Opinion
Court of Appeals No. A-8924.
October 5, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Trial Court No. 4FA-S02-366 CR.
James H. Cannon, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Kerri A. DeRushe of third-degree misconduct involving a controlled substance, a class B felony. DeRushe had two prior felony convictions, and the superior court imposed the applicable 6-year presumptive term. In this appeal, DeRushe argues that the superior court improperly rejected a proposed mitigating factor, failed to give adequate weight to a mitigating factor it did find, and violated her Sixth Amendment right to a jury trial under Blakely v. Washington. We find no error in the superior court's consideration of the mitigating factors. Although the superior court incorrectly interpreted the import of the Blakely decision, we conclude that the error was harmless. Accordingly, we affirm DeRushe's sentence.
AS 11.71.030(a) (c).
AS 12.55.125(d)(2).
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Background facts and proceedings
On January 9, 2002, DeRushe agreed to meet an undercover police officer at the Frontier Lodge to sell him cocaine. DeRushe escorted the officer from the parking lot to a hotel room where DeRushe arranged for the officer to buy 0.9 grams of cocaine. In return for her efforts in arranging the sale, DeRushe removed a couple of small rocks of the cocaine and shared them with two of her friends who were in the room.
After DeRushe was convicted, the State proposed two statutory aggravating factors from AS 12.55.155: (c)(20) (that DeRushe was on parole for another felony conviction at the time she committed the offense) and (c)(21) (that DeRushe had a criminal history of repeated instances of illegal conduct similar in nature to the present offense).
For her part, DeRushe contended that two statutory mitigating factors from AS 12.55.155 applied: (d)(14) (DeRushe's offense involved small quantities of a controlled substance) and (d)(15) (DeRushe distributed a controlled substance to a personal acquaintance for no profit).
At a hearing before sentencing, DeRushe conceded that the State's proposed aggravating factors applied. Shortly thereafter, the Supreme Court decided Blakely. Superior Court Judge Charles R. Pengilly allowed DeRushe to withdraw her concessions. But Judge Pengilly ruled that Blakely did not apply to DeRushe's sentence; he reasoned that Blakely would apply only prospectively to those cases in which guilt was yet to be adjudicated.
Judge Pengilly found that both aggravating factors were proven. He also found that mitigating factor (d)(14) was proven. But Judge Pengilly rejected mitigator (d)(15) because he found that DeRushe profited from the transaction by receiving a small amount of cocaine in kind. Judge Pengilly imposed the presumptive term of 6 years because he concluded that the two aggravating factors balanced the mitigating factor.
Discussion The superior court properly rejected the not-for-profit mitigator
DeRushe argues that the superior court should have found mitigator (d)(15) — that DeRushe had distributed a controlled substance to a personal acquaintance nineteen years old or older for no profit. DeRushe contended that the undercover police officer was a personal acquaintance of DeRushe because he had twice bought drugs from DeRushe's mother and the two had met and conversed at one of those two transactions. But Judge Pengilly rejected the mitigating factor because he felt that when DeRushe retained a small amount of cocaine from the amount purchased by the undercover police officer, she received a profit.
In DeRushe's response to the State's sentencing memorandum, DeRushe described her role in the drug buy:
[DeRushe's] role was that she facilitated a transaction by taking money from [an undercover officer], going down the hall[,] buying a small amount of cocaine from a third party for which she got, as is the custom in the drug culture, to use a small portion to satisfy her own addiction. [DeRushe] was not the person who drove the transaction . . . it was [the undercover officer] who asked her to do it[.]
The pre-sentence report states that the undercover police officer saw DeRushe "remove a couple small rocks of the cocaine from the plastic bag for herself and everyone else in the room." The pre-sentence report also states that other people in the room smoked the cocaine, but that the undercover police officer could not recall whether DeRushe smoked the cocaine during that time.
DeRushe argues that she did not receive a profit because: (1) she was acting on behalf of the buyer in the transaction, rather than the seller; (2) "profit" should be interpreted as receiving money or property in exchange for drugs; and (3) it is customary for a middleman to retain a small amount of drugs for personal use.
The legislature used the word "profit" in AS 12.55.155(d)(15) but did not separately define the term. When the legislature uses a word or phrase without defining the word, we normally assume that the legislature intended the word or phrase to have its common, ordinary meaning. The common and ordinary meaning of "profit," as defined in the dictionary, is "advantage; gain; benefit." Under this definition of "profit," Judge Pengilly could reasonably find that DeRushe had not met her burden of showing that she received no profit in the transaction. DeRushe's sentencing memorandum admitted that she obtained a portion of the sale for her own use.
