Opinion
Court of Appeals No. A-10008.
November 26, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge, pro tem, Trial Court Nos. 4FA-06-02074 CI 4FA-99-00201 CR.
Michael J. Ohler, pro se, Fairbanks, 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 Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Michael J. Ohler was convicted of felony driving while intoxicated, a class C felony, in 1999. Ohler was a second felony offender and faced a 2-year presumptive term. Under Alaska's former sentencing laws, the sentencing court could not exceed this 2-year presumptive term unless the State proved one or more aggravating factors by clear and convincing evidence. The State proposed three aggravating factors. Although the sentencing judge, Superior Court Judge pro tempore Jane F. Kauvar, made no explicit findings on any of the State's proposed aggravating factors, she sentenced Ohler to 4 years with 18 months suspended.
Ohler v. State, Alaska App. Memorandum Opinion and Judgment No. 5081 (June 21, 2006), 2006 WL 1720076.
Former AS 12.55.125(e)(1) (1998).
Former AS 12.55.155(a)(1) (1998); former AS 12.55.155(f) (1998).
Ohler, Memorandum Opinion and Judgment No. 5081 at 3, 2006 WL 1720076 at *1.
In 2004, Ohler filed a motion under Alaska Criminal Rule 35(a) contending that his sentence was illegal. Ohler claimed that Judge Kauvar violated Alaska sentencing law by imposing a sentence greater than the presumptive term without finding that the State had proven any aggravating factors. In the event Judge Kauvar had found aggravating factors, Ohler argued that, under Blakely v. Washington, Judge Kauvar erred in deciding the aggravating factors herself rather than submitting them to a jury.
Id. at 2, 2006 WL 1720076 at *1.
Id.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Ohler, Memorandum Opinion and Judgment No. 5081 at 3, 2006 WL 1720076 at *1.
Superior Court Judge Mark I. Wood concluded that Judge Kauvar had implicitly found the aggravating factor that Ohler had a history of offenses which were similar in nature to his present offense of driving while intoxicated. Judge Wood also concluded that, because the aggravating factor was based upon Ohler's prior convictions for driving while intoxicated, it fell within the Blakely exception for prior convictions and did not have to be presented to a jury.
Id.; former AS 12.55.155(c)(21) (1998).
Ohler, Memorandum Opinion and Judgment No. 5081 at 3, 2006 WL 1720076 at *1; see Blakely, 542 U.S. at 301-02, 124 S. Ct. at 2536-37.
Ohler appealed, and we upheld Judge Wood's finding that Judge Kauvar had implicitly found the aggravating factor. We also upheld his ruling that the aggravator fell within the Blakely prior-conviction exception.
Ohler, Memorandum Opinion and Judgment No. 5081 at 3, 2006 WL 1720076 at *1.
Id.
Following our decision, Ohler filed an application for post-conviction relief, arguing that Judge Kauvar erred in using his prior convictions for driving while intoxicated from 1982, 1983, and 1985 to find the aggravating factor under AS 12.55.155(c)(21). Ohler relied on State v. Stafford. Judge Kauvar concluded that Stafford was not on point because she had not used Ohler's prior convictions for driving while intoxicated to raise the minimum sentence. Rather, she had used the prior convictions to find the aggravating factor.
129 P.3d 927 (Alaska App. 2006).
In Stafford, we considered the provisions of AS 28.35.030 that require courts to impose an increasing series of mandatory minimum terms of imprisonment for DUI, based on the number of prior convictions the defendant has for DUI or breath-test refusal. We held that the current version of this statute applies to all defendants sentenced on or after June 30, 2004, the date the current version took effect, regardless of when the defendant's underlying offense was committed.
Id. at 927-28; AS 28.35.030(b)(1)(A)-AS 28.35.030(b)(1)(F); AS 28.35.030(t)(4).
Stafford, 129 P.3d at 928, 933.
But our decision in Stafford did not affect a sentencing court's authority to consider a defendant's prior convictions for purposes other than determining the applicable mandatory minimum sentence. Stafford does not apply to Ohler's case because the issue before Judge Kauvar was not the applicable mandatory minimum sentence. Rather, the issue was whether the State had proved the aggravating factor under AS 12.55.155(c)(21) (prior history of similar offenses), thus authorizing the court to impose a sentence above the applicable 2-year presumptive term. (We explained the difference between a presumptive term of imprisonment and a mandatory minimum term of imprisonment in Clark v. State.)
8 P.3d 1149 (Alaska App. 2000).
Judge Kauvar was therefore correct when she ruled that Stafford did not bar her from considering Ohler's prior convictions for the purpose of deciding whether the State had proved the aggravator under AS 12.55.155 (c)(21). We have previously upheld Judge Kauvar's finding of this aggravator and her use of this aggravator to enhance Ohler's presumptive term.
See Ohler, Memorandum Opinion and Judgment No. 5081 at 6-8, 2006 WL 1720076 at *3-4.
The judgment of the superior court is AFFIRMED.