Opinion
Court of Appeals No. A-8816.
July 19, 2006.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge. Trial Court No. 3KN-03-1531 Cr.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink and Quinlan Steiner, Public Defenders, Anchorage, for the Appellant.
Terisia K. Chleborad, 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
Clyde J. McCurdy was convicted of third-degree assault for threatening his estranged son with a rifle. In this appeal, McCurdy contends that the evidence presented at his trial was not legally sufficient to support his assault conviction, and he further contends that no reasonable jury could have rejected his asserted defense of justification. (At trial, McCurdy argued that, if he did threaten his son with a rifle, it was only because he reasonably believed that his son was burglarizing his residence.)
It is true that there were considerable conflicts in the evidence presented at McCurdy's trial. In particular, there was a dispute as to whether McCurdy had picked up a rifle or whether he was holding some other object in his hands that only resembled a rifle. There was also a dispute as to whether McCurdy had pointed the rifle at his son or had otherwise threatened to harm him with the weapon. And there was evidence that McCurdy's son had come to McCurdy's house hoping to retrieve some household goods and take them back to a neighbor's home (where the son was staying).
But when we assess the legal sufficiency of the evidence, we are obliged to view the evidence in the light most favorable to upholding the jury's verdicts. Viewing the evidence in this light, reasonable jurors could conclude that the State had proved McCurdy's guilt beyond a reasonable doubt. Similarly, reasonable jurors could reject McCurdy's proposed defense of justification. We accordingly uphold McCurdy's conviction for third-degree assault.
See, e.g., Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003); Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).
McCurdy also contends that the sentencing procedures in his case violated his right to jury trial under the Sixth Amendment as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
McCurdy's offense, third-degree assault, is a class C felony. Because McCurdy had more than two prior felony convictions, he was a "third felony offender" for presumptive sentencing purposes, and he therefore faced a 3-year presumptive term of imprisonment.
AS 11.41.220(d).
Former AS 12.55.185(15); now renumbered as 185(16).
AS 12.55.125(e)(2) (pre-2005 version).
McCurdy conceded that the State could prove two aggravating factors under AS 12.55.155(c). McCurdy had been previously convicted in California of discharging a firearm at a dwelling, which would constitute second-degree weapons misconduct under AS 11.61.195(a)(3)(B). This offense is a class B felony. Thus, McCurdy conceded aggravator (c)(7) — i.e., that one of his prior felonies was of a more serious class than his current offense. Moreover, McCurdy had four prior convictions for misdemeanor assault. Thus, McCurdy conceded aggravator (c)(8) — i.e., that he had a criminal history of repeated assaultive behavior.
AS 11.61.195(b).
Based on these two aggravating factors (and weighing them against two mitigating factors that the State conceded), the superior court added 2 years of suspended imprisonment to McCurdy's sentence. That is, the superior court sentenced McCurdy to 5 years with 2 years suspended.
On appeal, McCurdy argues that, under Blakely, these two aggravating factors had to be submitted to a jury. Because McCurdy did not raise this objection at his sentencing hearing, he must now show plain error. Haag v. State, 117 P.3d 775, 783 (Alaska App. 2005).
There is no plain error here — indeed, there is no error at all — because the State's proof of aggravators (c)(7) and (c)(8) rested on McCurdy's prior criminal convictions. In Milligrock v. State, 118 P.3d 11 (Alaska App. 2005), we noted that
Blakely expressly exempts a defendant's prior convictions from the requirement of jury trial. That is, when a defendant's prior conviction is the fact that authorizes a sentencing judge to exceed an otherwise applicable sentencing limit, the sentencing judge can rely on that prior conviction despite the normal Blakely requirement of a jury trial.
Milligrock, 118 P.3d at 15.
In Milligrock, we held that it is proper for a sentencing judge to decide aggravator (c)(7) without submitting the issue to a jury (because this aggravator, by definition, hinges on a prior felony conviction). We further held that it is proper for a sentencing judge to decide aggravator (c)(8) without submitting the issue to a jury, so long as the State's proof of this aggravator rests on a defendant's prior convictions and the defendant does not dispute the existence of those convictions.
Milligrock, 118 P.3d at 15-16.
Id.
In the present case, the State relied on McCurdy's undisputed prior convictions to prove aggravators (c)(7) and (c)(8). This was not a violation of Blakely.
In his reply brief, McCurdy urges us to anticipate that the United States Supreme Court will abolish the Blakely exception for prior convictions. We recently rejected this same invitation in Tyler v. State, 133 P.3d 686, 689-690 (Alaska App. 2006). We stand by what we said in Tyler.
The judgement of the superior court is AFFIRMED.