Opinion
Court of Appeals No. A-10089.
January 14, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-98-6211 Cr.
Leslie A. Hiebert, Assistant Public Advocate, Appeals and Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, 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
James Donald Surrells appeals the superior court's decision to revoke his probation from a robbery conviction, and to impose a small portion of his previously suspended term of imprisonment. Surrells contends that the superior court's action violated his Sixth Amendment right to jury trial as construed in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
In 1999, Surrells was convicted of second-degree robbery, a class B felony. Because Surrells was a first felony offender, and because Alaska's pre-2005 sentencing law did not prescribe a presumptive term of imprisonment for first felony offenders convicted of class B felonies, Surrells's sentencing range was governed by two statutes: AS 12.55.125(d) and former AS 12.55.125(k)(2).
AS 11.41.510.
AS 12.55.125(d) declares that the sentencing range for class B felonies is 0 to 10 years' imprisonment. And former AS 12.55.125(k)(2) established a limitation on sentencing judges' authority to sentence first felony offenders within this 0- to 10-year range.
Under AS 12.55.125(k)(2), first felony offenders who were not subject to presumptive sentencing — i.e., first felony offenders convicted of a class B or class C felony — "[could] not be sentenced to a term of unsuspended imprisonment . . . exceed[ing] the presumptive term [specified] for a second felony offender convicted of the same crime" unless the sentencing judge found by clear and convincing evidence "that an aggravating factor [listed in] AS 12.55.155(c) [was] present, or that circumstances exist[ed] that would warrant a referral to the three-judge [sentencing] panel under AS 12.55.165."
In Cook v. State, 36 P.3d 710, 730 (Alaska App. 2001), and in State v. Gibbs, 105 P.3d 145, 148 (Alaska App. 2005), we held that AS 12.55.125 (k)(2) did not limit a first felony offender's total term of imprisonment. Rather, the statute limited only the "time to serve" component of a first felony offender's sentence (in the absence of aggravating factors or extraordinary circumstances). And in Dayton v. State, 120 P.3d 1073, 1079-1083 (Alaska App. 2005), we upheld the constitutionality of this statute, so construed.
At the time of Surrells's offense, the presumptive term for a second felony offender convicted of a class B felony was 4 years' imprisonment. Thus, under AS 12.55.125(k)(2), Surrells's total sentence (his unsuspended term of imprisonment plus his suspended term of imprisonment) could be as high as 10 years (the maximum penalty for class B felonies), but the unsuspended portion of Surrells's sentence — i.e., his "time to serve" — could not exceed 4 years unless the sentencing judge found one or more of the aggravating factors listed in AS 12.55.155(c), or unless the sentencing judge found extraordinary circumstances as defined in AS 12.55.165.
Former AS 12.55.125(d)(1) (pre-March 2005 version).
The superior court sentenced Surrells to 6 years' imprisonment with 4 years suspended — i.e., 2 years to serve. Surrells was placed on probation for 5 years following his release from prison.
In 2001, the superior court revoked Surrells's probation and imposed 2 years of the previously suspended jail time. After serving this additional jail time, Surrells had served a total of 4 years' imprisonment, and he had a remaining 2 years of suspended jail time.
In January 2005, the State again petitioned to revoke Surrells's probation. Three weeks later, Surrells filed a motion seeking a "correction" of his sentence, and asking the superior court to release him from custody and absolve him of all further probation. Surrells's argument was based on the Sixth Amendment right to jury trial as construed by the United States Supreme Court in Blakely v. Washington.
In Surrells v. State, 151 P.3d 483 (Alaska App. 2006), we rejected Surrells's Blakely argument.
First, we held that Surrells's original sentence did not violate Blakely because, under the pertinent sentencing statute ( i.e., former AS 12.55.125(k)(2)), the superior court's authority to impose that original sentence did not hinge on any findings of fact other than the jury's verdict. Surrells, 151 P.3d at 488-89. Next, we held that even though the superior court had later revoked Surrells's probation and imposed 2 years of the previously suspended jail time, the imposition of this previously suspended term of imprisonment did not trigger a right to jury trial under Blakely. Surrells, 151 P.3d at 490.
Finally, with respect to Surrells's potential violations of probation in the future, we held that "the superior court has complete statutory authority to revoke Surrells's probation again in the future, and to impose some or all of Surrells's remaining 2 years of suspended imprisonment, even in the absence of Blakely-compliant aggravating factors or extraordinary circumstances." Id.
The present appeal arises because Surrells's probation has now been revoked once more. In this most recent proceeding, the superior court found that Surrells had violated a condition of his probation, and then the court sentenced Surrells to time served. That is, the superior court imposed a small amount (approximately 1 month) of Surrells's remaining 2 years of suspended imprisonment — an amount equal to the time that Surrells spent in jail awaiting the resolution of the probation revocation proceedings.
In this appeal, Surrells argues that we were mistaken in our previous decision. He renews his arguments that, under former AS 12.55.125(k)(2), unless the State proves one or more aggravating factors in compliance with Blakely, the superior court has no authority to revoke a first felony offender's probation and impose previously suspended jail time in an amount that will make the offender's total time to serve equal or exceed the presumptive term for a second felony offender.
The State argues that Surrells is barred, as a legal matter, from pursuing these arguments. The State points out that Surrells raised these same issues in his previous appeal, and that we decided these issues against him. Thus, the State argues, the doctrines of collateral estoppel and the law of the case bar Surrells from raising these claims again.
Surrells responds that his current appeal stems from a separate, later judgement (the one issued by the superior court following the latest revocation of Surrells's probation). He argues that, because his current appeal stems from a new judgement, he is in the same position as any other probationer who might ask us to reconsider our decision in Surrells.
We need not resolve this procedural issue — because, even if we assume that Surrells is entitled to raise his Blakely arguments again, the doctrine of stare decisis directs us to uphold our prior decision unless we are convinced "that the decision was erroneous when it was decided and . . . that more good than harm will result from the departure [from precedent]." State v. Semancik, 99 P.3d 538, 540 (Alaska 2004) (internal quotation omitted).
The second prong of this test clearly favors Surrells — for if he is correct in his Blakely claim, then he and other first felony offenders in his circumstances are potentially being held in prison illegally. But Surrells has not convinced us that our prior legal analysis is clearly wrong; he has not satisfied the first prong of the test.
Having considered the arguments presented by Surrells in this appeal, we stand by our interpretation of the sentencing authority granted to superior court judges by former AS 12.55.125(k)(2), and our conclusion that the exercise of this sentencing authority does not trigger the Blakely right to jury trial.
The judgement of the superior court is AFFIRMED.