Opinion
Court of Appeals No. A-9522.
July 25, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-03-912 CR.
Brian T. Duffy, Assistant Public Advocate, and Joshua Fink, 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 Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Noel L. Roussel of two counts of fourth-degree misconduct involving a controlled substance and four counts of attempted fourth-degree misconduct involving a controlled substance. At Roussel's original sentencing, Superior Court Judge Larry D. Card found several aggravating factors that Roussel conceded. In his oral sentencing remarks, Judge Card imposed a composite 5-year term with 3 years suspended. Soon thereafter, Judge Card concluded that Roussel's original sentence violated Blakely v. Washington, and thus granted Roussel's motion to correct an illegal sentence and scheduled a resentencing. In the written judgment, Judge Card sentenced Roussel to a composite term of 5 years with 2 years suspended. Roussel challenges his sentence on two grounds: that Judge Card's written judgment improperly increased his sentence after it was meaningfully imposed, and that his sentence violates Blakely.
AS 11.71.040.
AS 11.31.100 and AS 11.71.040.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
We conclude that Roussel's sentence did not violate Blakely, because at least one of the aggravating factors found by Judge Card was Blakely-compliant. Furthermore, Judge Card could have imposed the same sentence without relying on aggravating factors at all.
Even so, Roussel's sentence was improperly increased after it was meaningfully imposed, a violation of the protection against double jeopardy. Accordingly, we remand the case to the superior court with direction to amend the judgment to a composite term of 5 years with 3 years suspended. Background facts and proceedings
In February 2003, the grand jury indicted Noel Roussel on four counts of fourth-degree misconduct involving a controlled substance and four counts of attempted fourth-degree misconduct involving a controlled substance. The charges were based on Roussel's possession of the controlled substances Xanax and OxyContin, as well as his theft of prescription forms from a doctor's office, forgery of the doctor's signature, and presentation of the forged prescription forms to pharmacies on two separate occasions.
At trial, two of the fourth-degree misconduct involving a controlled substance charges were dismissed. Roussel was found guilty on all the remaining counts — two counts of fourth-degree misconduct involving a controlled substance and four counts of attempted fourth-degree misconduct involving a controlled substance. We affirmed Roussel's convictions in Roussel v. State.
115 P.3d 581 (Alaska App. 2005).
Roussel was a second felony offender; he had been convicted previously of attempted second-degree sexual abuse of a minor. Roussel's felony convictions in this case were class C felonies. As a second felony offender, Roussel faced a presumptive 2-year term for each felony conviction. The State alleged three aggravating factors under AS 12.55.155(c): (c)(8) (Roussel's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior, based on Roussel's prior convictions for attempted second-degree sexual abuse of a minor and misdemeanor assaults); (c)(12) (Roussel was on bail release for another felony charge when he committed the current offense); and (c)(21) (Roussel has a criminal history of repeated instances of conduct similar in nature to the current offense, based on Roussel's two prior convictions for attempted fourth-degree misconduct involving a controlled substance and evidence presented at trial relating to the two felony misconduct involving a controlled substance charges that were dismissed).
AS 11.31.100 and AS 11.41.436(a)(1).
AS 11.71.040(d).
Former AS 12.55.125(e) (pre-March 2005 version).
At the original sentencing, Roussel expressly conceded all three aggravating factors, and Judge Card accepted all three. Roussel argued that the time imposed in this case should be imposed concurrently with the sentence he had already received for check forgery offenses in another case. Roussel contended that the offenses were all related because they all involved attempts to obtain prescription pain medications.
Judge Card sentenced Roussel to concurrent terms of 4 years with 2 years suspended for each of the fourth-degree misconduct involving a controlled substance charges. For each of the misdemeanor attempted fourth-degree misconduct involving a controlled substance charges, Judge Card sentenced Roussel to 1 year, running concurrent with each other and consecutive to the sentence for the two counts of fourth-degree misconduct involving a controlled substance. Judge Card also ran 1 year of the time imposed in this case concurrent with the time imposed in the check forgery case.
