defendant
has  previously engaged in other sexual offenses under these same
sections  of the statutes; aggravator (c)(20)  the defendant  was
on  felony probation, parole, or furlough; and aggravator (c)(21)
prior history of repeated similar criminal offenses.
          The  Supreme  Courts  decisions  in  Graham  and  Oyler
strongly  suggest that the Alaska Legislature would  not  violate
the   due   process  clause  of  the  Fourteenth   Amendment   by
establishing  a procedure under which (1) matters independent  of
the  defendants  guilt  or innocence would alter  the  defendants
maximum  sentence;  (2) defendants would receive  post-conviction
notice  that  these  matters  were  to  be  litigated,  and   (3)
defendants would receive a separate post-conviction jury trial if
these  matters were contested (assuming that these  matters  were
not  exempted  from the jury trial requirement by virtue  of  the
Blakely exception for prior convictions).
          Based  on  the Supreme Courts decisions in  Graham  and
Oyler,  we conclude that, even in states which guarantee a  right
of  grand  jury indictment to felony defendants, the due  process
clause  of  the Fourteenth Amendment does not require  sentencing
factors  to  be  included  in the indictment   even  when,  under
Apprendi  and Blakely, the Sixth and Fourteenth Amendments  would
require the states to give defendants a jury trial on those  same
factors.
          Thus, if Dague is entitled to grand jury indictment  on
the   aggravating   factors  listed  in  AS  12.55.155(c),   that
entitlement must arise under Article I, Section 8 of  the  Alaska
Constitution   the provision of our constitution that  guarantees
the right of grand jury indictment.76

Why we conclude that Article I, Section 8 of the Alaska
Constitution  does not guarantee grand jury  indictment
on aggravating factors

