BRANLUND v. STATE, A-9549 (Alaska App. 5-16-2007)
Court of Appeals No. A-9549.Court of Appeals of Alaska.
May 16, 2007.Page 1
Appeal from the Superior Court, First Judicial District, Sitka, Larry C. Zervos, Judge., Trial Court No. 1SI-00-175 CR.
Linda K. Wilson, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig J. Tillery, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
STEWART, Judge.
William D. Branlund argues that the superior court violatedBlakely v. Washington[fn1] by relying on statutory aggravating factors found by the sentencing judge,Page 2
not a jury. But several aggravating factors found by the superior court were Blakely-compliant because the aggravating factors were supported by Branlund’s undisputed prior convictions. Branlund raises other claims regarding his sentencing, but we have rejected those claims in several reported cases. Therefore, we reject Branlund’s attack on his sentence.
Background facts and proceedings
On June 14, 2000, Branlund caused severe physical injury to John Vezina with a dangerous instrument, a tire iron. The grand jury indicted Branlund on one count of first-degree assault.[fn2] The parties reached a plea agreement. Branlund pleaded guilty to second-degree assault[fn3] for recklessly causing serious physical injury to Vezina. The parties stipulated that statutory mitigating factor AS 12.55.155(d)(3) applied (Branlund committed the offense under some degree of duress, coercion, threat, or compulsion which significantly affected his conduct) and agreed that the parties were free to propose other statutory aggravating or mitigating factors. The parties also agreed that the superior court would impose no more than 6 years to serve, the presumptive term that applied in Branlund’s case because of his prior felony convictions,[fn4] but could impose additional suspended time if the court found statutory aggravating factors.
The State proposed several aggravating factors from AS 12.55.155: (c)(1) (Vezina was injured as a direct result of the assault); (c)(4) (Branlund used a dangerous instrument in the offense); (c)(8) (Branlund had a criminal history of aggravated orPage 3
repeated instances of assaultive conduct); (c)(10) (Branlund’s conduct constituting the offense was among the most serious within the definition of the offense); (c)(12) (Branlund was on bail release for an offense that included the elements of assault); (c)(15) (Branlund had three or more prior felony convictions); and (c)(21) (Branlund had a criminal history of conduct similar to the present offense).
The State withdrew (c)(1) because the conduct constituting that factor was a necessary element of the assault.[fn5] Branlund conceded all the other aggravating factors except (c)(10), but the superior court found (c)(10) based on Branlund’s use of a weapon and the seriousness of the assault. Superior Court Judge Larry C. Zervos imposed a 10-year term of imprisonment with 4 years suspended. Branlund did not appeal.
In January 2005, the State petitioned to revoke Branlund’s probation and impose his suspended imprisonment for violations of his probation conditions. Judge Zervos found that Branlund violated his probation.
Branlund filed a motion to correct an illegal sentence, arguing that the court’s reliance on judge-found aggravating factors violated his rights under Apprendi v. New Jersey[fn6] and Blakely v.Washington.[fn7] Judge Zervos denied the motion, and imposed 2 of the previously suspended years of imprisonment. Branlund appeals.Page 4
Discussion
Branlund pleaded guilty to second-degree assault, a class B felony,[fn8] and he faced a 6-year presumptive term.[fn9] He challenges several aspects of his sentence.
Branlund argues that Judge Zervos violated Blakely when he found the aggravating factors without requiring the State to prove those aggravating factors to a jury beyond a reasonable doubt. InBlakely, 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.”[fn10]
In Milligrock v. State,[fn11] we held that aggravator (c)(8) isBlakely-compliant when a sentencing judge relies on a defendant’s undisputed prior criminal convictions to find the aggravating factor.[fn12] The record shows that Judge Zervos based his finding of aggravator (c)(8) on Branlund’s prior convictions.
