Opinion
Court of Appeals No. A-8900.
June 21, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge. Trial Court No. 4FA-99-201 Cr.
Marcia E. Holland, 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 David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In 1999, Michael John Ohler was convicted of felony driving while intoxicated (the offense now known as "driving while under the influence"), AS 28.35.030(a) and (n). This offense is a class C felony. Because Ohler was a second felony offender, he faced a 2-year presumptive term.
Former AS 12.55.125(e)(1) (pre-March 2005 version).
Under Alaska's sentencing laws at that time, Ohler's sentence could not exceed this 2-year presumptive term unless the State proved one or more aggravating factors by clear and convincing evidence at sentencing.
Former AS 12.55.155(a)(1) (authorizing a sentencing judge to exceed the presumptive term if aggravating factors were proved), and former AS 12.55.155(f) (specifying that aggravating factors were to be proved by clear and convincing evidence). These citations are to the pre-March 2005 versions of the statutes.
The State proposed several aggravating factors. The sentencing judge, Superior Court Judge pro tempore Jane F. Kauvar, made no express findings on any of the State's proposed aggravators. Nevertheless, she sentenced Ohler to a term of imprisonment greater than the presumptive term: 4 years with 1½ years suspended.
Ohler did not appeal this conviction and sentence. But in the summer of 2004, after the State filed its fourth petition to revoke Ohler's probation, and after the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Ohler filed a motion under Alaska Criminal Rule 35(a), claiming that his sentence was illegal.
Initially, Ohler's motion was premised on the assumption that Judge Kauvar had found one or more aggravating factors; Ohler argued that it was error, under Blakely, for the judge to decide these aggravating factors rather than submitting the factors to a jury. Later, after Ohler's attorney examined the sentencing hearing in more detail, Ohler amended his argument to include the further allegation that Judge Kauvar had violated Alaska sentencing law — by imposing a sentence that exceeded the applicable presumptive term without finding that the State had proved one or more aggravators.
Superior Court Judge Mark I. Wood was assigned to hear Ohler's Criminal Rule 35(a) motion. After examining Judge Kauvar's remarks at Ohler's sentencing hearing, Judge Wood concluded that Judge Kauvar had implicitly found aggravator AS 12.55.155(c)(21) — that Ohler had a history of repeated offenses similar in nature to his present offense (driving while intoxicated). Judge Wood further concluded that, because the factual basis of aggravator (c)(21) was Ohler's several prior convictions for driving while intoxicated, this aggravator did not have to be presented to a jury; rather, it fell within the Blakely exception for prior convictions.
In this appeal, Ohler argues that Judge Wood was wrong to conclude that Judge Kauvar implicitly found aggravator (c)(21). For the reasons we explain here, we conclude that Judge Wood's ruling was correct.
Ohler also renews his argument that, even if Judge Kauvar did find aggravator (c)(21), it was error, under Blakely, for Judge Kauvar to decide this aggravator herself rather than submitting the aggravator to a jury. But as we just explained, Judge Wood ruled that, under the facts of Ohler's case, aggravator (c)(21) fell within the "prior conviction" exception recognized in Blakely. This ruling provides an adequate basis for concluding that there was no Blakely error in Ohler's case — and Ohler's brief does not address Judge Wood's ruling.
Accordingly, we affirm Judge Wood's denial of Ohler's Rule 35(a) motion.
Why we affirm Judge Wood's ruling that Judge Kauvar implicitly found aggravator (c)(21)
At Ohler's sentencing, the State relied on three proposed aggravating factors under AS 12.55.155(c): (c)(8) — that Ohler had a history of aggravated or repeated instances of assaultive behavior; (c)(15) — that Ohler had three or more prior felony convictions; and (c)(21) — that Ohler had a history of repeated instances of criminal conduct similar in nature to his current offense, DWI.
