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recognizing that where the defendant pleaded guilty to a lesser offense, but conceded that his conduct nonetheless constituted a higher degree of offense, the "most serious" aggravator applied as a matter of law
Summary of this case from Walunga v. StateOpinion
Court of Appeals No. A-8961.
October 19, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Trial Court No. 3AN-00-9340 Cr.
David D. Reineke, 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 David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In the present case, Claude J. Joseph was indicted for third-degree controlled substance misconduct (possession of cocaine with intent to distribute). He ultimately reached a plea agreement with the State: the State reduced the charge to fourth-degree controlled substance misconduct (simple possession of cocaine), but Joseph conceded, for purposes of sentencing, the conduct alleged in the original charging document. For the crime of fourth-degree controlled substance misconduct, Joseph was sentenced to 4 years' imprisonment with 2 years suspended ( i.e., 2 years to serve).
After serving his prison sentence, Joseph was released on probation. But on May 16, 2003, Joseph was arrested for a new crime: third-degree controlled substance misconduct (possession of cocaine with intent to distribute). See Superior Court File No. 3AN-03-5040 Cr. Joseph was ultimately convicted of this new crime and, based on his conviction, the superior court revoked Joseph's probation in the present case.
While Joseph was awaiting his disposition hearing in the probation revocation proceedings, he filed a motion under Alaska Criminal Rule 35(a), alleging that his original sentence had been illegal. Specifically, Joseph argued that his sentence had been imposed in violation of 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). The superior court denied Joseph's motion, and Joseph now appeals the superior court's decision.
Joseph also filed a separate appeal of his 2003 conviction for third-degree controlled substance misconduct, alleging that the cocaine was the fruit of an unlawful investigative stop. We recently agreed with Joseph that the investigative stop was unlawful and that the cocaine should be suppressed; in other words, we have reversed the criminal conviction that was the superior court's basis for revoking Joseph's probation in the present case. See Joseph v. State, ___ P.3d ___, Alaska App. Opinion No. 2067 (October 13, 2006).
However, barring unusual circumstances, our suppression of the cocaine in Joseph's 2003 case will not affect the superior court's revocation of Joseph's probation in the present case. See Waring v. State, 670 P.2d 357, 361 (Alaska 1983), and State v. Sears, 553 P.2d 907, 912-13 (Alaska 1976), holding that the exclusionary rule ( i.e., the rule barring the State from relying on illegally seized evidence) does not normally apply to probation revocation proceedings. Thus, we will resolve Joseph's Blakely claim.
Joseph's offense in the present case, fourth-degree controlled substance misconduct, is a class C felony. Because Joseph had one previous felony conviction, he faced a 2-year presumptive term of imprisonment under the pre-March 2005 version of Alaska's presumptive sentencing law.
AS 11.71.040(d).
AS 12.55.125(e)(1) (pre-March 2005 version).
The State proposed two aggravating factors under AS 12.55.155(c): (c)(10) — that Joseph's conduct was among the most serious within the definition of the offense; and (c)(19) — that Joseph was adjudicated a delinquent minor for conduct that would have been a felony had he been an adult. At Joseph's sentencing hearing, his attorney expressly conceded aggravator (c)(10) and did not oppose aggravator (c)(19). The superior court found that both aggravators were proved.
By virtue of these aggravators, the superior court was authorized to sentence Joseph to any term of imprisonment up to the 5-year maximum for class C felonies. Based on this authority, the superior court added 2 years of suspended imprisonment to the 2-year presumptive term. Thus, Joseph received the sentence we described earlier: 4 years' imprisonment with 2 years suspended.
AS 12.55.155(a)(1); AS 12.55.125(e).
Joseph now asserts that the superior court violated his right to jury trial under Blakely by not submitting aggravators (c)(10) and (c)(19) to a jury, and by not requiring the State to prove these aggravators beyond a reasonable doubt.
Even if we assume that Blakely applies to Joseph's case, there was no Blakely error with respect to aggravator (c)(19) (prior juvenile delinquency adjudication for felony conduct). In Greist v. State, 121 P.3d 811, 814-15 (Alaska App. 2005), we held that an Alaska adjudication of delinquency falls within the Blakely exception for prior convictions — because, under Alaska law, youths accused of delinquency are entitled to a jury trial and to proof beyond a reasonable doubt.
Joseph did not contest the existence of his delinquency adjudication, nor did he contest the fact that he was adjudicated a delinquent for conduct that would have been a felony if he had been older. This being so, the superior court did not have to submit aggravator (c)(19) to a jury.
We recently held in Cleveland v. State, __ P.3d __, Alaska App. Opinion No. 2060 (August 25, 2006), 2006 WL 2458578, that, under the pre-2005 version of Alaska's presumptive sentencing law, the proof of a single aggravator was sufficient to satisfy Blakely. Because there was no Blakely error with respect to aggravator (c)(19), any potential error with respect to aggravator (c)(10) would be moot.
However, we conclude that there was no Blakely error with respect to aggravator (c)(10) (conduct among the most serious). In Benboe v. State, 698 P.2d 1230, 1231 n. 2 (Alaska App. 1985), this Court held that aggravator (c)(10) is proved when, as a factual matter, the defendant's conduct constitutes a higher degree of the same crime.
As we explained at the beginning of this opinion, Joseph was originally charged with third-degree controlled substance misconduct (possessing cocaine with intent to distribute it), but he was allowed to plead no contest to the lesser offense of fourth-degree controlled substance misconduct (simple possession of cocaine). At Joseph's sentencing hearing, his attorney expressly conceded that the State could prove aggravator (c)(10) because Joseph's case was a " Benboe type [of case]". Here is the pertinent part of the sentencing hearing:
The Court: Was there any stipulation regarding [the fact that] the misconduct . . . was really . . . most serious . . .?
Prosecutor: There [were] aggravators filed, Your Honor. We filed "most serious" and we filed "youthful felony".
Defense Attorney: Yes. The "most serious" [aggravator], of course, is [present] because it was . . .
The Court: Just a minute, please.
Defense Attorney: Okay.
. . .
The Court: . . . Sometimes [there is a] stipulation on [these aggravating factors], that's why I wondered. Clearly, [this] is a Benboe-type [situation].
Defense Attorney: Yes.
The Court: You're not opposing that one?
Defense Attorney: No.
Joseph argues conclusorily that, despite his express concession of the factual basis for aggravator (c)(10), this aggravator nevertheless should have been submitted to the jury — that it was up to a jury to decide whether Joseph's conduct was "among the most serious" within the definition of his offense (possession of cocaine). We disagree. Once Joseph conceded that, as a factual matter, he possessed the cocaine with intent to distribute it, the only remaining issue was the issue of law that we decided in Benboe. Benboe holds that aggravator (c)(10) is established whenever the defendant is factually guilty of a higher degree of the same offense.
Blakely does not require issues of law to be decided by a jury. Rather, Blakely holds that a defendant has a right to jury trial with respect to issues of fact that will alter the defendant's potential maximum sentence. Given Joseph's concession of the operative facts as part of his plea agreement, no jury issue remained.
In Joseph's reply brief, he argues that he should not be bound by his attorney's concession of aggravator (c)(10) because this concession was not accompanied by all of the procedural protections that the law normally demands when a criminal defendant waives the right to jury trial. Because this argument is raised for the first time in Joseph's reply brief, it is waived.
See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982).
We AFFIRM the superior court's denial of Joseph's motion for correction of his sentence.