In State v. Avery,[fn13] we held that a sentencing judge could properly find aggravator (c)(15) when the judge relies on the defendant’s undisputed prior convictionsPage 5
to find the factor.[fn14] Branlund claimed that a Hawaii conviction that was one of his four prior felony convictions did not have elements similar to an Alaska felony,[fn15] but Judge Zervos rejected that argument. Even if Judge Zervos erred, (c)(15) was supported by Branlund’s three remaining undisputed prior felony convictions. The record shows that Judge Zervos based his finding of aggravator (c)(15) on Branlund’s prior convictions.
In Grohs v. State,[fn16] we held that a sentencing judge can properly find aggravator (c)(21) when the judge relies on the defendant’s undisputed prior convictions to find the factor.[fn17] The record shows that Judge Zervos based his finding of aggravator (c)(21) on Branlund’s prior convictions.
In Cleveland v. State,[fn18] we held that Blakely is satisfied if at least one aggravating factor found by a sentencing judge isBlakely-compliant.[fn19] As we have discussed above, Judge Zervos found at least three of the aggravators by relying on Branlund’s undisputed prior convictions. Thus, Blakely is satisfied and Judge Zervos properly rejected Branlund’s Rule 35(a) motion.
But Branlund claims that the prior conviction exception is no longer valid. In Shepard v. United States,[fn20] Justice Thomas suggested in a concurring opinion thatPage 6Almendárez-Torres v. United States,[fn21] the Supreme Court decision that exempts a defendant’s prior convictions from the requirement of a jury trial under Blakely, “has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and [that] a majority of the Court now recognizes that Almendárez-Torres was wrongly decided.”[fn22] But inTyler v. State,[fn23] we ruled that we will continue to apply the prior conviction exception until the Supreme Court overrules the exception.[fn24]
Branlund asserts that under Alaska law, aggravating factors are elements of the offense that must be presented to the grand jury for inclusion in the indictment, and must be proved to a jury at trial. We rejected these claims in State v. Dague.[fn25]
Branlund also contends that Alaska law expands the Sixth Amendment right to jury trial recognized in Blakely because the prior condition exception is prohibited by the Alaska Constitution. We rejected this argument in Active v. State[fn26] and in Lockuk v. State.[fn27]
Finally, Branlund argues that because he has a right to a jury trial on aggravating factors, he must waive his right to a jury trial personally. He contends that his attorney’s concession is invalid. But Branlund did not raise this issue at his original sentencing, so he must show plain error.Page 7
Because courts are divided on this issue, it would not be plain error for a sentencing judge to rely on a defendant’s attorney’s concession of an aggravating factor.[fn28] Therefore, we reject this claim.
Conclusion
The judgment of the superior court is AFFIRMED.
[fn1] 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). [fn2] AS 11.41.200(a)(1). [fn3] AS 11.41.210(a)(2). [fn4] See former AS 12.55.125(d)(2). [fn5] See former AS 12.55.155(e). [fn6] 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). [fn7] 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). [fn8] AS 11.41.210(b). [fn9] See former AS 12.55.125(d)(2). [fn10] United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756,160 L. Ed. 2d 621 (2005) (discussing Blakely, 542 U.S. 296,124 S. Ct. 2531). [fn11] 118 P.3d 11 (Alaska App. 2005). [fn12] Id. at 16. [fn13] 130 P.3d 959 (Alaska App. 2006). [fn14] Id. at 962. [fn15] See former AS 12.55.145. [fn16] 118 P.3d 1080 (Alaska App. 2005). [fn17] Id. at 1083-84. [fn18] 143 P.3d 977 (Alaska App. 2006). [fn19] Id. at 988. [fn20] 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). [fn21] 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). [fn22] Shepard, 523 U.S. at 27, 125 S. Ct. at 1264 (Thomas, J., concurring). [fn23] 133 P.3d 686 (Alaska App. 2006). [fn24] Id. at 690. [fn25] 143 P.3d 988, 1010 (Alaska App. 2006). [fn26] 153 P.3d 355, 366-67 (Alaska App. 2007). [fn27] 153 P.3d 1012, 1017 (Alaska App. 2007). [fn28] See Cooper v. State, 153 P.3d 371, 372-73 (Alaska App. 2007).Page 1