Judge Card described the composite term as follows: "That means that there's a total of 5 years, or 3 years suspended, 2 years to serve presumptive." The prosecutor requested clarification, and Judge Card again repeated this same description of the composite sentence. Shortly thereafter, Roussel requested clarification on the composite 1 year imposed for the four misdemeanors, and Judge Card stated "that is suspended," and repeated the composite term. Judge Card also explained that he did not want the composite term to exceed the maximum sentence for each felony charge, which was why he crafted the composite term of 5 years.
But in the written judgment, the 1 year imposed for the four misdemeanor counts was not listed as suspended. Roussel (acting on his own behalf, not through an attorney) sent a number of letters asking the court for relief from this apparent error. Judge Card responded in a written order that the sentence for the misdemeanor counts was to be "one (1) year concurrent with each other, and consecutive to" the felony counts, and opined that he had made a mistake when totaling and announcing the composite sentence. Judge Card declared that the composite sentence "should have been totaled and announced as five years with two years suspended."
While Roussel's appeal was pending, the United States Supreme Court issued its decision in Blakely v. Washington. Roussel filed a motion to correct an illegal sentence under Alaska Criminal Rule 35(a), arguing that his sentence violated Blakely because Judge Card relied on judge-found aggravating factors to impose a sentence greater than the presumptive term. The State opposed, arguing that factors (c)(8) and (c)(12) fell within the prior conviction exception and thus authorized Judge Card's sentence. The State conceded (incorrectly, it now argues) that aggravator (c)(21) was not Blakely-compliant. Roussel argued in reply that factors (c)(8) and (c)(12) went beyond the "narrow exception for the mere fact of a prior conviction."
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Judge Card concluded that there was a Blakely violation, and scheduled the case for resentencing. The judge issued an order ruling that at resentencing, the State would be allowed to prove the (c)(8) and (c)(21) aggravators by prior convictions alone.
At the resentencing hearing, Judge Card originally found the (c)(8) aggravating factor, based on Roussel's prior convictions for misdemeanor assault and attempted second-degree sexual abuse of a minor, but later ruled that (c)(8) was not proven because whether the attempted second-degree sexual abuse of a minor conviction was an assault for purposes of (c)(8) depended on the underlying facts of that case, not on the fact of the conviction. Judge Card found the (c)(21) aggravating factor based on Roussel's recent convictions for forgery, finding that these offenses were "similar" to the current offenses because the current offenses also involved "using false pretenses or false information," and based on Roussel's prior convictions for attempted fourth-degree misconduct involving a controlled substance.
On the two felony counts, Judge Card imposed "4 years with 2 years suspended, giving [Roussel] 2 years to serve which is presumptive." On the four misdemeanor counts, Judge Card imposed "a 1 year concurrent sentence, consecutive to" the felony counts. He did not specify whether this time was suspended or to serve. He again ruled that 1 year of the time to serve in this case was concurrent to the time imposed in the other forgery case. The written judgment comported with this ruling, indicating that the 1 year for the misdemeanors was to serve.
Roussel appeals, arguing that his sentence violates Blakely and the protection against double jeopardy.
Discussion
Roussel argues that his sentence on the two felony counts, a total of 4 years with 2 years suspended, violates Blakely because Judge Card relied on judge-found aggravators to increase his sentence beyond the presumptive term.
At Roussel's first sentencing hearing, Roussel conceded aggravator (c)(21) (Roussel has a criminal history of repeated instances of conduct similar in nature to the current offense). At the resentencing, Judge Card found aggravator (c)(21) based on Roussel's prior convictions. In the instant case, Roussel was convicted of fourth-degree misconduct involving a controlled substance under AS 11.71.040(a)(9), for "obtaining possession of a controlled substance. . . by misrepresentation, fraud, forgery, deception, or subterfuge." Judge Card found the (c)(21) aggravating factor based on Roussel's prior convictions for attempted fourth-degree misconduct involving a controlled substance under the same subsection as in the current case. Judge Card also mentioned Roussel's convictions for forgery, and found that these convictions could also be considered similar in nature to the current offense for purposes of (c)(21).
Roussel argues that Blakely was violated when Judge Card found that his prior offenses were similar in nature to the present offense. In Grohs v. State, this court held that:
118 P.3d 1080 (Alaska App. 2005).
[A] sentencing judge under Alaska's pre-2005 presumptive sentencing laws could properly rely on a defendant's prior convictions as a basis for finding aggravator (c)(21) — at least when the defendant did not dispute the fact of those convictions, and when the State relied simply on the convictions themselves and the legal elements of those crimes, rather than attempting to introduce evidence of the particular facts underlying the prior convictions.
