Opinion
Court of Appeals No. A-9521.
August 15, 2007.
Appeal from the Superior Court, Third Judicial District, Kenai, Dan H ensley, Anchorage, and Charles Huguelet, Kenai, Judges, Trial Court No. 3KN-00-1571 CR.
Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, 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 Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Sheila Blizzard was convicted of felony failure to appear after she did not appear at a hearing on felony forgery charges. Felony failure to appear is an unclassified felony with a maximum sentence of 5 years of imprisonment. In June of 2001, Blizzard was sentenced to 48 months' imprisonment with 47 months suspended. She was placed on probation for a period of 3 years. After Blizzard committed numerous probation violations, Superior Court Judge Dan Hensley imposed the balance of the time remaining on Blizzard's sentence, bringing her total time to serve to 48 months. Blizzard did not appeal this sentence.
AS 12.30.060(1).
One year later, in October of 2005, Blizzard filed a motion under Criminal Rule 35(a) to correct an illegal sentence. Blizzard argued that, by analogy, felony failure to appear was similar to a class C felony under the pre-March 2005 sentencing code. Under the former code, a class C felony had a maximum term of imprisonment of 5 years, the same maximum term as felony failure to appear. There was no presumptive term for a first felony offender. A second felony offender faced a presumptive term of 2 years of imprisonment. Blizzard points to former AS 12.55.125(k), which provided that first felony offenders convicted of class B or class C felonies "[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 [exceptional] circumstances exist[ed]." Blizzard was a first felony offender. She points out that the superior court did not find any aggravating factors or exceptional circumstances. She argues that, under Blakely v. Washington, the superior court could not impose a sentence greater than 2 years of imprisonment without proving an aggravating factor or extraordinary circumstances to a jury beyond a reasonable doubt.
Former AS 12.55.125(e).
Former AS 12.55.125(e)(1).
Surrells v. State, 151 P.3d 483, 485 (Alaska App. 2006) (quoting Former AS 12.55.125(k)(2)).
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
In Blakely, the United States Supreme Court held that, except for a defendant's prior convictions, any disputed fact other than facts reflected by the jury verdict or admitted by the defendant which increased the maximum term of imprisonment that a judge could lawfully impose had to be proved to a jury beyond a reasonable doubt. But failure to appear is an unclassified felony with a maximum term of 5 years of imprisonment. Presumptive sentencing and AS 12.55.125(k) do not apply to an unclassified offense such as felony failure to appear. Therefore, Blizzard's plea of no contest to that offense authorized the superior court to sentence Blizzard to up to 5 years of imprisonment. Because Blizzard's sentence did not exceed 5 years of imprisonment, there was no violation of Blakely. Of course, under state law, Blizzard's sentence was subject to the sentencing guidelines. But Blakely does not apply to a sentencing judge's decision to impose a sentence which exceeds those guidelines.
See Hayes v. State, 790 P.2d 713, 717 (Alaska App. 1990) (noting that presumptive sentencing does not apply to unclassified felonies, but approving that judge's choice to analogize sentence to class C felony).
Carlson v. State, 128 P.3d 197, 204-05 (Alaska App. 2006) (holding that Blakely does not apply to the Page sentencing guidelines for second-degree murder, and allowing a sentence of 40 years to serve) (citing Page v. State, 657 P.2d 850, 854-55 (Alaska App. 1983)).
In addition, as Blizzard recognizes, even if former AS 12.55.125(k) did apply to felony failure to appear, the superior court would not have violated Blakely. In Surrells v. State, we held that the Blakely right to a jury trial did not apply to findings that a judge was obligated to make in revoking the probation of a first felony offender convicted of a class B or C felony under the pre-March 2005 sentencing code. Blizzard asks us to reconsider the Surrells decision. We decline to do so.
151 P.3d 483 (Alaska App. 2006).
Id., at 494-95.
The judgment of the superior court dismissing Blizzard's Criminal Rule 35(a) motion is AFFIRMED.