Opinion
Court of Appeals No. A-10075.
July 29, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Trial Court No. 3AN-02-6219 CR.
David Reineke, Assistant Public Defender, Anchorage, 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 Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
At his first sentencing hearing, Lawrence D. Ward conceded an aggravating factor — that his criminal history included aggravated or repeated assaultive behavior. After we reversed the resulting sentence on other grounds, Ward asked for relief from this concession so that he could have a jury trial on this factor. We conclude that the sentencing judge had the discretion to deny Ward's request and impose a sentence consistent with his original concession. However, the judge did violate Ward's double jeopardy right when he increased Ward's probationary term on remand.
Background
On July 17, 2002, loss-prevention officers at the Anchorage J.C. Penney's observed Ward conceal several items of merchandise in his clothes and walk outside without paying for them. One officer confronted Ward in an adjacent parking garage, but Ward pushed the officer down a stairwell and banged the officer's head against the concrete floor. Based on this incident, a jury convicted Ward of second-degree robbery, second-degree theft, and fourth-degree assault.
AS 11.41.510(a)(1).
AS 11.46.130(a)(6).
AS 11.41.230(a)(1).
Ward had two prior felony convictions, so the presumptive sentence for his robbery conviction was 6 years' imprisonment. The State proposed four aggravating factors: that a person other than an accomplice sustained physical injury as a direct result of the defendant's conduct; that the defendant's conduct created a risk of imminent physical injury to three or more persons, other than accomplices; that the defendant's criminal history included conduct involving aggravated or repeated instances of assaultive behavior; and that the defendant knew the offense involved more than one victim. Ward did not dispute the third aggravating factor, which was based on assaults he committed at the Cook Inlet Pre-trial Facility, but he did dispute the other three factors. Superior Court Judge Larry D. Card rejected the last-stated factor requiring proof of more than one victim, but found that the other three aggravating factors had been established.
See former AS 12.55.125(d)(2) (2002).
AS 12.55.155(c)(1).
AS 12.55.155(c)(6).
AS 12.55.155(c)(8).
AS 12.55.155(c)(9).
Judge Card imposed concurrent sentences of 10 years with 4 years suspended for second-degree robbery, 3 years for second-degree theft, and 1 year for fourth-degree assault, and 7 years of supervised probation.
Ward appealed, arguing that Judge Card's decision violated Ward's right to have the aggravating factors found by a jury beyond a reasonable doubt. But we decided that appeal based on another issue: that the judge mistakenly relied on the victim's physical injury (the first aggravating factor) to enhance Ward's robbery sentence when Ward received a separate sentence on the assault charge for the same injury. We thus remanded the case for resentencing without addressing the issues Ward raised in his appeal.
See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
See Juneby v. State, 641 P.2d 823, 842 (Alaska App. 1982).
Ward v. State, 120 P.3d 204, 208-09 (Alaska App. 2005).
At resentencing, Judge Card decided that he would not allow Ward to contest the aggravating factor he had previously conceded — that his criminal history included aggravated or repeated assaultive behavior. Judge Card then imposed the same sentence of imprisonment that he had imposed before Ward's first appeal. But despite Judge Card's stated intention to not increase Ward's sentence, the court nevertheless sentenced Ward to 10 years of probation — increasing his period of probation by 3 years.
Immediately after the resentencing hearing, Judge Card accepted Ward's earlier admission that he had violated his conditions of probation. The judge decided, however, not to impose any additional time for the probation revocation, recognizing that the parole board had already revoked Ward's parole.
Ward now appeals his sentence and argues that Judge Card erred when he relied on the previously conceded aggravating factor and that the increased period of probation violated the double jeopardy clause of the Alaska Constitution. Judge Card Could Find an Aggravating Factor Based on Ward's Concession .
Article I, section 9, of the Alaska Constitution provides in part: "No person shall be put in jeopardy twice for the same offense."
During the resentencing proceedings, Ward asked for a jury trial on the aggravating factor alleging aggravated or repeated assaultive behavior. But Judge Card concluded that because Ward conceded this aggravating factor at his initial sentencing hearing, he was not entitled to relitigate this factor on remand. Ward now argues that the judge's reliance on this factor violated his right to have a jury find this factor beyond a reasonable doubt as described in Blakely v. Washington .
