ANDERSON v. STATE, A-9053 (Alaska App. 10-4-2006)
Court of Appeals No. A-9053.Court of Appeals of Alaska.
October 4, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge. Trial Court No. 3AN-00-10216 CR.
Colleen A. Libbey, Libbey Law Offices, LLC, 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 AND JUDGMENT
COATS, Chief Judge.
Joseph L. Anderson was convicted of assault in the first degree, a class A felony.[fn1] As a first felony offender, Anderson faced a presumptive term of five years imprisonment under the pre-March 2005 sentencing laws. Superior Court Judge Dan A. Hensley found two aggravating factors and sentenced Anderson to eight years with two years suspended. While his appeal was pending, Anderson filed a motion under Criminal Rule 35(a) to correct his sentence. Anderson argued that, underBlakely v. Washington,[fn2] decided while his appeal was pending, Judge Hensley erred by finding the aggravating factors himself, instead of submitting them to a jury to find the aggravators beyond a reasonable doubt.
Judge Hensley concluded that one of the aggravating factors he had previously found, that Anderson’s criminal history included conduct involving repeated instances of assaultive behavior, did not have to be found by a jury because it was established by Anderson’s two prior convictions for assault. He offered to resentence Anderson based upon this single aggravating factor. Anderson rejected the offer for resentencing and appeals Judge Hensley’s ruling finding the aggravating factor. We affirm.
Factual and procedural background
In 2001 Anderson was convicted of assault in the first degree, a class A felony.[fn3] Under the pre-2005 criminal code, Anderson, a first felony offender for purposes of presumptive sentencing, faced a presumptive term of five years imprisonment.[fn4] Judge Hensley could increase this presumptive sentence only by finding statutory aggravating factors.[fn5] Once Judge Hensley found an aggravating factor, he was authorized to increase Anderson’s sentence up to the maximum sentence of 20 years imprisonment.[fn6] Judge Hensley found two aggravating factors: that Anderson’s criminal history included conduct involving aggravated or repeated instances of assaultive behavior, and that Anderson’s criminal history included repeated instances of criminal conduct similar to his present conviction.[fn7] Anderson’s criminal history included a 1993 conviction for resisting arrest, a 1996 conviction for domestic violence assault, and a 1998 conviction for assault. At sentencing, Anderson’s counsel did not dispute the applicability of the aggravators but argued that they were duplicative and only one should be given weight. Judge Hensley imposed a sentence of eight years with two years suspended for the first-degree assault conviction. (In addition, Judge Hensley sentenced Anderson on a conviction for assault in the third degree, a class C felony.[fn8] He imposed two years with one year suspended, consecutive to the assault in the first degree sentence. But this sentence was not presumptive under the former code and is not relevant to the issues raised in this appeal.)
Anderson appealed. While his case was pending on appeal, the United States Supreme Court decided Blakely. Anderson filed a motion under Criminal Rule 35(a) to correct his sentence. Anderson argued that, under the former criminal code, Judge Hensley could not sentence him to more than the presumptive five-year sentence unless a jury found aggravating factors beyond a reasonable doubt.
After considering Anderson’s and the State’s arguments, Judge Hensley concluded that Anderson’s criminal history of conduct involving aggravated or repeated instances of assaultive behavior was an aggravator that did not have to be presented to a jury. He reasoned that, since Anderson’s two prior assault convictions were undisputed, the aggravator was properly established without submitting it to a jury. But he decided the other aggravator, which he had previously found, that Anderson’s criminal history included repeated instances of criminal conduct similar to Anderson’s present offense, was required to be presented to a jury under Blakely. He stated that he would not consider this aggravator in any resentencing. Judge Hensley therefore granted Anderson’s motion in part and stated that Anderson could be resentenced if he so desired. Anderson declined to be resentenced. He appealed Judge Hensley’s ruling to this court.
Why we uphold Judge Hensley’s ruling
After Judge Hensley issued his ruling, this court decidedMilligrock v. State.[fn9] In Milligrock, we held that where a defendant had two prior convictions for assault, those “two prior convictions were, by themselves, sufficient to establish aggravator (c)(8)” — the aggravator that the defendant had a history of aggravated or repeated instances of assaultive behavior.[fn10] We concluded where it was uncontested that the defendant had two prior convictions for assault, the court could properly find the aggravator without violating Blakely.
Anderson recognizes the Milligrock decision but argues that Judge Hensley still had to submit the aggravating factor to a jury because the judge considered Anderson’s prior conviction for resisting arrest, as well as the two assault convictions, in finding the aggravating factor. There is no evidence in the record that Judge Hensley relied on the resisting arrest conviction in finding the aggravating factor. Further, Anderson’s argument misses the point — Judge Hensley properly concluded that he could find the aggravating factor based upon Anderson’s two prior convictions for assault. Once he had properly found an aggravating factor, under the former Alaska code, Judge Hensley was authorized to impose up to the maximum sentence.[fn11]
Anderson argues that the prior conviction exception inBlakely, upon which our decision in Milligrock is based, is likely to be overruled by the United States Supreme Court. He argues that we should anticipate this speculative decision of the Supreme Court and not rely on the prior conviction exemption. This court has previously rejected this argument.[fn12] Conclusion
We affirm Judge Hensley’s ruling finding that Anderson’s two prior undisputed convictions for assault allowed him to find the (c)(8) aggravator without submitting it to the jury.
AFFIRMED.
[fn1] AS 11.41.200. [fn2] 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). [fn3] AS 11.41.200(b). [fn4] Former AS 12.55.125(c). [fn5] Former AS 12.55.155(a)(2). [fn6] Id. [fn7] AS 12.55.155(c)(8) and (c)(21). [fn8] AS 11.41.220(a)(1)(B). [fn9] 118 P.3d 11 (Alaska App. 2005). [fn10] Id. at 16. [fn11] AS 12.55.155(a)(2); Cleveland v. State, ___ P.3d ___, Op. No. 2060 (Alaska App. August 25, 2006), 2006 WL 2458578. [fn12] Tyler v. State, 133 P.3d 686, 689-90 (Alaska App. 2006).