          Article   I,   Section  8   of   the   Alaska
Constitution   guarantees  a  right   of   grand   jury
indictment  to  all persons accused of felonies.77   In
elucidation of this guarantee, AS 12.40.100(a) declares
that  an  indictment must be direct and certain  as  it
regards  ... the particular circumstances of the  crime
charged  when  [those circumstances] are  necessary  to
constitute a complete crime.  And Alaska Criminal  Rule
7(c)  states  that  an indictment  shall  be  a  plain,
concise[,] and definite ... statement  of the essential
facts constituting the offense charged.
          The  question  presented in  Dagues  case  is
whether   the   aggravating  factors   listed   in   AS
12.55.155(c)  are  elements of a defendants  underlying
crime  for purposes of grand jury indictment   whether,
in  the  words of Criminal Rule 7(c), these aggravating
factors  constitute  a portion of the  essential  facts
constituting the offense charged.
          As  we explained earlier in this opinion, the
structure  of  Alaskas  criminal code  and  presumptive
sentencing law demonstrate that the legislature did not
intend for the aggravating and mitigating circumstances
codified  in  AS  12.55.155  to  be  characterized   as
elements   of   a  crime.   Recently,  the  legislature
responded  to  Blakely  in particular,  the  suggestion
that  Blakely  might  be  read to  require  grand  jury
indictment  on  aggravating factors  by  adding  a  new
subsection to AS 12.40.100, the statute that  specifies
the  required  contents  of an  indictment.   This  new
subsection, AS 12.40.100(c), reaffirms the legislatures
intention  that aggravating factors not be  treated  as
elements  of  a crime.  AS 12.40.100(c)  declares:   An
indictment  that  complies with this section  and  with
applicable rules adopted by the supreme court is  valid
and  need  not specify aggravating factors set  out  in
AS 12.55.155.
          Of  course,  the legislatures  view  of  this
matter  is  not  controlling.  We are  dealing  with  a
constitutional  guarantee, and the  provisions  of  our
constitution  override any contrary  intention  on  the
part of the legislature.
          But  as we explained earlier, this Court  has
repeatedly  held  (in  Hartley,  Kelly,  and  State  v.
District  Court) that the aggravating factors  are  not
elements  of  the  underlying  crime  for  purposes  of
pleading.   Our  decision  in Hartley  is  particularly
important  on  this  point   because,  in  Hartley,  we
considered  and rejected the argument that  the  Alaska
Supreme Courts decision in Donlun required us to  treat
          the aggravating factors listed in AS 12.55.155(c) as
elements of the offense.
          As  we  explained in Hartley, the legislature
created the aggravating and mitigating factors codified
in AS 12.55.155 with the aim of eliminating unjustified
disparity  in  felony sentencing, and for  the  related
purpose   of   assuring  that  all  felony   sentencing
decisions would be based on legally relevant sentencing
criteria.    Because  of  this,  the  aggravating   and
mitigating factors are not elements that the State  can
either pursue or refrain from pursuing, in the exercise
of  its  prosecutorial discretion.   Moreover,  Hartley
holds  that a sentencing court has an independent  duty
to  consider applicable aggravating factors even if the
State  does  not  raise  them.   In  other  words,  the
aggravating factors are not elements of the  crime,  at
least as that concept is normally understood.
          Indeed,  in  many instances, the  aggravators
listed  in  AS  12.55.155(c)  will  not  even  be   the
functional  equivalent  of  elements  for  purposes  of
proof.   Apprendi and Blakely hold that a defendant  is
entitled  to  a  jury  trial, and  to  proof  beyond  a
reasonable   doubt,  if  an  aggravating  factor   will
increase  the  defendants potential  maximum  sentence.
But   many   of  the  aggravating  factors  listed   in
AS  12.55.155(c)  fall  within Blakelys  exemption  for
prior   convictions;   when   these   aggravators   are
established  by  the defendants prior convictions,  the
defendant  has  no  right  to  jury  trial   on   these
aggravators.78
          Moreover,  we  recently held in Cleveland  v.
State, __ P.3d __, Alaska App. Opinion No. 2060 (August
25,  2006),  2006 WL 2458578, that, under Alaskas  pre-
March  2005 form of presumptive sentencing (the version
of  the  law  at  issue in Dagues case),  Blakely  only
governs  the proof of a single aggravating  factor  for
each  felony conviction.  As we explained in Cleveland,
under the pre-2005 presumptive sentencing law, proof of
any single aggravating factor authorized the sentencing
judge to impose any sentence of imprisonment up to  the
statutory  maximum.79   Thus, once  a  single  Blakely-
compliant aggravating factor is proved  either by  jury
verdict, or by the defendants prior convictions, or  by
the  defendants express concession  the Sixth Amendment
is satisfied, and all remaining aggravating factors can
be  litigated and proved in the manner specified by the
pre-March 2005 version of AS 12.55.155.
          Our  decision  in  Cleveland  reinforces  the
conclusion that, under the pre-2005 version of  Alaskas
presumptive  sentencing  law, the  aggravating  factors
listed  in  AS  12.55.155(c) are not  elements  of  the
defendants  crime.   Cleveland  holds  that  the  Sixth
Amendment (as construed in Blakely) may require one  of
these  aggravators to be proved to a jury.  But once  a
single Blakely-compliant aggravator is established, the
          remaining aggravators can be litigated in the manner
provided  in the pre-2005 version of the law  that  is,
litigated to the sentencing judge, and proved  under  a
clear and convincing evidence standard.
          The  courts  of  several  other  states  have
confronted the question of whether the Blakely right to
jury  trial on aggravating factors carries  with  it  a
corresponding state-law right to grand jury  indictment
on  those aggravating factors.  With one exception, all
of  these courts have concluded that their state  right
to  grand jury indictment does not apply to aggravating
factors,  even  when a defendant has a Sixth  Amendment
right to jury trial on those same factors:
          See State ex rel. Smith v. Conn, 98 P.3d 881,
883-85  (Ariz.  App. 2004); Banks v. State,  842  So.2d
788, 793 (Fla. 2003); Terrell v. State, 572 S.E.2d 595,
602  (Ga.  2002);  People  v. Davis,  793  N.E.2d  552,
568-570  (Ill. 2002); Soto v. Commonwealth, 139  S.W.3d
827, 842 (Ky. 2004); Baker v. State, 790 A.2d 629,  650
(Md.  2002);  Berry  v. State, 882  So.2d  157,  171-72
(Miss.  2004);  Stevens v. State, 867  So.2d  219,  227
(Miss.  2003);  State v. Gilbert, 103 S.W.3d  743,  747
(Mo.  2003);  Floyd v. State, 42 P.3d  249,  256  (Nev.
2002);  State  v. Everette, 616 S.E.2d 237,  242  (N.C.
2005);  State  v.  Hunt, 582 S.E.2d 593,  605-06  (N.C.
2003); State v. Pender, 627 S.E.2d 343, 346 (N.C.  App.
2006);  Primeaux v. State, 88 P.3d 893, 899-900  (Okla.
Crim. App. 2004); State v. Sawatzky, 125 P.3d 722, 726-
27  (Or. 2005); State v. Heilman, 125 P.3d 728,  733-34
(Or.  2005);  State v. Cox, 98 P.3d 1103, 1115-16  (Or.
2004); State v. Oatney, 66 P.3d 475, 485-87 (Or. 2003);
State  v. Berry, 141 S.W.3d 549, 558-562 (Tenn.  2004);
State  v. Holton, 126 S.W.3d 845, 862-63 (Tenn.  2004);
State v. Carter, 114 S.W.3d 895, 910 n. 4 (Tenn. 2003);
State  v.  Dellinger, 79 S.W.3d 458, 466 (Tenn.  2002);
Russeau  v.  State, 171 S.W.3d 871, 885-86 (Tex.  Crim.
App. 2005); Rayford v. State, 125 S.W.3d 521, 533 (Tex.
Crim.  App.  2003); Morrisette v. Warden  of  Sussex  I
State Prison, 613 S.E.2d 551, 556 (Va. 2005).
          Contra:   State  v.  Fortin,  843  A.2d  974,
1027-1038   (N.J.  2004)  (requiring  that  aggravating
factors  be charged in the indictment, as a  matter  of
state law, but with prospective application only).
          The  Oregon Supreme Courts discussion of this
point in State v. Sawatzky, 125 P.3d 722 (Or. 2005), is
particularly cogent and succinct:
     
          We   agree  with  [the  defendant]  that
     Apprendi describes a sentence enhancement  as
     an  increase  beyond  the maximum  authorized
     statutory   sentence   and   the   functional
     equivalent of an element of a greater offense
     than  the  one  covered by the  jurys  guilty
     verdict.   530 U.S. at 494 n. 19,  120  S.Ct.
     [at  2365  n.  19].  [But] although  Apprendi
     requires  that the jury find the  facts  that
     would support an enhanced sentence, we do not
     agree that Apprendi requires, as a matter  of
     state  criminal  procedure,  that  [sentence]
     enhancement  factors  be  set  out   in   the
     indictment.
          .  .  .
     