During the parties' discussion of proposed aggravator (c)(15) (three or more prior felonies), Judge Kauvar attempted to clarify how many prior felonies the State was alleging. During the ensuing exchange, Ohler and his attorney conceded that Ohler had at least five prior convictions for driving while intoxicated and breath test refusal:
The Court: How many . . . prior felony convictions is the State now saying that [Ohler] has? I thought we were down to . . . one prior [felony].
Defense Attorney: Well, [the State alleged that] he had three or four [felonies]. We think there's only one, . . . [and] that's [why] we opposed [aggravator (c)(15)]. We refuted that [one].
The Court: Right. . . . But there's no [dispute] that he has anywhere from five to six prior DWIs?
Prosecutor: Yes, six prior DWIs.
Defense Attorney: I think he has . . . five or six DWIs [and breath test] refusals.
Ohler: Yes.
A little later in the hearing, Ohler's attorney conceded that Ohler had five prior DWIs. The defense attorney also acknowledged a sixth DWI charge, but he noted that this sixth charge had not resulted in a conviction.
Judge Kauvar never made any express findings regarding the State's three proposed aggravating factors. However, when Judge Kauvar explained her decision to impose a sentence greater than the 2-year presumptive term, she stated:
The Court: So the presumptive [term] is two years. . . . You would have [to serve] that [presumptive term] if this was your third [DWI] offense. You would serve two years presumptive if this was your third DWI, period. [But], in fact, . . . this is your sixth DWI. . . . I think that it is more aggravated to [have committed] your sixth DWI than your third. [And] I think that needs to be reflected in the sentence.
It is true that Judge Kauvar never expressly declared that the State had proved aggravator (c)(21). But based on the portions of the sentencing hearing that we have just quoted, we agree with Judge Wood's conclusions on this issue: Even though Judge Kauver may have failed to "say the magic words", she "clearly found" that Ohler had five prior convictions for driving while intoxicated — and, based on those five prior convictions, Judge Kauvar "found . . . aggravating factor [(c)(21)] and relied on it in fashioning [Ohler's] sentence."
It is true that Ohler's current offense ( i.e., his January 1999 DWI) was prosecuted as a felony rather than a misdemeanor because Ohler had been convicted of driving while intoxicated or breath test refusal on two separate occasions within the preceding five years — a DWI conviction from 1996, and a breath test refusal conviction from 1994. Because these two convictions were the predicate for making Ohler's current DWI a felony, the State could not rely on these two convictions as the basis for its proposed aggravator (c)(21).
At the time of Ohler's current offense (January 23, 1999), AS 28.35.030(n) declared that the offense of driving while intoxicated was a felony if the defendant had two or more prior convictions for DWI or breath test refusal within the preceding five years. Since then, the Alaska Legislature has increased the "look back" period to ten years. See SLA 2001, ch. 63, § 10.
Under AS 12.55.155(e), a sentencing court can not use an aggravating factor to enhance the defendant's presumptive term of imprisonment if that aggravating factor is a necessary element of the defendant's current offense. In a prosecution for felony DUI, this means that aggravator (c)(21) should not be based on the two requisite prior convictions that make the defendant's current offense a felony. Compare Foley v. State, 9 P.3d 1038, 1041 (Alaska App. 2000), where we held that the fact that a felony DWI defendant has the required two prior convictions should not be used when assessing whether the defendant is a "worst offender".
But, as explained above, Ohler and his attorney conceded that Ohler had five prior convictions for DWI. The State relied on only one of these convictions — the 1996 DWI conviction — as a predicate for Ohler's current felony charge. (The other predicate conviction was not a DWI conviction; rather, it was Ohler's 1994 conviction for breath test refusal.)
Thus, Ohler's record included four prior convictions for DWI that could properly be used to establish aggravator (c)(21) (history of repeated similar offenses).
