Opinion
Court of Appeals Nos. A-8638 9577.
March 19, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-01-5676 Cr.
Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In our prior decision in this case, Anderson v. State, 123 P.3d 1110 (Alaska App. 2005), we concluded that the superior court improperly relied on certain aggravating factors when it sentenced Anderson. For this reason, we directed the superior court to conduct a new sentencing. Id. at 1121.
At the re-sentencing, the superior court relied on only three aggravating factors under AS 12.55.155(c): (c)(8) — that Anderson had a history of aggravated or repeated assaultive behavior; (c)(20) — that Anderson was on felony parole at the time of his offenses in this case; and (c)(21) — that Anderson had a history of repeated instances of criminal behavior similar to his current offenses. (This third aggravator applied only to Anderson's current convictions for first-degree and third-degree assault). However, even with this reduced number of aggravators, the superior court still imposed the same composite sentence of 33 years to serve (45 years with 12 years suspended).
Anderson now renews his appeal of this sentence.
He first argues that the right to jury trial recognized in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precluded the superior court from relying on aggravators (c)(8), (c)(20), and (c)(21) unless and until these aggravators were submitted to a jury and proved beyond a reasonable doubt.
But when Judge Card found these three aggravators, he explicitly declared that his ruling was based solely on Anderson's prior criminal convictions. Anderson does not dispute the existence of these convictions, and the Blakely right to jury trial does not apply to aggravating factors that are based on a defendant's undisputed prior convictions.
Lockuk v. State, 153 P.3d 1012, 1015 (A laska App. 2007); Active v. State, 153 P.3d 355, 366 (Alaska App. 2007); Tyler v. State, 133 P.3d 686, 689-690 (Alaska App. 2006).
Anderson argues that certain recent pronouncements of the United States Supreme Court — in particular, Justice Thomas's concurrence in Shepard v. United States, 544 U.S. 13, 26-28; 125 S.Ct. 1254, 1263-64; 161 L.Ed.2d 205 (2005) — cast doubt on the continuing vitality of Blakely's "prior conviction" exception. But as this Court explained in Tyler v. State, 133 P.3d 686, 690 (Alaska App. 2006), we "are bound by Supreme Court precedent — i.e., bound by the prior conviction exception applied in . . . Blakely — unless and until the United States Supreme Court actually modifies or eliminates this exception."
Anderson also argues that, even though federal law recognizes a "prior conviction" exception to the Blakely right of jury trial, Alaska law independently imposes a right of jury trial with respect to aggravating factors — and Alaska law does not recognize an exception for aggravating factors premised on a defendant's prior convictions. We fully considered and rejected this same argument in Active v. State, 153 P.3d 355, 366-67 (Alaska App. 2007).
Anderson further argues that, under Alaska law, aggravating factors must be pleaded in the indictment and established during the grand jury proceedings. We fully considered and rejected this argument in State v. Dague, 143 P.3d 988, 994-98 (Alaska App. 2006).
Anderson next argues that, even if the "prior conviction" exception is good law, Judge Card exceeded the scope of that exception when he found the three aggravators in this case.
Aggravator (c)(8) applies when a defendant has a history of aggravated or repeated assaultive behavior. Conceivably, even under the "prior conviction" exception, a sentencing judge would not be authorized to determine whether a defendant's prior conviction for assault represented "aggravated" assaultive behavior. However, Anderson's case does not present this issue. Judge Card found aggravator (c)(8) based on Anderson's repeated convictions for assault. And we have already held that defendants are not entitled to a jury trial on the issue of whether they have "repeated" prior convictions for assault. Milligrock v. State, 118 P.3d 11, 15-16 (Alaska App. 2005).
Anderson makes essentially the same argument with respect to aggravator (c)(21). That is, Anderson argues that Judge Card was obliged to have a jury decide whether his prior convictions for assault represented instances of criminal behavior that was "similar" to Anderson's current offenses of first-and third-degree assault.
We addressed this issue in Grohs v. State, 118 P.3d 1080 (Alaska App. 2005). In Grohs, we held that a sentencing judge does not exceed the scope of the Blakely exception for prior convictions as long as "the defendant [does] not dispute the fact of [the prior] convictions, and [the State's proposed proof of aggravator (c)(21) rests] simply on the convictions themselves and the legal elements of those crimes, rather than . . . [on] evidence of the particular facts underlying the prior convictions." Id. at 1084.
Here, the record shows that Judge Card relied on Anderson's two prior convictions for misdemeanor assault in 1997 and 1998. Anderson does not contest the existence of those prior convictions, nor does he offer anything to suggest that the elements of misdemeanor assault are not "similar" (for purposes of aggravator (c)(21)) to his current offenses of first-and third-degree assault. We therefore conclude that Judge Card did not exceed the proper scope of the "prior conviction" exception when he found aggravator (c)(21) based on Anderson's prior assault convictions.