          Nothing  in  Apprendi or Blakely  alters
     the  definition  of  an offense  set  out  in
     [Oregon  Statute] 161.505.  In our  view,  so
     long  as  a defendant has timely notice  that
     the    state   intends   to   prove   certain
     aggravating  or  enhancing factors  necessary
     for the imposition of a sentence that exceeds
     the [otherwise applicable] presumptive range,
     and  the  trial court affords [the] defendant
     the  opportunity to exercise his or her  jury
     trial  right  [on these issues], the  federal
     constitution is satisfied.
     
     Sawatzky, 125 P.3d at 727.
          For  the  reasons we have explained
here,  we  align  ourselves  with  the  near-
unanimous  majority of other state courts  on
this  issue.   We  hold that the  aggravating
factors  listed  in AS 12.55.155(c)  are  not
elements of a felony offense for purposes  of
Alaskas guarantee of grand jury indictment.
          Of  course, defendants have  a  due
process  right  to  adequate  notice  of  the
applicable  aggravators, and to  an  adequate
opportunity to litigate these aggravators  if
the  defendant chooses to contest them.  This
principle  is easy to state in the  abstract,
but harder to apply to particular cases.
          Dagues case provides an example  of
a  problematic  situation:   a  defendant  is
indicted and tried for an offense that is not
governed by presumptive sentencing,  but  the
defendant is found guilty of a lesser offense
that  is  governed by presumptive  sentencing
thus   making   aggravating  and   mitigating
factors legally relevant for the first time.
          In  recent legislation, the  Alaska
Legislature  has declared that defendants  in
this  situation  should  receive  notice   of
proposed aggravating factors within 48 hours,
or  at a time specified by the court, if  the
court instructs the jury about the option  to
return   a  verdict  for  a  lesser  included
offense.  AS 12.55.155(f)(2)(B).
          Conceivably,   depending   on   the
circumstances, this short notice might not be
sufficient  to  allow the  defendant  a  fair
opportunity    to   litigate    a    proposed
aggravating factor.  If so, then the superior
court  would confront the question of whether
to  recess  the  trial  or  delay  the  jurys
deliberations  (to  give the  defendant  more
time  to prepare) or, instead, allow the jury
to  deliberate on the underlying  crimes  and
then  convene a second jury to deal with  the
contested aggravating factor.
          We  note these issues, but we  need
not  resolve them here.  In Dagues case,  the
presence   of   aggravating  and   mitigating
factors did not become a live issue until the
jury  acquitted Dague of second-degree murder
and  found  her guilty of manslaughter.   (At
the time of Dagues trial, the legislature had
not  yet  amended AS 12.55.155(f) to  require
the   State   to  give  notice  of   proposed
aggravating factors within 48 hours after the
trial  judge decides to instruct the jury  on
lesser   included   offenses.)    The   State
proposed  aggravator  (c)(5)  on  the   first
business  day  following the  jurys  verdict:
October  4,  2004.   At Dagues  request,  the
superior court dismissed the jury, leading to
the  present  appellate proceedings.   Dagues
sentencing has now been delayed by almost two
years    on   account   of   this   appellate
litigation.  Under these circumstances, Dague
has had adequate notice of aggravator (c)(5).
          Accordingly,   our   decision    is
confined  to  the  narrow issue  of  whether,
under  the  Alaska Constitution,  aggravating
factors  must  be pleaded in the  indictment.
We hold that they need not be.

The superior court will not violate Dagues rights under
the  double jeopardy clause if the court now holds
a  jury trial on the aggravating factor alleged by
the State

