AGUCHAK v. STATE, A-8976 (Alaska App. 5-17-2006)
Court of Appeals No. A-8976.Court of Appeals of Alaska.
May 17, 2006.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney, Judge. Trial Court No. 4BE-01-479 CR.
Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, 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 AND JUDGMENT
COATS, Chief Judge.
Ambrose Aguchak challenges the sentence that he received after his conviction for sexual assault in the first degree.[fn1] At his sentencing, the superior court found an aggravating factor and imposed an aggravated presumptive sentence based upon the aggravating factor. He argues that under Blakely v.Washington,[fn2] the State was required to prove the aggravating factor — that his criminal history included repeated instances of assaultive behavior — to a jury beyond a reasonable doubt. We rejected this argument in Milligrock v.State.[fn3] We adhere to that decision.
In October 2001, a jury convicted Aguchak of sexual assault in the first degree. Aguchak was a second felony offender and was therefore subject to a presumptive sentence of 15 years of imprisonment.[fn4] The State gave notice of an aggravating factor: that Aguchak’s criminal history included conduct involving aggravated or repeated instances of assaultive behavior.[fn5] Among other prior offenses, the State established that Aguchak had previously been convicted of assault in the fourth degree in 1986 and assault in the third degree in 1989.[fn6] Superior Court Judge Richard D. Savell found the aggravating factor. He sentenced Aguchak to the 15-year presumptive sentence. But, based on the aggravating factor, he imposed an additional 5 years of suspended incarceration and placed Aguchak on probation for a period of 10 years. This court affirmed Aguchak’s conviction in September 2004.[fn7] While that appeal was pending, the United States Supreme Court issuedBlakely. Aguchak filed a motion under Criminal Rule 35(a), arguing that his sentence was illegal because Judge Savell found the aggravating factor. Aguchak argued that, under Blakely, he was entitled to have a jury decide whether the State had proven the aggravating factor beyond a reasonable doubt. Superior Court Judge Leonard R. Devaney denied the motion. He concluded that, because the aggravating factor was based upon Aguchak’s prior convictions, Judge Savell could properly find the aggravating factor without submitting it to a jury. Aguchak appeals this decision. We affirm.
Because Aguchak’s case was pending on direct appeal when the United States Supreme Court decided Blakely, it is clear that he can now challenge the sentencing procedures that the court used in his case.[fn8] In Blakely, the United States Supreme Court held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”[fn9] Aguchak argues that Judge Savell was therefore required to submit the aggravating factor — that his prior criminal history included repeated instances of assaultive behavior — to a jury. But we recently rejected the identical argument that Aguchak raises inMilligrock.[fn10] In Milligrock, we explained that the United States Supreme Court stated that a prior conviction was a fact that did not have to be proven to a jury beyond a reasonable doubt.[fn11] And, in Milligrock, we upheld the sentencing court’s ruling that the aggravating factor, that the defendant’s criminal history included repeated instances of assaultive behavior, was established where it was uncontested that Milligrock had two prior convictions for fourth degree assault.[fn12] We concluded that the “two prior convictions were, by themselves, sufficient to establish [the] aggravator. . . .”[fn13]
Aguchak argues that we should anticipate that the United States Supreme Court will overrule the part of the Blakely decision that allows the State to prove the existence of a defendant’s prior conviction to the court rather than to a jury. But we recently rejected this argument in Tyler v. State.[fn14] We adhere to that decision.
We accordingly affirm Judge Devaney’s order denying Aguchak’s motion to correct his sentence.
[fn1] AS 11.41.410(a)(1). [fn2] 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). [fn3] 118 P.3d 11, 16 (Alaska App. 2005). [fn4] AS 12.55.125(i)(1). [fn5] AS 12.55.155(c)(8). [fn6] AS 11.41.230 and AS 11.41.220, respectively. [fn7] Aguchak v. State, Alaska App. Memorandum Opinion and Judgment No. 4922 (Sept. 8, 2004), 2004 WL 2020261. [fn8] See Haag v. State, 117 P.3d 775, 783 (Alaska App. 2005). [fn9] United States v. Booker, 543 U.S. 220, 244,125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005). [fn10] 118 P.3d at 16. [fn11] Id. [fn12] Id. [fn13] See id. at 16 (Blakely does not apply to aggravator (c)(8) if proof of aggravator rests wholly on defendant’s undisputed prior convictions; two prior convictions for assault sufficient to establish aggravator). See also State v. Avery,130 P.3d 959, 962 (Alaska App. 2006) (four uncontested prior assault convictions establishes aggravator (c)(8)). [fn14] ___ P.3d ___, Alaska App. Opinion No. 2039 at 7-8 (March 31, 2006), 2006 WL 829881 at *3.