BURNS v. STATE, A-9543 (Alaska App. 6-27-2007)
Court of Appeals No. A-9543.Court of Appeals of Alaska.
June 27, 2007.
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 authority for any proposition of law.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-05-1061 Cr.
Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig Tillery, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
MANNHEIMER, Judge.
In 2005, Kevin A. Burns was indicted on several counts of first-degree sexual abuse of a minor[fn1] for engaging in sexual penetration with a girl under the age ofPage 2
thirteen years, as well as one count of second-degree sexual abuse of a minor[fn2] for engaging in sexual penetration with this same girl after she turned thirteen (but was still under the age of sixteen years).
Burns ultimately reached a plea agreement with the State. Under the terms of this agreement, Burns pleaded no contest to two counts of first-degree sexual abuse, and the State dismissed the remaining charges. In addition, the State agreed that Burns’s composite time to serve would be capped at 12 years — although the State was free to ask the court to impose additional suspended imprisonment.
As explained in the accompanying footnote, Burns faced a presumptive term of 8 years’ imprisonment on each of the two counts of first-degree sexual abuse of a minor.[fn3] Burns’s sentencing judge was not authorized to increase this presumptive term (not even with suspended imprisonment) unless the State proved one or more of the aggravating factors listed in AS 12.55.155(c).[fn4]
The State initially proposed eight aggravators, but the State later conceded that, under Blakely v. Washington, 542 U.S. 296,124 S.Ct. 2531, 159 L.Ed.2d 403Page 3
(2004), Burns was entitled to a jury trial on six of these aggravators. The State did not wish to proceed with a jury trial on these aggravators, so the State dropped them.
The State contended that its two remaining aggravators — (c)(8) (history of aggravated or repeated assaultive behavior) and (c)(21) (history of similar offenses) — were Blakely-compliant because the State’s proof of these aggravators was based on Burns’s prior criminal convictions. However, Superior Court Judge Randy M. Olsen concluded that Burns’s prior convictions were not similar in nature to his current offenses, thus mooting the State’s Blakely argument with respect to aggravator (c)(21).
This left aggravator (c)(8): history of aggravated or repeated assaultive behavior. To prove this aggravator, the State relied on the fact that Burns had three prior convictions from New York State: a conviction for misdemeanor assault with intent to cause physical injury in 1978, and convictions for attempted second-degree assault and resisting arrest in 1982.
At the sentencing hearing, Burns’s attorney acknowledged that, underBlakely, a defendant is not entitled to a jury trial on a proposed aggravating factor if that factor is based on the defendant’s prior criminal convictions. However, the defense attorney argued that the State’s proof of aggravator (c)(8) exceeded the bounds ofBlakely’s “prior conviction” exception.
The defense attorney did not dispute that Burns had the three prior criminal convictions from 1978 and 1982 in New York. However, the defense attorney argued that, before Judge Olsen could determine whether these prior convictions constituted a history of “repeated” assaultive behavior, the judge would have to go beyond the mere fact that these convictions existed.
The defense attorney conceded that Burns’s 1978 conviction for assault with intent to cause physical injury constituted one instance of assaultive behavior for purposes of aggravator (c)(8). However, the defense attorney contended that it wasPage 4
impossible to know whether Burns’s 1982 conviction for attempted second-degree assault constituted a second instance of “assaultive” behavior. The defense attorney argued that, because Burns was convicted only of an attempt, one could not tell (without knowing the details of that 1982 case) whether Burns’s conduct qualified as “assaultive”. And the defense attorney suggested that, for much the same reasons, one could not tell whether Burns’s conviction for resisting arrest qualified as an instance of “assaultive” behavior.
In other words, Burns’s attorney argued that it was impossible to know whether Burns’s two 1982 convictions reflected “assaultive” conduct on his part unless one embarked on a detailed examination of the underlying facts of those two convictions. And the defense attorney argued that, under Blakely, such an examination had to be conducted by a jury, not the sentencing judge.