     One   final  issue  remains  to  be  decided:
whether  the  double jeopardy clause  forbids  the
superior court from holding a second jury trial on
the  aggravating factor proposed by the  State  in
Dagues  case.   To  explain this  issue,  we  must
briefly  recapitulate  the procedural  history  of
Dagues case.
          As  we explained early in this opinion, Dague
was   indicted  and  tried  for  second-degree  murder,
following the death of a ten-month-old infant  left  in
her  care.   The  offense of second-degree  murder  was
governed by indeterminate sentencing.  In other  words,
if  Dague  had been convicted of second-degree  murder,
the  presence or absence of aggravating and  mitigating
factors  would  have  had  no  effect  on  the   courts
sentencing  authority.80  But the jury acquitted  Dague
of  second-degree murder and found her  guilty  of  the
lesser  offense  of  manslaughter.  Manslaughter  is  a
class   A  felony  offense,  and  it  is  governed   by
presumptive  sentencing.  As a first  felony  offender,
Dague faced a presumptive term of 5 years imprisonment,
and  the  court had no authority to impose  any  higher
sentence  unless the State proved one or  more  of  the
aggravating factors listed in AS 12.55.155(c).
          After  the  jury  returned its  verdict,  the
State asked Judge Volland to hold Dagues jury over  the
weekend,  until Monday, so that the jury could consider
any  aggravating factors that applied to Dagues  crime.
Dague responded that the State was barred from pursuing
aggravating factors because no aggravating factors  had
been  alleged  in the indictment.  She  argued  in  the
alternative that, even if aggravating factors  did  not
have  to be pleaded in the indictment, she nevertheless
had    received   insufficient   notice   of   whatever
aggravators the State might propose.
          Judge  Volland agreed to hold the  jury  over
until  Monday   at which time he would  hear  arguments
from  the  parties on two issues:  whether  aggravators
needed to be pleaded in the indictment, and whether  it
was  feasible to delay Dagues jury trial to resolve the
various  legal  issues  surrounding  the  States  post-
verdict proposal of aggravating factors.
          When  the  parties re-assembled in  court  on
Monday,  the  State  proposed aggravator  (c)(5)   that
Dague  knew  or reasonably should have known  that  the
victim  of  the offense was particularly vulnerable  or
incapable of resistance due to ... extreme youth.
          Dague  argued  that, because  of  the  United
States  Supreme  Courts decision in  Blakely,  she  was
entitled  to  grand jury indictment on any  aggravating
factor.   Dague also contended that she was  prejudiced
by  the  lack  of  pre-trial  notice  of  the  proposed
aggravator.  She asserted that she had been  unable  to
plan  her  trial strategy so as to counter the proposed
aggravator, and she also asserted that the States post-
verdict  notice of the aggravator hampered her  ability
to  make  strategic  decisions on how  to  prepare  for
sentencing.  Dague also argued that she was entitled to
have  the  same  jury  decide the proposed  aggravating
factor,  and she contended that the States post-verdict
notice of the aggravator made it impracticable to  hold
the  jury.   For all of these reasons, Dague asked  the
superior court to discharge the jury and bar the  State
from pursuing the proposed aggravator.
          Judge  Volland  granted  Dagues  request   to
discharge the jury, and he further ruled that the State
was  barred from pursuing its proposed aggravator  with
any later jury.
          Dague   now   argues  that   Judge   Vollands
          resolution of this matter was mandated by the double
jeopardy clause of the federal and state constitutions.
(Dague  makes no separate argument based on the  Alaska
double  jeopardy  clause; rather, she makes  a  unified
argument  that depends primarily on cases  interpreting
the federal double jeopardy clause.)
          The   underlying  premise  of  Dagues  double
jeopardy  argument  is the assertion  that  the  States
proposed aggravating factor, (c)(5), must be deemed  an
additional  element  of  her offense.   Based  on  this
premise,  Dague argues that, in essence, the  State  is
now  attempting to bring her to trial on  a  charge  of
aggravated manslaughter, a new and greater offense than
the  non-aggravated manslaughter reflected in the jurys
verdict.   And  Dague argues that the  double  jeopardy
clause  forbids the government from taking a  defendant
to  trial on a criminal charge and then, following  the
verdict,  charging  the defendant with  a  new,  higher
degree of the same crime.
          We  have already explained, at length, why we
conclude  that  Dagues  premise  is  wrong    why   the
aggravating factors listed in AS 12.55.155(c)  are  not
elements of the felony offenses governed by presumptive
sentencing.
          As  we  recently noted in Cleveland v. State,
the   proof   of  any  single  aggravating  factor   is
sufficient  to authorize a sentencing judge  to  exceed
the prescribed presumptive term and impose any sentence
up  to  the statutory maximum.  Thus, depending on  the
circumstances   of  a  defendants   case,   the   first
aggravating  factor to be proved may be viewed  as  the
functional  equivalent of an element  for  the  limited
purpose of assessing the defendants right to jury trial
under the Sixth Amendment.  But aggravating factors are
not elements for other purposes.
          In  particular, Hartley and Kelly hold  that,
for   purposes  of  indictment  and  pre-trial  notice,
aggravating factors are not elements of the  defendants
underlying  crime.   Thus, the  crime  of  manslaughter
without  proof of aggravating factors is not  a  lesser
offense included within a purportedly distinct crime of
manslaughter   accompanied  by  proof  of  aggravators.
Dagues  offense  is manslaughter, and the  presence  or
absence  of  aggravating factors does  not  alter  this
just  as  the presence or absence of mitigating factors
would  not  alter it, even though the courts sentencing
range  would be changed (to Dagues benefit) if  one  or
more mitigating factors were proved.
          Moreover,  as  we explained in the  preceding
section  of  this  opinion,  in  both  Graham  v.  West
Virginia  and Oyler v. Boles the United States  Supreme
Court  rejected a double jeopardy attack on a  habitual
criminal   law   that  authorized  the  imposition   of
substantially  increased penalties for felony  offenses
if  the  defendant had prior felony convictions.   West
Virginia  law allowed the State to give notice  of  its
intent  to  prove  these  prior convictions  after  the
defendant was convicted of the underlying offense,  and
it   allowed   the  State  to  litigate   these   prior
convictions  at a separate trial in front of  a  second
jury.   In  both  Graham and Oyler, the  Supreme  Court
declared that this procedure did not violate the double
jeopardy clause.
          As  the Supreme Court explained in Oyler, the
fact   that   the  defendant  may  have  prior   felony
convictions   is   essentially   independent   of   the
determination  of  [the  defendants]   guilt   on   the