Id. at 1084.
Roussel does not argue that aggravator (c)(21) can never be considered Blakely-compliant, but instead argues that he should have been allowed to present evidence that would have demonstrated that the conduct underlying his previous convictions was different than the conduct in the instant case. He contends that the similarity of two offenses cannot always be determined by looking at the elements of the crime alone, and that the question necessitates a factual inquiry if the defendant demands one. In support, he points to the legislature's use in aggravator (c)(21) of the word "conduct." But Grohs expressly provides that as long as the State does not attempt to rely on facts underlying a prior conviction, it is enough for a sentencing judge to find similarity from the legal elements of a conviction. In other words, if a defendant has engaged in conduct that results in a conviction for an offense that is similar to the present offense, that is enough to satisfy (c)(21), even if the prior conduct itself, when compared in isolation to the current offense's conduct, may seem different.
Id.
See K elley v. State, 785 P.2d 567, 568 (Alaska App. 1990) (holding that proof of (c)(21) does not require "a particularized showing of factual and circumstantial similarity between current incidents of misconduct").
Roussel next argues that the elements of the prior offenses on which Judge Card relied in finding (c)(21) are not similar as a matter of law to the current offense. He argues that his two prior convictions for attempted fourth-degree misconduct involving a controlled substance are not similar in nature to his current convictions for fourth-degree misconduct involving a controlled substance because "the legislature has drawn a significant distinction between the punishment for attempt crimes and the punishment for the completion of the offense." But the differing punishment for these offenses is irrelevant — offenses need not be identical, but only similar in nature.
See, e.g., State v. Avery, 130 P.3d 959, 961, 963 (Alaska App. 2006) (finding that prior convictions for possession and sale of illegal drugs are similar in nature to current conviction for fourth-degree misconduct involving a controlled substance); Grohs, 118 P.3d at 1083 (Alaska App. 2005) (finding that prior convictions for driving under the influence were similar in nature to felony refusal to provide a breath sample). See also Kelley, 785 P.2d at 568 ("Incidents of misconduct may fairly be said to be 'similar in nature' if they involve the same type of crime.").
Roussel also argues that Judge Card should not have relied on his convictions for forgery because Roussel was convicted of those crimes after the commission of the current offense. In order for a defendant's conviction to be considered a "prior conviction" for purposes of the applicability of presumptive sentencing, that conviction must have been entered against the defendant prior to the commission of the offense for which he is about to be sentenced. The same rule applies to the use of a prior conviction to support an aggravating factor. Roussel committed the current offenses in January 2003. Roussel was not convicted of the forgeries until September 2003. Thus, the forgery convictions cannot be a basis to find an aggravating factor in this case. However, the two convictions for attempted fourth-degree misconduct involving a controlled substance are sufficient to support Judge Card's finding of aggravator (c)(21).
State v. Rastopsoff, 659 P.2d 630, 636 (Alaska App. 1983).
See Ritter v. State, 97 P.3d 73, 81-82 (Alaska App. 2004).
Andrews v. State, 967 P.2d 1016, 1019 (Alaska App. 1998) ("[T]he ordinary mean ing of 'repeated' is 'more than once' or 'on more than one occasion.'").
Because Judge Card properly found aggravator (c)(21) and because (c)(21) is here Blakely-compliant, we need not address the State's claim that Judge Card erred when he found that aggravating factors (c)(8) and (c)(12) were not Blakely-compliant, because one Blakely-compliant aggravating factor was sufficient to authorize the sentence under the pre-2005 sentencing law.
See Cleveland v. State, 143 P.3d 977, 984-85 (Alaska App. 2006) (holding that once one or more Blakely-compliant aggravating factors are proved, the sentencing judge is authorized to impose any sentence up to the statutory maximum).