Judge Olsen rejected the defense attorney’s construction ofBlakely and concluded that, based on Burns’s prior convictions, the State had proved aggravator (c)(8).
Judge Olsen then sentenced Burns to 12 years with 4 years suspended on each of the two counts. The judge also ordered that 4 years of the “time to serve” portions of these two sentences would run concurrently. In other words, Burns received a composite sentence of 12 years to serve (the negotiated sentence cap) and an additional 8 years suspended.
Burns’s arguments on appeal
Burns raises several arguments based on the Sixth Amendment right to jury trial announced in Blakely v. Washington and the right to jury trial under the Alaska Constitution as construed in Donlun v.State, 527 P.2d 472 (Alaska 1974).Page 5
First, Burns asserts that, under a presumptive sentencing scheme like Alaska’s, aggravating factors must be deemed elements of the offense — elements that must be pleaded in the indictment and proved to a grand jury. We rejected this argument in State v. Dague, 143 P.3d 988 (Alaska App. 2006).
Burns also argues that even if Blakely does not require a jury trial for aggravating factors based on a defendant’s prior convictions, the Alaska right to jury trial is broader, and it makes no exception for aggravators based on prior convictions. Burns did not raise this argument in the superior court, so he must show plain error.
There was no error at all. We recently rejected this same argument inActive v. State, 153 P.3d 355, 366-67 (Alaska App. 2007).
Burns further argues that, even though Blakely does not require a jury trial for aggravating factors based on a defendant’s prior convictions, this “prior conviction” exception has been questioned by at least five members of the United States Supreme Court. Burns argues that it is only a matter of time before the Supreme Court renounces this exception and holds that defendants are entitled to jury trials on all aggravating factors.
But as we explained in Tyler v. State, 133 P.3d 686 (Alaska App. 2006), we are obliged to apply federal constitutional law as it has been interpreted by the Supreme Court. Even assuming that the exception for prior convictions has now become questionable authority, this Court should not anticipate the future decisions of the United States Supreme Court on this issue. Instead, we must continue to apply the “prior conviction” exception unless and until the Supreme Court tells us to do otherwise. Id. at 689-690.
Burns next argues that, even though he and his attorney never disputed the existence of his 1978 and 1982 criminal convictions, Judge Olsen committed error by failing to obtain Burns’s personal, express concession of these convictions and hisPage 6
concomitant waiver of the right to jury trial. Burns argues that, because his right to jury trial was at stake, Judge Olsen could not rely on the defense attorney’s concession of the existence of the 1978 and 1982 convictions. Rather, Burns contends, Judge Olsen was obliged to address Burns personally and obtain his express waiver of the right to jury trial.
Burns did not raise this objection in the superior court, so he must now show plain error. We recently held that, in these circumstances, a sentencing judge’s failure to obtain the defendant’s personal waiver of the right to jury trial does not constitute plain error — because the case law is divided on this issue, and reasonable judges could differ as to what the law requires. Cooper v. State, 153 P.3d 371, 372-73 (Alaska App. 2007); Lockuk v. State, 153 P.3d 1012, 1016 (Alaska App. 2007).
Finally, Burns turns to the argument that he did raise in the superior court: the argument that Judge Olsen violated Blakely when he concluded that Burns’s 1982 convictions for attempted second-degree assault and resisting arrest constituted instances of “assaultive” behavior.
As explained above, Burns conceded that his 1978 conviction for assault with intent to cause physical injury was one instance of assaultive behavior, but he contends that it did not constitute an “aggravated” instance of assaultive behavior — and the State does not argue otherwise.
In the absence of an instance of aggravated assault, aggravator (c)(8) requires proof of “repeated” assaultive behavior. To prove repeated assaultive behavior, the State relied on Burns’s 1982 convictions for attempted second-degree assault and resisting arrest. But Burns contends that, in order to decide whether his 1982 convictions for attempted second-degree assault and resisting arrest constituted “assaultive” behavior, Judge Olsen was obliged to go beyond the mere existence of these convictions andPage 7
instead delve into the underlying facts of those prior cases to an extent forbidden by the Blakely “prior conviction” exception.