underlying substantive offense  a distinct issue [that]
may   appropriately   be  the   subject   of   separate
determination.  Id., 368 U.S. at 452, 82 S.Ct. at  503-
04.
          See also Spencer v. Texas, 385 U.S. 554, 566;
87  S.Ct.  648, 655; 17 L.Ed.2d 606 (1967),  where  the
Supreme  Court noted that, in some states,  a  sentence
enhancement  proceeding can be  instituted  even  after
[the  defendants]  conviction on  the  new  substantive
offense, and the Court declared that [t]olerance for  a
spectrum of state procedures dealing with [this] common
problem of law enforcement is especially appropriate.
          Although  the decisions in Graham  and  Oyler
involved a statute that called for an enhanced sentence
based  on the defendants prior convictions, the wording
of  Graham  and  Oyler suggests that the Supreme  Court
would adhere to the same double jeopardy rule  that is,
the  Supreme Court would allow a separate, post-verdict
jury trial  whenever the sentence enhancement was based
on  facts  essentially independent of the determination
of guilt on the underlying substantive offense.  Oyler,
368 U.S. at 452, 82 S.Ct. at 503.
          As  we  pointed out earlier in this  opinion,
such  a  rule  would cover several of  the  aggravating
factors  listed  in  AS 12.55.155(c)   the  aggravators
dealing  with issues such as whether the defendant  was
on  probation, parole, or bail release at the  time  of
the offense, or whether the defendant had a history  of
similar  offenses or assaultive behavior.  We  concede,
however,  that it is not clear whether the  aggravating
factor  at  issue  in  Dagues case, aggravator  (c)(5),
should   be  deemed  essentially  independent  of   the
determination  of  [Dagues]  guilt  on  the  underlying
substantive offense.
          Aggravator (c)(5) applies to cases  in  which
the defendant was aware, or reasonably should have been
aware,  that the victim of the offense was particularly
vulnerable  (here, the potential vulnerability  arising
from  the  victims  extreme youth).  Technically,  this
issue  of  fact  is  not among the elements  of  either
second-degree murder (the offense for which  Dague  was
indicted) or manslaughter (the lesser offense that  she
was convicted of).  However, it seems almost inevitable
that  the victims extreme youth was one of the  factors
that  the  jurors considered when they assessed  Dagues
culpable  mental  state   that is,  when  they  decided
whether  Dague acted with extreme indifference  to  the
value  of  human  life (the culpable mental  state  for
second-degree  murder)  or recklessness  (the  culpable
mental state for manslaughter).
          But  even if we assume that the issue of fact
presented  by  aggravator (c)(5) does  not  qualify  as
essentially  independent  of the  issues  litigated  at
Dagues  trial, and if we further assume that Dague  was
entitled to have a single jury decide both her guilt of
manslaughter and the presence or absence of the  States
proposed  aggravating factor, we still  conclude  that,
given  the  circumstances of Dagues case, it  will  not
violate Dagues rights under the double jeopardy  clause
for us to remand this case to the superior court for  a
jury trial on the States proposed aggravating factor.
          Dagues   jury   was  not  asked   to   decide
aggravator  (c)(5), so the jury never explicitly  ruled
on  this  issue.  Nor do the jurys verdicts  in  Dagues
case   finding her not guilty of second-degree  murder,
but  finding her guilty of manslaughter  constitute  an
implicit finding in Dagues favor on proposed aggravator
(c)(5).   Although the jury acquitted Dague of  second-
degree  murder, this acquittal is consistent  with  the
conclusion  that Dague knew or should have  known  that
the infant was particularly vulnerable.  The jury found
that  Dague  committed  manslaughter   that  she  acted
recklessly  when she caused the infants  death.   Under
the   definition   of   recklessly   codified   in   AS
11.81.900(a)(3),  a person commits a reckless  homicide
if  they  are  aware of, and consciously  disregard,  a
substantial  and unjustifiable risk that their  conduct
will  lead  to the death of another.  Thus,  the  jurys
verdicts  are  not an implied rejection  of  aggravator
(c)(5);  rather,  these verdicts  are  consistent  with
aggravator (c)(5).
          Because  the jurys verdicts do not constitute
an  implicit rejection of aggravator (c)(5)   that  is,
because  these verdicts do not constitute  an  implicit
acquittal on aggravator (c)(5)  the verdicts themselves
do  not bar the State from pursuing further proceedings
against  Dague to prove this aggravator.   Accordingly,
if  the  double  jeopardy clause  protects  Dague  from
further litigation of this issue, that protection  must
arise   from  the  double  jeopardy  clauses  guarantee
against  successive prosecutions.  Thus, the  remaining
question is whether the convening of a second  jury  to
decide  aggravator (c)(5) would constitute a successive
prosecution for double jeopardy purposes.
          As we explained above, the Supreme Court held
in  Graham and Oyler that, in many instances,  a  state
may subject a defendant to a separate, second trial  on
sentencing   factors  without  violating   the   double
jeopardy  clause.   But even assuming  that  aggravator
(c)(5) does not fall within the category of aggravating
factors  for  which two separate trials  are  expressly
allowed  under Graham and Oyler, the fact remains  that
the State did not seek to subject Dague to two separate
trials.  Rather, immediately after the jury found Dague
guilty   of   manslaughter   an  offense  governed   by
presumptive  sentencing  the State asked  the  superior
court to hold Dagues jury so that the same jurors could
consider  the States proposed aggravating  factor.   In
other  words, the State sought a continuation of Dagues
trial, with the same jury, as soon as Dagues conviction
for manslaughter triggered presumptive sentencing (thus
raising   the  issue  of  aggravating  and   mitigating
factors).
          The  trial  did  not continue  because  Dague
opposed  the States request.  She argued that  she  was
entitled  to  grand jury indictment on any  aggravating
factors,  and  that it was too late for  the  State  to
amend  the  indictment  by adding  aggravating  factors
because  if any aggravating factors were added  to  the
indictment,  the  amended indictment would  effectively
charge  a  new  and greater offense.   Based  on  these
arguments,  Dague asked the superior court  to  dismiss
her jury  and the superior court did so.
          By  expressly  asking the superior  court  to
dismiss  the  jury, Dague waived any  right  she  might
otherwise have had to insist that a single jury  decide
both  her guilt of the homicide and the States proposed
aggravating factor.  Her trial has been divided in  two
because of her own efforts.
          Accordingly, it will not violate  the  double
jeopardy  clause for us to remand Dagues  case  to  the
superior  court  for  a  jury  trial  on  the  disputed
aggravating  factor.  Again, we agree with  the  Oregon
Supreme Courts analysis of this question in Sawatzky:
     
