Opinion
Court of Appeals No. A-10755 Trial Court No. 3AN-92-5238 CR No. 5840
05-02-2012
JON A. WOODARD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jon A. Woodard, pro se, Seward, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Peter G. Ashman, Judge.
Appearances: Jon A. Woodard, pro se, Seward, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Jon A. Woodard was convicted of second-degree felony murder and first-degree robbery after shooting and killing a security guard while robbing a Carrs grocery store in 1992. This court affirmed his convictions but twice remanded the case for resentencing to properly address double jeopardy issues. Woodard eventually received a sentence of sixty-six years' imprisonment for the second-degree murder conviction and a concurrent sentence of seven years for first-degree robbery.
See Woodard v. State, Mem. Op. & J. No. 3933, 1998 WL 849246, at *22 (Alaska App. Dec. 9, 1998); Woodard v. State, Mem. Op. & J. No. 4374, 2001 WL 322213, at *2 (Alaska App. Apr. 4, 2001).
Woodard, 2001 WL 322213, at *2.
In 2005, Woodard filed a post-conviction relief application, claiming that the sentencing judge unlawfully relied on facts that were not proved to a jury beyond a reasonable doubt when the judge sentenced him above the twenty- to thirty-year benchmark established in Page v. State. The superior court converted Woodard's application into a motion to correct an illegal sentence under Criminal Rule 35(a). Woodard then submitted supplemental briefing, relying on Apprendi v. New Jersey. Superior Court Judge Peter G. Ashman denied the motion, concluding that (1) Woodard had no right to a jury trial on the facts the sentencing judge considered in determining whether the sentence should exceed the Page benchmark; and (2) the findings made by the sentencing judge supported the deviation from the benchmark.
657 P.2d 850, 855 (Alaska App. 1983).
530 U.S. 466 (2000).
On appeal, Woodard renews his claim that the sentencing judge erred by improperly considering factors that were not proved to a jury beyond a reasonable doubt.
In Apprendi, the United States Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be proved to a jury beyond a reasonable doubt. However, this right to a jury trial does not apply to sentences that do not exceed the prescribed statutory maximum.
Id. at 481.
At the time of Woodard's crime the sentencing range for second-degree murder was five to ninety-nine years' imprisonment without regard to aggravating or mitigating factors. The choice of the proper sentence within this range is left to the judge's discretion. The sentencing judge may consider presumptive sentencing factors by analogy, but those factors do not limit the judge's sentencing discretion. In other words, Apprendi does not require that aggravating circumstances be proved beyond a reasonable doubt to a jury in a second-degree murder case because those circumstances do not increase the statutory sentencing range.
See former AS 12.55.125(b) (1996).
Carlson v. State, 128 P.3d 197, 207 (Alaska App. 2006) ("a sentencing judge does not violate the Sixth Amendment when the judge engages in fact-finding when choosing a sentence within the specified range").
State v. Malloy, 46 P.3d 949, 957 (Alaska 2002); See Hinson v. State, 199 P.3d 1166, 1172 (Alaska App. 2008); see also Apprendi, 530 U.S. at 481 (when imposing a sentence "within the range prescribed by statute," a sentencing judge may "consider[] various factors relating both to offense and offender") (emphasis in original).
Malloy, 46 P.3d at 955.
A judge's discretion in sentencing for second-degree murder is guided by the twenty- to thirty-year benchmark this court established in Page for first felony offenders. However, "Page does not require any particular finding to justify a sentence above the benchmark range." Therefore, in Carlson v. State, we concluded that Apprendi does not require a jury trial for the findings a judge makes when imposing a sentence for second-degree murder. Woodard urges us to overrule the Carlson holding, but we do not perceive any persuasive reason to do so.
Page, 657 P.2d at 854-55.
Carlson, 128 P.3d at 204.
Id. at 207-11.
In addition, Woodard argues that Judge Hunt misapplied the statutory factors by failing to consider relevant information, engaging in speculation about his future behavior, and finding facts unsupported by the record. He also argues that Judge Hunt improperly considered certain aggravating factors in determining his sixty-six-year sentence. And he argues that his sentence is not comparable to sentences imposed in other cases for similar crimes.
All of these arguments amount to a claim that Woodard's sentence is excessive. But Woodard may not raise this claim at this point; he was required to raise this claim in his direct appeal from his conviction and sentence. Moreover, the claim that Woodard's sentence is excessive may not be raised in a Rule 35(a) motion, which only covers claims that a sentence is illegal .
See Hurd v. State, 107 P.3d 314, 328-29 (Alaska App. 2005) (holding that parties are "prohibited from raising claims in later appeals if those claims could have been raised in earlier appeals").
See Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App. 1984) (defining "illegal sentence" as used in Rule 35(a)); Stoneking v. State, Mem. Op. & J. No. 5614, 2010 WL 2637015, at *1 (Alaska App. June 30, 2010) (holding that an excessive sentence claim may not be brought in a Rule 35(a) motion because it is not a claim that the sentence is illegal); Esmailka v. State, Mem. Op. & J. No. 5413, 2008 WL 5192405, at *1 (Alaska App. Dec. 10, 2008) (same).
In a footnote, Woodard also argues that the court violated his right to allocution at a sentencing hearing held in 2000 following our first remand. But this claim does not affect the legality of Woodard's sentence; it is another claim he could have raised on direct appeal.
See Bishop, 685 P.2d at 105 n.3 (noting that deprivation of the right to allocution is considered part of a sentence appeal).
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We therefore AFFIRM the superior court's order denying the motion to correct an illegal sentence.