In particular, Burns argues that an attempt to assault, as defined under New York law, may not necessarily require proof of “assaultive behavior”, and that the offense of resisting arrest may likewise not necessarily require proof of “assaultive behavior” under New York law. Because the State offered no evidence of Burns’s particular conduct underlying these two convictions, Burns contends that the State failed to show that either one of these two convictions constituted proof of assaultive behavior for purposes of aggravator (c)(8).
In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254,161 L.Ed.2d 205 (2005), the Supreme Court cautioned that the Blakely “prior conviction” exception does not apply to “[every] fact about a prior conviction”. Rather, the “prior conviction” exception must be interpreted more narrowly than that, because the rationale of the exception is “the conclusive significance [accorded to] a prior judicial record”. Id., 544 U.S. at 25, 125 S.Ct. at 1262.
Nevertheless, this Court has held that, consistent withBlakely, a judge sentencing a defendant under Alaska’s pre-2005 presumptive sentencing laws could rely on the fact of a defendant’s prior convictions, and on the legal elements of those crimes, to establish aggravating factors under AS 12.55.155(c) when the defendant did not dispute the existence of the prior convictions. Grohs v.State, 118 P.3d 1080, 1084 (Alaska App. 2005).
We therefore turn to the elements of the two New York offenses at issue here: resisting arrest and attempted second-degree assault.Page 8
Our examination of New York law shows that Burns may have a point with regard to the offense of resisting arrest. Under New York Penal Law § 205.30, it appears that a person can commit the offense of resisting arrest even though the person neither attacks nor injures anyone:
A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.
The situation is different, however, with respect to the crime of attempted second-degree assault. The New York second-degree assault statute, Penal Law § 120.05, contains eleven subsections, each codifying a different manner of committing this offense.[fn5]Page 9
Seven of these subsections require the government to prove that the defendant acted with the intent to cause injury to another person.[fn6] Another subsection — subsection 5 — requires proof that the defendant intentionally drugged another person for a non-medical purpose without their consent. All of this conduct appears to be the kind of conduct that would qualify as either an assault or a battery at common law, and that would qualify as some degree of assault under Alaska law.
It is true that the remaining three subsections of New York’s second-degree assault statute deal with situations where the defendant did not necessarily intend to cause injury or impairment. Subsection 4 requires the government to prove that the defendant recklessly injured someone with a dangerous instrument. Subsection 6 codifies a “felony-assault” rule similar to Alaska’s felony-murder rule: that is, a person is guilty of second-degree assault if they participate in a felony or an attempted felony, and if someone other than a participant is injured during the commission of the crime or the immediate flight therefrom. And subsection 3 requires proof that the defendant caused injury to a police officer, fire fighter, or other emergency responder while the defendant was intentionally trying to obstruct them from carrying out their duties.
Burns’s argument on appeal focuses on these latter two subsections — subsections 6 and 3. Burns points out that these subsections impose a form of strict liability. That is, under these two subsections, a defendant can be convicted of second-degree assault even though the defendant did not intend to hurt anyone, and even absent proof that the defendant acted recklessly or negligently with respect to the possibility that someone would be hurt.
But Burns was not convicted of second-degree assault; rather, he was convicted of attempted second-degree assault. And the New York Court of Appeals hasPage 10
held that the doctrine of attempt does not apply to these strict liability subsections of the second-degree assault statute.