          [A   new   jury   trial  on  aggravating
     circumstances]  is not a second  prosecution.
     Rather,  it  is  a sentencing  proceeding  on
     remand     a   continuation   of   a   single
     prosecution.   See State v. Montez,  309  Or.
     564,  604,  789 P.2d 1352 (1990)  (A  penalty
     phase hearing is merely a continuation of the
     same  trial  and not a separate or collateral
     proceeding  threatening a  new  or  different
     sanction).  Because it is [the defendant] who
     challenged the legality of her sentences  ...
     ,  she  cannot  now claim that  she  had  any
     justifiable   expectation  of   finality    a
     fundamental   jeopardy   requirement     with
     respect to her sentences.
          .  .  .
     
          We  hold that [the defendant] has no ...
     constitutional [double] jeopardy  right  that
     prohibits the empaneling of a [new]  jury  to
     determine whether certain aggravating factors
     may  support the imposition of sentences that
     exceed  the presumptive range for the  crimes
     to which [the defendant] pleaded guilty.
     
     Sawatzky, 125 P.3d at 726-27.
     
Judge  Vollands  alternative ground for preventing  the
State from litigating the aggravating factor

          In  addition to the legal issues that we have
discussed  here, Judge Volland barred  the  State  from
pursing  aggravating factor (c)(5) because he  believed
that,  if this aggravating factor were litigated, Dague
would be required to re-summon the expert witnesses who
testified at trial regarding her mental state,  and  he
concluded  that  it  would be fundamentally  unfair  to
require  Dague  to  bear  the  additional  expense   of
bringing these witnesses back to Alaska.
          We are not certain why Judge Volland believed
that  these  expert witnesses would be crucial  to  the
jurys  decision  on  aggravator (c)(5).   Although  the
jurys  decision on the charges of second-degree  murder
and  manslaughter  required  an  evaluation  of  Dagues
subjective mental state, aggravator (c)(5) is proved if
the defendant knew or reasonably should have known that
the  victim  of the offense was particularly vulnerable
or  incapable  of resistance due to ... extreme  youth.
That  is,  aggravator  (c)(5) does  not  focus  on  the
defendants   subjective  mental   state;   rather,   it
incorporates an objective, negligence test.
          In  any  event, Dague does not rely  on  this
aspect of Judge Vollands ruling in this appeal.

Conclusion

          We  acknowledge that defendants  have  a  due
process  right to advance notice of the States proposed
aggravating  factors  and a sufficient  opportunity  to
prepare  for  litigation if the  defendant  intends  to
dispute  these  aggravating factors.   But  to  resolve
Dagues case, we need not define the precise contours of
this  due  process  right.   Dagues  case  presents   a
narrower issue: whether the States proposed aggravating
factors must be charged in the defendants indictment.
          For  the  reasons explained here, we conclude
that  even when the Sixth Amendment, as interpreted  in
Blakely v. Washington, guarantees a defendant the right
to  jury  trial  on  an aggravating  factor  listed  in
AS  12.55.155(c),  that aggravating factor  is  not  an
element  of  the defendants crime for purposes  of  the
grand jury clause of the Alaska Constitution.
          We  further conclude that, under the facts of
Dagues   case,   a  second  jury  trial  addressed   to
aggravator  (c)(5)  will  not  violate  the   guarantee
against successive prosecutions embodied in the  double
jeopardy clause of the federal and state constitutions.
          We  REVERSE  the  decision  of  the  superior
court, and we remand Dagues case to the superior  court
to  allow  the parties to litigate proposed aggravating
factor AS 12.55.155(c)(5) before Dague is sentenced for
manslaughter.