Moreover, Judge Card could have imposed the same sentence for the two felonies without having to find any aggravating factors. In Billum v. State, this Court addressed a similar situation. Billum argued that his sentence violated Blakely because the trial judge relied on one judge-found aggravating factor in imposing a composite sentence of 10 years with 5 years suspended for three counts of first-degree assault, each of which carried a presumptive term of 5 years. But this Court found that the sentencing judge "had the authority — even in the absence of aggravating factors — to impose the 5-year presumptive term on each of Billum's three convictions for first-degree assault, and to order that one of these presumptive terms would run consecutively to the other two, and then to suspend this consecutive 5-year term." We held that any Blakely error was harmless beyond a reasonable doubt where "[i]t [was] wholly fortuitous that [the sentencing judge] chose to achieve the composite sentence" by increasing the sentence on one of the convictions using aggravating factors, instead of crafting the sentence as described above.
151 P.3d 507 (Alaska App. 2006).
Id. at 508.
Id. at 509.
Id. at 509-10.
Roussel's situation is analogous. Judge Card could have imposed the identical composite sentence without finding any aggravating factors by imposing 2 years for each of the fourth-degree misconduct involving a controlled substance counts, running them consecutively, and suspending all the time for one of the two counts. Or he could have imposed the presumptive 2 years for each felony concurrent with each other and then imposed the misdemeanor terms consecutively for the additional 3 years of suspended imprisonment.
Id. at 509 (citing Griffith v. State, 675 P.2d 662, 665 (Alaska App. 1984) (holding that if a judge is sentencing a defendant for two or more offenses carrying presumptive terms and has the discretion to impose the sentences consecutively, the judge may impose the terms consecutively, suspending some or all of one of the terms, as long as the time to serve is at least as great as the longest presumptive term)).
We turn now to Roussel's double jeopardy claim. Under the double jeopardy clause of the Alaska Constitution, "once a sentence has been meaningfully imposed, it may not, at a later time, be increased." A sentence is considered meaningfully imposed when it is legally imposed and not subject to change under Alaska's criminal rules. For purposes of this rule, a sentence is meaningfully and legally imposed once the sentencing hearing has been adjourned. If a sentence is illegal, it is not considered meaningfully imposed, but upon resentencing, the court may only modify the sentence to the extent necessary to correct the illegality. Finally, if there is a discrepancy between a trial judge's oral sentencing remarks and the ensuing written judgment, the oral remarks control.
Alaska Const. art I, § 9; Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971). See also Love v. State, 799 P.2d 1343, 1345 (Alaska App. 1990).
Shagloak v. State, 582 P.2d 1034, 1037 (Alaska 1978).
See Love, 799 P.2d at 1345; Connolly v. State, 758 P.2d 633, 637 (Alaska App. 1988); Dentler v. State, 661 P.2d 1098, 1099-1100 (Alaska App. 1983).
Love, 799 P.2d at 1346.
Baker v. State, 110 P.3d 996, 1002 (Alaska App. 2005).
Judge Card asserts in his order refusing to correct the written judgment that he merely made an arithmetic mistake in announcing the composite sentence. But Judge Card described the composite sentence identically three times, each time indicating that Roussel would only have 2 years to serve. And although he initially failed to specify whether the 1 year of time for the misdemeanor offenses was suspended or to serve, when Roussel's attorney requested clarification of the nature of the 1 year imposed for the misdemeanors, Judge Card stated: "that is suspended."
The State argues that the difference in the oral and written sentences first given by Judge Card is irrelevant because Judge Card completely resentenced Roussel in an attempt to correct a Blakely error. But even if Judge Card were required to resentence Roussel to correct a Blakely error, he would only be able to adjust the sentence to the minimum extent necessary to correct the illegality. When the illegality does not require increasing the severity of the sentence, double jeopardy bars the court from doing so. It was not necessary to increase Roussel's composite time to serve in order to remedy any potential Blakely error.
Love, 799 P.2d at 1346.
See id. at 1347.
Conclusion
Roussel's sentence did not violate Blakely because Judge Card found a Blakely-compliant aggravator, and because Judge Card could have imposed the same composite term without relying on aggravating factors. However, the superior court meaningfully imposed a composite 5-year term with 3 years suspended, and double jeopardy barred an increase in the term to serve. The superior court shall issue an amended judgment of 5 years with 3 years suspended. In all other respects, the sentence is AFFIRMED.