Although Ohler does not dispute his trial attorney's concession that he had five prior convictions for DWI at the time of his sentencing hearing in this case (September 1999), it appears that Ohler's trial attorney may have misspoken. Based on the information in the pre-sentence report, as supplemented by the post-sentencing investigation into Ohler's criminal record, it appears that Ohler had only four prior convictions for DWI: one from 1996, one from 1985, one from 1983, and one from 1982. (In addition, as we noted in the main text, Ohler had a prior conviction for breath test refusal from 1994.) This does not change our analysis.
Why we affirm Judge Wood's ruling that there was no Blakely violation even though Judge Kauvar failed to submit aggravator (c)(21) to a jury
The United States Supreme Court's decision in Blakely v. Washington stands for the proposition that when a defendant's maximum authorized sentence hinges on a disputed issue of fact, the defendant normally has a right to a jury trial on that issue, and a right to demand that the government prove the issue beyond a reasonable doubt.
Greist v. State, 121 P.3d 811, 812 (Alaska App. 2005).
As this Court recognized in Haag v. State, 117 P.3d 775 (Alaska App. 2005), Alaska's pre-2005 presumptive sentencing laws are directly affected by the Blakely decision. Under those former sentencing statutes, a judge was not authorized to exceed the applicable presumptive term of imprisonment (not even by adding suspended jail time) unless the State proved one or more aggravating factors under AS 12.55.155(c) or extraordinary circumstances under AS 12.55.165. The Blakely problem arises from the fact that those former statutes specified that these aggravating factors and extraordinary circumstances were to be proved to the sentencing judge ( i.e., not a jury) by clear and convincing evidence ( i.e., not beyond a reasonable doubt). Haag, 117 P.3d at 782-83.
However, Blakely recognizes an exception for aggravating factors based on a defendant's prior convictions; these need not be presented to a jury. In Grohs v. State, 118 P.3d 1080 (Alaska App. 2005), this Court held that, because of the Blakely exception for prior convictions, a sentencing judge can properly find aggravator (c)(21) (repeated instances of similar criminal conduct) without submitting the question to a jury, if the State's proof of this aggravator "rests wholly on the defendant's undisputed prior convictions". Grohs, 118 P.3d at 1083-84.
Blakely, 542 U.S. at 301-02, 124 S.Ct. at 2536-37. See also United States v. Booker, 543 U.S. 220, ___; 125 S.Ct. 738, 756; 160 L.Ed.2d 621 (2005).
In Ohler's case, Judge Wood ruled that Ohler could not claim the benefit of the Blakely decision because Ohler's conviction was final before Blakely was decided. (The date of the Blakely decision was June 24, 2004.)
However, Judge Wood ruled in the alternative that even if Ohler was entitled to claim the benefit of Blakely, there was no Blakely violation in Ohler's case. Judge Wood concluded that Judge Kauvar could decide aggravator (c)(21) herself, without submitting the issue to a jury, because the State's proof of aggravator (c)(21) was based on Ohler's prior convictions for DWI.
In his brief to this Court, Ohler argues that Judge Wood was wrong, and that Judge Kauvar violated Blakely. But Ohler's argument is addressed solely to the issue of whether the Blakely rule applies retroactively to defendants like Ohler, whose conviction was final before Blakely was decided. Ohler does not address Judge Wood's alternative ruling — the judge's conclusion that Blakely was not violated in Ohler's case because the State's proof of aggravator (c)(21) fell within the Blakely exception for prior convictions.
Because this alternative ruling is an independent and sufficient basis for upholding Judge Wood's ultimate decision that there was no Blakely violation, and because Ohler does not attack this ruling, we uphold Judge Wood's decision.
See Munn v. Thornton, 956 P.2d 1213, 1221 n. 11 (Alaska 1998) (declining to consider the merits of the appellants' argument, in part because the appellants "failed to address the [trial] court's findings and conclusion [of law]". See also Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997) (rejecting an appellant's claim of error because the appellant "completely neglect[ed] to mention [the trial judge's] findings of fact" on the issue).
Conclusion
The judgement of the superior court is AFFIRMED.