_______________________________
     1Blakely, 542 U.S. at 301-03, 124 S.Ct. at 2536-37.

     2See, e.g., Moore v. State, 123 P.3d 1081, 1091 (Alaska App.
2005); Haag v. State, 117 P.3d 775, 782 (Alaska App. 2005).

     3530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

4See AS 11.41.120(a) (defining the offense of manslaughter).

5See AS 12.55.125(b).

6See Allen v. State, 56 P.3d 683, 684-85 (Alaska App. 2002).

7AS 12.55.125(c).

8See AS 12.55.125(c)(1) (version in effect in 1997).

9See SLA 1999, ch. 54,  10.

10See SLA 1978, ch. 166,  3 & 25.

11For   example,   the  former  manslaughter   statute,   AS
11.15.040,  declared  that this offense  was  punishable  by
imprisonment in the penitentiary for not less than one  year
nor  more than 20 years.  Similarly, the former rape statute
(AS   11.15.120)  was  immediately  followed  by  a  penalty
statute,  AS  11.15.130,  which  declared  that,  except  in
certain  cases  of  incest  or sexual  intercourse  with  an
underage female, the punishment for rape was imprisonment in
the  penitentiary for not more than 20 years nor  less  than
one  year.  Other examples are former AS 11.15.160  (assault
with  intent to kill or commit rape or robbery),  former  AS
11.15.250  (larceny  from the person), former  AS  11.20.010
(arson  in  the  first  degree),  and  former  AS  11.20.100
(burglary not in a dwelling house).

12This  quoted  characterization is actually  found  in  the
Judicial  Councils follow-up study, Alaska Felony Sentences:
1980   (December  1982),  page  i.   The  Councils  original
sentencing  study was  Alaska Felony Sentencing Patterns:  A
Multivariate Statistical Analysis (1974-76) (April 1977).

13See  SLA  1978, ch. 166,  12, which enacted  AS  12.55.125
through  12.55.175.  The history of presumptive  sentencing,
and  the  legislative motivation for enacting this  form  of
sentencing, are recounted in Juneby v. State, 641 P.2d  823,
829-830 (Alaska App. 1982).

14See  SLA 1982, ch. 143,  28; SLA 1992, ch. 79,   25.   And
see  Austin  v.  State,  627 P.2d 657  (Alaska  App.  1981);
Brezenoff v. State, 658 P.2d 1359 (Alaska App. 1983); Dayton
v. State, 120 P.3d 1073 (Alaska App. 2005).

15Blakely,  542 U.S. at 323, 124 S.Ct. at 2548-49  (OConnor,
J., dissenting).

16Blakely, 542 U.S. at 315, 124 S.Ct. at 2544 (OConnor,  J.,
dissenting), quoting Senate Report No. 98-225 (1983), p. 38,
1983  U.S.  Code, Congressional & Administrative  News,  pp.
3182, 3221.

17Blakely, 542 U.S. at 315, 124 S.Ct. at 2544 (OConnor,  J.,
dissenting).

3 P.2d at 1056; Kelly, 663 P.2d at 9

74-75; State v. District Court, 53

 P.3d at 633. 22Id.  App. 2002).

21Hartley,  653  P.2d at 1056; Kelly, 663  P.2d  at  974-75;
State v. District Court, 53 P.3d at 633.

22Id.

23Hartley, 653 P.2d at 1055.

24Id. at 1055-56.

25Id. at 1056.

26Donlun, 527 P.2d at 473-74 & n. 4.

27Id. at 474.

28Id. at 473.

29Post, 635 P.2d at 1195.

30Id. at 1196-97.

31State v. District Court, 53 P.3d at 633.

     32530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

33For  an  example  of  a statute establishing  a  mandatory
minimum  penalty  for certain felonies  when  the  defendant
possessed  or used a firearm, see the statute  at  issue  in
Whitton  v. State, 479 P.2d 302 (Alaska 1970).  This statute
imposed   a   mandatory  minimum  sentence   of   10   years
imprisonment on any defendant convicted of robbery, assault,
murder,  rape,  burglary,  or kidnapping  if  the  defendant
use[d] or carrie[d] a  firearm during the commission of  the
offense.   (This statute is quoted verbatim in Whitton,  479
P.2d at 304 n. 2.)  For an example of a statute imposing  an
additional penalty for the possession or use of a  dangerous
weapon during the commission of a felony, see the statute at
issue in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74
L.Ed.2d 535 (1983).  This statute provided that, in addition
to  the  prescribed penalty for a felony offense,  a  felony
defendant faced a supplemental term of imprisonment  if  the
defendant  committed the offense by, with,  or  through  the
use,  assistance,  or aid of a dangerous or  deadly  weapon.
(This  statute  is quoted in Hunter, 459 U.S.  at  362,  103
S.Ct. at 676.)

