Opinion
Court of Appeals No. A-9367.
October 11, 2006.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Mark I. Wood, Judge. Trial Court No. 4BE-04-527 Cr.
Marvin Hamilton, Assistant Public Defender, Ketchikan, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
James Aluskak was convicted of third-degree sexual abuse of a minor, a class C felony. Aluskak's sentencing was governed by the pre-March 2005 version of Alaska's presumptive sentencing law. Because Aluskak was a second felony offender, he faced a 2-year presumptive term of imprisonment under the pre-2005 version of AS 12.55.125(e)(1).
AS 11.41.438(a) (defining the crime) and AS 11.41.438(b) (specifying that this offense is a class C felony).
By the time of Aluskak's trial, the United States Supreme Court had already issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court held that the right to jury trial under the Sixth Amendment applies to all issues of fact (other than a defendant's prior convictions) which, if resolved against the defendant, would subject the defendant to a higher maximum sentence.
Accordingly, immediately after the jury found Aluskak guilty of third-degree sexual abuse of a minor, the State asked the superior court to hold a jury trial on several proposed aggravating factors under AS 12.55.155(c). For reasons that are not pertinent here, Superior Court Judge Mark I. Wood eventually ruled that the State had forfeited its right to a jury trial on these proposed aggravating factors. However, Judge Wood then took up the issue of whether some of the State's proposed aggravators fell within the Blakely exception for prior convictions.
The State argued that two of its proposed aggravators fell within this exception. The State asserted that the judgements issued in Aluskak's prior criminal cases established both aggravator (c)(8) (that Aluskak had a history of aggravated or repeated assaultive behavior) and aggravator (c)(20) (that Aluskak was on felony probation or parole at the time of his current offense).
Judge Wood ruled that aggravator (c)(8) did not fall within the Blakely exception for prior convictions, but he ruled that aggravator (c)(20) did fall within this exception — meaning that he, as the sentencing judge, could decide aggravator (c)(20) without submitting the issue to a jury. Judge Wood then ruled that the State had proved aggravator (c)(20) — i.e., had proved that Aluskak was on felony probation when he committed his current offense.
Based on the proof of this aggravating factor, Judge Wood increased the 2-year presumptive term of imprisonment by adding 2 years of suspended imprisonment. Thus, Aluskak received a sentence of 4 years with 2 years suspended.
Aluskak appeals this sentence, arguing that aggravator (c)(20) does not fall within the Blakely exception for prior convictions, and that Judge Wood therefore committed error when he relied on this aggravator.
Judge Wood issued his rulings on the aggravators (c)(8) and (c)(20) on April 8, 2005. On July 29, 2005, this Court issued our decision in Milligrock v. State, 118 P.3d 11 (Alaska App. 2005). In Milligrock, we held that aggravator (c)(8) falls within the Blakely exception for prior convictions if the State's proof of this aggravator rests on the defendant's prior convictions, rather than on unprosecuted (or unsuccessfully prosecuted) acts of assault. Id. at 16.
Moreover, this Court recently held that, under Alaska's pre-March 2005 presumptive sentencing law, the proof of a single Blakely-compliant aggravating factor is sufficient to satisfy Blakely and authorize a sentence above the specified presumptive term. Cleveland v. State, ___ P.3d ___, Alaska App. Opinion No. 2060 (August 25, 2006), 2006 WL 2458578.
Because of our decisions in Milligrock and Cleveland, it may be unnecessary for us to resolve the question of whether aggravator (c)(20) falls within Blakely's exception for prior convictions.
Accordingly, we REMAND this case to the superior court, directing the court to reconsider its ruling that aggravator (c)(8) is not covered by the Blakely exception for prior convictions. The superior court shall decide (1) whether it would be proper for the court to resolve aggravator (c)(8) without a jury — and, if so, (2) whether the State has proved aggravator (c)(8).
The superior court shall transmit its rulings on these matters to this Court within 60 days. The parties shall then have 30 days to file supplemental memoranda addressing the superior court's rulings.
After we have received the superior court's rulings and any supplemental memoranda filed by the parties, we will resume our consideration of Aluskak's appeal.
We retain jurisdiction of this case.
We additionally note that the judgement issued by the superior court lists the wrong statute number when describing Aluskak's offense. The judgement correctly describes Aluskak's offense as sexual abuse of a minor in the third degree, but then lists "AS 11.41.425(a)(1)" as the statute violated. The offense of third-degree sexual abuse of a minor is defined in AS 11.41.438(a). We authorize the superior court to correct this clerical error now, notwithstanding our retention of jurisdiction. See Alaska Criminal Rule 36 and Alaska Civil Rule 60(a).