This leaves aggravator (c)(20) — that Anderson was on felony parole at the time of his current offenses. We have not previously decided whether this aggravator falls within the Blakely exception for prior convictions. Some courts have held that this issue ( i.e., a defendant's status on probation or parole) falls within the Blakely exception for prior convictions because (obviously) a defendant's probation or parole release stems directly from a preceding criminal conviction. But while a criminal judgement may unambiguously reveal that a defendant will receive, or at least will be eligible for, probation or parole release, the judgement will generally not reveal the defendant's status on any given date. That is, the judgement will not contain the precise dates of the defendant's probation or parole release, nor will it reveal whether the defendant's probation or parole is subsequently revoked (with the defendant being returned to custody).
In Anderson's case, we need not resolve this issue — because his attack on aggravator (c)(20) fails for another reason.
In Snelling v. State, 123 P.3d 1096, 1098-99 (Alaska App. 2005), and again in Cooper v. State, 153 P.3d 371, 372-73 (Alaska App. 2007), we held that any Blakely error with respect to aggravator (c)(20) is harmless if the defendant never actually disputes that they were on felony probation or parole at the time of their current offense. In such instances, where there is no reasonable possibility that the defendant would have prevailed if aggravator (c)(20) had been submitted to a jury, any arguable Blakely error is harmless beyond a reasonable doubt.
In Anderson's case, the pre-sentence report states that he was released on mandatory felony parole on October 22, 2000, and that he remained on parole release "until his arrest on the present offense[s] on July 19, 2001." Anderson has never disputed that he was on felony parole release at the time of his offenses. Thus, any Blakely error with respect to aggravator (c)(20) is harmless.
Anderson next argues that, even if Judge Card was authorized to find the three aggravating factors without submitting them to a jury, Judge Card was nevertheless required to have a jury decide whether Anderson should receive consecutive sentences, and also whether the composite total of these consecutive sentences (33 years to serve) was justified by the need to protect the public.
We rejected Anderson's first argument — that Blakely applies to the decision whether to impose consecutive sentences — in Edmonds v. State, 118 P.3d 17, 18, 21-22 (Alaska App. 2005).
Anderson's second argument (his argument concerning his composite term of imprisonment) is premised on the Alaska Supreme Court's Neal-Mutschler rule: the rule that, before a sentencing judge imposes a composite sentence that exceeds the maximum term for the defendant's single most serious offense, the judge must find that the sentence is necessary to protect the public.
Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
In Vandergriff v. State, 125 P.3d 360, 363 (Alaska App. 2005), we held that Blakely does not apply to a judge's reasons for imposing consecutive sentences that total more than the maximum term for the defendant's single most serious offense under the Neal-Mutschler rule. Our decision in Vandergriff governs our resolution of Anderson's claim.
For these reasons, we reject all of Anderson's jury trial claims. We now turn to Anderson's remaining argument: that his sentence is excessive.
The facts of Anderson's crimes are described in our prior decision, Anderson v. State. In the early morning hours of July 19, 2001, Anderson broke into a residence where a couple were sleeping. Anderson pointed a handgun at the couple, ordered the woman to lie down on the floor, and then placed his gun against the man's head and demanded money. When the man did not immediately comply, Anderson shot him in the neck. The man then surrendered some $140 in cash, and Anderson fled the scene. 122 P.3d at 1111.
Anderson was convicted of first-degree burglary for breaking into the residence (a class B felony), first-degree robbery for taking the money at gunpoint (a class A felony), first-degree assault for wounding the man (another class A felony), third-degree assault for threatening the woman (a class C felony), and third-degree weapons misconduct for being a felon in possession of a concealable firearm (another class C felony). Id. at 1112, 1120.
Because Anderson was a third felony offender, he faced 15-year presumptive terms for the two class A felonies ( i.e., the robbery and the first-degree assault), a 6-year presumptive term for the burglary, and 3-year presumptive terms for the two class C felonies ( i.e., the third-degree assault and felon in possession). Id. at 1120.
Based on the three aggravators, Judge Card increased Anderson's two sentences for the class A felonies by adding 5 years of suspended imprisonment to the 15-year presumptive term. In other words, he imposed 20 years with 5 suspended for each of these offenses. Further, Judge Card made these sentences consecutive, for a composite total of 30 years to serve. And Judge Card imposed another consecutive 3 years to serve for the third-degree assault on the woman.