34Huf, 675 P.2d at 272.

35Kleber, 575 P.2d at 904.

36Id.

37Quoted in Huf, 675 P.2d at 272.

38Oregon Statute 161.610 (1979), described in Wedge, 652
P.2d at 776.

39Wedge, 652 P.2d at 778.

40Apprendi, 530 U.S. at 468-69, 120 S.Ct. at 2351.

41Id., 530 U.S. at 468, 120 S.Ct. at 2351.

42Id., 530 U.S. at 468-69, 471; 120 S.Ct. at 2351, 2352.

43Id., 530 U.S. at 471, 120 S.Ct. at 2352.

44Id., 530 U.S. at 472-73, 120 S.Ct. at 2353-54.

45Id., 530 U.S. at 476, 120 S.Ct. at 2355.

46Id.

47Id., 530 U.S. at 478, 120 S.Ct. at 2356.

48Id., 530 U.S. at 483, 120 S.Ct. at 2359.

49477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

50Apprendi, 530 U.S. at 485, 120 S.Ct. at 2360.

51Id., 530 U.S. at 486, 120 S.Ct. at 2360.

52See id., 530 U.S. at 492, 120 S.Ct. 2363-64.

53Id., 530 U.S. at 494, 120 S.Ct. at 2365.

54Id.

55Id.

56Id.

57Id., 530 U.S. at 490, 120 S.Ct. at 2362-63.

58542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

59Blakely, 542 U.S. at 305, 124 S.Ct. at 2538.

60543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

61Booker, 543 U.S. at 230, 125 S.Ct. at 748, quoting In re
Winship,  397  U.S. 358, 364; 90 S.Ct. 1068,  1073;  25
L.Ed.2d 368 (1970).

62Id., 543 U.S. at 230, 125 S.Ct. at 748, quoting United
States  v.  Gaudin, 515 U.S. 506, 511; 115 S.Ct.  2310,
2314; 132 L.Ed.2d 444 (1995).

63Booker,  543 U.S. at 231, 125 S.Ct. at  748,  quoting
Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.

64Ring, 536 U.S. at 609, 122 S.Ct. at 2443.

65Summerlin, 542 U.S. at 349, 124 S.Ct. at 2521.

66Id.,  542 U.S. at 351-53, 124 S.Ct. at 2522-23; Teague  v.
Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

67Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,  20
L.Ed.2d 491 (1968).

68Ned v. State, 119 P.3d 438, 444-45 (Alaska App. 2005).

69See, for example, Carlson v. State, 128 P.3d 197, 204
(Alaska App. 2006).

70Oyler, 368 U.S. at 449, 82 S.Ct. at 502.

71Id., 368 U.S. at 453, 82 S.Ct. at 504.

72Id., 368 U.S. at 452 n. 5, 82 S.Ct. at 503 n. 5.

73Id., 368 U.S. at 451-52, 82 S.Ct. at 503.

74Id., 368 U.S. at 452, 82 S.Ct. at 504.

     75See Grinols v. State, 10 P.3d 600, 610 n. 25 (Alaska  App.
2000).

76The  pertinent  portion of Article I,  Section  8  states:   No
person  shall  be  held  to answer for a  capital,  or  otherwise
infamous, crime unless on a presentment or indictment of a  grand
jury, except in cases arising in the armed forces in time of  war
or public danger.

77Like  the  corresponding provision of  the  United  States
Constitution,   Article  I,  Section   8   of   the   Alaska
Constitution refers to the right of indictment  for  capital
or otherwise infamous crimes.  The phrase infamous crime has
long  been  construed to apply to all felonies.  See  United
States  v.  Powers, 1 Alaska 180, 185-86 (D.  Alaska  1901).
This  construction is now codified in Alaska  Criminal  Rule
7(a),  which states that an indictment is required  for  any
offense  which  is  punishable by  a  term  of  imprisonment
exceeding one year  i.e., a felony.  See AS 11.81.900(b)(24)
(the definition of felony).

78See,  e.g.,  Cleveland v. State, __ P.3d __,  Alaska  App.
Opinion  No. 2060 (August 25, 2006), slip opinion  at  p.  8
(aggravator (c)(18)(B)); Snelling v. State, 123  P.3d  1096,
1098  (Alaska  App.  2005) (aggravator  (c)(7));  Greist  v.
State,  121  P.3d 811, 814-15 (Alaska App. 2005) (aggravator
(c)(19));  Grohs  v. State, 118 P.3d 1080,  1083-84  (Alaska
App.  2005)  (aggravator (c)(21)); Milligrock v. State,  118
P.3d  11,  15-16 (Alaska App. 2005) (aggravators (c)(7)  and
(c)(8)).

79Cleveland,  __ P.3d at __, Alaska App. Opinion  No.  2060,
slip opinion at pp. 20-22.

80Allen v. State, 56 P.3d 683, 684-85 (Alaska App. 2002).

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