At Ward's initial sentencing hearing, he stated that he did not oppose this aggravating factor, and the judge accordingly found that the factor had been established. The judge's finding was consistent with several of our prior decisions: Blakely does not require a jury trial when a defendant states that he does not dispute a proposed aggravating factor. Likewise, it is not plain error when a sentencing judge relies on an aggravating factor after a defendant decides to concede that factor.
See Lockuk v. State, 153 P.3d 1012, 1016 (Alaska App. 2007); Douglas v. State, 151 P.3d 495, 506 (Alaska App. 2006); Peltola v. State, 117 P.3d 771, 773 (Alaska App. 2005); Id. at 774 (Mannheimer, J., concurring).
Malutin v. State, 198 P.3d 1177, 1184 (Alaska App. 2009); Cooper v. State, 153 P.3d 371, 373 (Alaska App. 2007); Paige v. State, 115 P.3d 1244, 1248 (Alaska App. 2005).
Ward argues that when we remanded his case he was entitled to dispute this aggravating factor at a full resentencing hearing. But a new sentencing hearing is not required when we remand only for reconsideration of the sentence after the defendant has already received a full and fair hearing. Of course, the sentencing judge has the discretion to grant a new hearing, but he or she is not required to do more than simply reconsider the sentence.
See, e.g., Baker v. State, 182 P.3d 655, 657-58 (Alaska App. 2008); Tookak v. State, 680 P.2d 509, 511 (Alaska App. 1984).
Tookak, 680 P.2d at 511 ("[W]here the defendant received a full and fair sentencing hearing . . . the trial court has [the] discretion to grant a [new] hearing upon application. . . . However, the trial court is not required to do more than simply reconsider the sentence.").
Ward's case was remanded for reasons that did not implicate the fairness of the prior sentencing hearing. Accordingly, Judge Card did not abuse his discretion when he relied on the aggravating factor that Ward had previously conceded.
The Increase in Ward's Probation Term Violated Double Jeopardy
Ward also appeals the sentence imposed by Judge Card on remand. Although Ward was initially sentenced to 7 years of probation, on remand Judge Card increased Ward's sentence to 10 years of probation. Ward argues that this increase violated the double jeopardy clause of the Alaska Constitution. Generally speaking, our due process and double jeopardy clauses prevent a trial court from increasing a sentence on remand after the defendant has made a successful appeal.
We note that double jeopardy issues may be raised for the first time on appeal. Clifton v. State, 758 P.2d 1279, 1285 (Alaska App. 1988); Horton v. State, 758 P.2d 628, 632-33 (Alaska App. 1988).
Shagloak v. State, 597 P.2d 142, 145 (Alaska 1979) (relying on due process concerns); Sonnier v. State, 483 P.2d 1003, 1005 n. 7 (Alaska 1971) (relying on the double jeopardy clause to conclude that "once a sentence has been meaningfully imposed, it may not at a later time, be increased"); Hester v. State, 797 P.2d 690, 691-92 (Alaska App. 1990) (same).
Judge Card apparently did not intend to increase Ward's sentence. Indeed, Judge Card explained that he would not increase the previous sentence immediately before he imposed the sentence on remand. However, Judge Card appears to have been operating on the mistaken belief that Ward was originally sentenced to 10 years of probation, as opposed to 7 years of probation. Immediately following the resentencing hearing, Judge Card acknowledged this mistake during the hearing on Ward's probation violation, but did not correct this mistake.
It is true that a court may modify probation terms without violating the double jeopardy clause when the court finds that the defendant has violated the conditions of his probation. And so the State argues that Judge Card simply imposed a premature disposition on the probation violation that Ward admitted to immediately after his sentencing hearing; hence, Judge Card's mistake was simply a harmless error that did not affect Ward's ultimate sentence. But even though Judge Card may have been authorized to impose an increased term of probation after the hearing on Ward's probation violation, there is nothing in the record suggesting that he ever intended to do so. On the contrary, Judge Card explicitly stated that he did not intend to increase Ward's sentence. We therefore conclude that this increased term of probation violated Ward's right against double jeopardy under the Alaska Constitution.
Reyes v. State, 978 P.2d 635, 640 (Alaska App. 1999).
Conclusion
Judge Card did not commit plain error when he relied on an aggravating factor that Ward had already conceded. But the increase in Ward's probation term violated the double jeopardy clause. We therefore REMAND for a reduction of his probationary term consistent with this opinion.