In addition, Anderson received additional jail time for the burglary and the weapons misconduct, but Judge Card imposed this imprisonment concurrently with Anderson's other sentences. Thus, Anderson received a composite 33 years to serve.
As we noted in our previous opinion in Anderson's case, at the time of his original sentencing, Anderson
ha[d] been engaged in criminal activity more or less continuously since 1992 (shortly after he turned eighteen). In the nine years between 1992 and his current offenses, there [was] scarcely . . . a six-month period (except for times when Anderson was in custody) when Anderson did not violate the law or the terms of his release or probation.
Anderson, 123 P.3d at 1120.
The author of the pre-sentence report in Anderson's case concluded that it was "extremely fortunate, even miraculous, that the victim [of Anderson's first-degree assault] survived this attack." The pre-sentence investigator further concluded, based on a review of Anderson's record, that Anderson's "long periods of incarceration have done little to deter his ongoing criminal behavior" — that Anderson's "participation in the instant offense[s] appears to be a manifestation of an irresponsible and criminal lifestyle which has been ongoing . . . and appears to be escalating." The pre-sentence investigator urged the superior court to "focus on [the sentencing goal of] isolation when fashioning [the] sentence in this case".
Judge Card's sentencing remarks show that he agreed with the pre-sentence investigator's conclusions. Based on Anderson's lengthy criminal history, as well as the facts of his current offenses, Judge Card concluded that Anderson was "a particularly dangerous offender" who was both undeterrable and incapable of rehabilitation. Id. The judge found that Anderson's criminal behavior was "compulsive" or "ingrained". Id.
When Anderson's case was returned to the superior court for re-sentencing, Judge Card issued a written explanation of his decision to re-impose a composite sentence of 33 years' imprisonment. The judge found that it was wholly fortuitous that Anderson's act of shooting the man had not resulted in a homicide. Judge Card also pointed out that Anderson shot the man even though the man had offered no resistance; Anderson was apparently angered by the fact that, in response to Anderson's demand for money, the man had offered to write Anderson a check. The judge declared that Anderson's violent response to this situation was "extraordinary".
Judge Card also again concluded, based on Anderson's uninterrupted criminal record, that Anderson could not be deterred or rehabilitated, and that, to protect the public, Anderson needed to be incarcerated for a longer period of time than the 20-year maximum penalty for either of his two most serious offenses (the class A felonies).
In analyzing Anderson's claim that his composite sentence is excessive, we begin by noting that Anderson (as a third felony offender) faced presumptive terms of 15 years' imprisonment for both the first-degree robbery and the first-degree assault. Because no mitigating factors were proved, these 15-year presumptive terms were the minimum sentences that Anderson could receive for these two offenses. Similarly, Anderson faced a minimum sentence of 3 years' imprisonment (the presumptive term) for his third-degree assault on the woman. Anderson's composite sentence of 33 years to serve is the result of Judge Card's decision to impose these three presumptive terms wholly consecutively.
See former AS 12.55.125(c)(4) (pre-March 2005 version).
See former AS 12.55.125(g) and former AS 12.55.155(a) (pre-March 2005 versions).
See former AS 12.55.125(e)(2) (pre-March 2005 version).
Anderson argues — and we agree — that the fact that a defendant has committed two or more separate offenses in a single criminal episode does not mean that the defendant should presumptively receive wholly consecutive sentences for each offense. Indeed, the supreme court's Neal-Mutschler rule is intended to prevent sentencing judges from imposing lengthy consecutive sentences without analysis and explanation.
But Judge Card did engage in the kind of analysis and explanation required by the Neal-Mutschler rule. Based on the gratuitous and potentially deadly violence that Anderson displayed in the present case, as well as Anderson's lengthy history of more or less continuous criminal behavior, Judge Card concluded that Anderson could not be rehabilitated, could not be deterred, and needed to be imprisoned for a long period of time if the public was to be protected.
It is true that Anderson's composite sentence of 33 years to serve is substantially greater than the 20-year maximum term that he faced for any single one of his offenses. But as we noted in Cleveland v. State, 91 P.3d 965, 982 (Alaska App. 2004), "[w]e have previously upheld atypically lengthy prison sentences for defendants who committed apparently inexplicable acts of extreme violence". In Cleveland, we declared that this principle was applicable to non-homicide cases (and we upheld a sentence that far exceeded the Neal-Mutschler ceiling). Id.
Here, the record supports Judge Card's findings — his characterization of Anderson's current offenses, his characterization of Anderson's criminal history, and his conclusions regarding the need for a lengthy prison term. Accordingly, we hold that Judge Card's sentencing decision is not clearly mistaken — and that, as a consequence, it must be affirmed.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
For all these reasons, the judgement of the superior court is AFFIRMED.