See AS 01.10.040; Lynch v. McCann, 478 P.2d 835, 837 (Alaska 1970); Lambert v. State, 694 P.2d 791, 793 (Alaska App. 1985).
Webster's New World College Dictionary 1146 (4th ed. 2001).
The Blakely claim
When DeRushe argued that Blakely applied to the aggravating factors, Judge Pengilly ruled that Blakely did not apply to DeRushe's case. He ruled that the decision would apply only to "cases in which guilt is adjudicated after its effective date." On appeal, DeRushe argues that Judge Pengilly erred by ruling that Blakely did not apply to her sentencing. The State concedes error. We accept the concession. Federal law governs the scope of the retroactivity of constitutional decisions of the Supreme Court. Under federal law "a new rule for the conduct of criminal prosecutions [applies] retroactively to all cases, state or federal, pending on direct review or not yet final." Because DeRushe's conviction was not final, Blakely applies to her case.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court must independently assess the State's concession of error in a criminal case).
Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 177, 110 S.Ct. 2323, 2330, 110 L.Ed.2d 148 (1990).
Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).
But even though it was error for Judge Pengilly to rule that Blakely did not apply to DeRushe's case, we conclude that the error was harmless. In United States v. Booker, the Supreme Court announced that harmless error review applies to Sixth Amendment claims under Blakely. To determine whether a Blakely error was harmless, we consider whether the facts supporting an aggravating factor were disputed and, if so, whether there is a reasonable possibility that a jury would have found in DeRushe's favor.
___ U.S. ___, 125 S.Ct. 738 (2005).
See Booker, ___ U.S. at ___, 125 S.Ct. at 769; see also Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005) (ruling that a Blakely violation was harmless error when Milligrock did not dispute evidence supporting the aggravator and when there was no reasonable possibility a jury would have found in Milligrock's favor on the issue).
See Milligrock, 118 P.3d at 16-17.
The evidence was undisputed that DeRushe was on parole for another felony conviction at the time she committed the present offense. Probation Officer Sandra Deaton stated in DeRushe's pre-sentence report that DeRushe was on parole for her previous third-degree misconduct involving a controlled substance conviction. DeRushe did not contest this portion of the pre-sentence report or present evidence to the contrary at sentencing, nor does she present any argument on appeal that there is any evidence to the contrary. We conclude there is no reasonable possibility that a jury would have found in DeRushe's favor on aggravating factor (c)(20).
Regarding aggravator (c)(21), the record is clear that DeRushe had repeated convictions for illegal conduct similar in nature to this offense. The pre-sentence report shows that DeRushe was sentenced for third-degree misconduct involving a controlled substance in 1999 and fourth-degree misconduct involving a controlled substance in 1994. Both of these convictions involved cocaine, the same drug at issue in this case. And the record shows that DeRushe did not offer any evidence to contest that she had a history of similar criminal conduct, nor did she argue that the record did not establish the aggravator. We conclude that there is no reasonable possibility that a jury would have found in DeRushe's favor on this aggravator. Thus, we conclude that the superior court's error was harmless.
The court gave adequate weight to mitigator (d)(14)
The State conceded that mitigating factor (d)(14) applied and Judge Pengilly found that factor. During the sentencing hearing, DeRushe asked what significance the mitigating factor had in the court's sentencing decision. Judge Pengilly responded: "There are two aggravating factors, which I think are probably every bit as significant and, perhaps, more so than the one mitigating factor you were able to prove."
DeRushe contends that Judge Pengilly did not adequately explain his decision not to rely on (d)(14) to mitigate the presumptive term. But Judge Pengilly's sentencing comments reflect his concern that DeRushe had abused controlled substances for more than a decade, had tried at times to avoid responsibility for her conduct, and, because she had not done well on probation ("probation, by and large, has failed"), he found that probation was not an appropriate option. Under the circumstances, Judge Pengilly concluded that an aggravated term was excessive, but the presumptive term was indicated because he did not see anything to be gained by probation.
We conclude that Judge Pengilly gave sufficient explanation of his view of DeRushe's circumstances and gave appropriate consideration to the mitigating factor.
Conclusion
DeRushe's sentence is AFFIRMED.