This issue was presented in People v. Campbell, 532 N.E.2d 86,535 N.Y.S.2d 580 (N.Y. 1988). The defendant in Campbell was convicted of attempted second-degree assault under subsection 3 — the subsection that requires proof that the defendant injured a police officer, fire fighter, or other emergency responder while the defendant was trying to obstruct them from carrying out their duties. Employing the same reasoning that this Court adopted in Huitt v. State, 678 P.2d 415
(Alaska App. 1984), the New York Court of Appeals held that there can be no “attempt” to commit a crime that is defined in terms of an unintended result:
Under the [New York] Penal Law, a person “is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). . . . The rationale of treating an attempt as criminal conduct is “that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself” [citations omitted]. Essentially, an attempt to commit a crime consists of an intent to bring about the result which the particular law proscribes and, in addition, an act in furtherance of that intent [citations omitted]. To prove an attempt, the People must establish that the defendant acted for a particular criminal purpose, i.e. . . . with intent to “commit a specific crime” [citation omitted]. . . . Because the very essence of a criminal attempt is the defendant’s intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended.Page 11
Campbell, 532 N.E.2d at 87-88, 535 N.Y.S.2d at 581-82. Based on this reasoning, the New York Court concluded:
Thus, there can be no attempt to commit assault [in the] second degree [under subsection 3,] since one cannot have a specific intent to cause an unintended injury. . . .
Campbell, 532 N.E.2d at 88, 535 N.Y.S.2d at 582.
In other words, under New York law, a person can not be convicted of attempted second-degree assault unless the government proves that the defendant (1) intended to cause injury to another person and (2) performed a substantial step in furtherance of that intent. New York law does not recognize a crime of “attempted second-degree assault” with respect to the strict liability subsections of the second-degree assault statute.
This means that, when Judge Olsen was asked to decide whether Burns’s prior criminal convictions represented instances of assaultive behavior for purposes of establishing aggravating factor (c)(8), the judge could properly conclude that Burns’s 1982 New York conviction for attempted second-degree assault represented one such instance. And, combining this attempted second-degree assault conviction with Burns’s 1978 conviction for misdemeanor assault with intent to cause physical injury, Judge Olsen could properly find that these two prior convictions constituted a history of “repeated” assaultive behavior.[fn7]
ConclusionPage 12
The judgement of the superior court is AFFIRMED.
[fn1] AS 11.41.434(a). [fn2] AS 11.41.436(a). [fn3] The two acts of sexual abuse to which Burns pleaded no contest were both committed in 1994. Thus, Burns’s sentencing was governed by the pre-March 2005 version of Alaska’s presumptive sentencing law and the pre-2003 version of AS 12.55.125(i), the statute that specifies the penalties for first-degree sexual assault and first-degree sexual abuse of a minor.Burns was a first felony offender, and he neither possessed a firearm, used a dangerous instrument, nor inflicted serious physical injury on his victim during his offenses. Burns therefore faced a presumptive term of 8 years’ imprisonment on each of the two counts of first-degree sexual abuse. See former AS 12.55.125(i)(1) (pre-2003 version).
[fn4] See Milligrock v. State, 118 P.3d 11, 14 (Alaska App. 2005). [fn5] New York Penal Law § 120.05: Assault in the second degree. A person is guilty of assault in the second degree when:1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or
2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or
3. With intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, an emergency medical service paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor’s intent that the animal obstruct the lawful activity of such peace officer, police officer, fireman, paramedic or technician, he causes physical injury to such peace officer, police officer, fireman, paramedic, technician or medical or related personnel in a hospital emergency department; or
4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or
6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or
7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person; or
9. Being eighteen years old or more and with intent to cause physical injury to a person less than seven years old, the defendant causes such injury to such person; or
10. Acting at a place the person knows, or reasonably should know, is on school grounds and with intent to cause physical injury, he or she: (a) causes such injury to an employee of a school or public school district; or (b) not being a student of such school or public school district, causes physical injury to another, and such other person is a student of such school who is attending or present for educational purposes. For purposes of this subdivision the term “school grounds” shall have the meaning set forth in subdivision fourteen of section 220.00 of this chapter.
11. With intent to cause physical injury to a train operator, ticket inspector, conductor, signal person, bus operator, or station agent employed by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions, he or she causes physical injury to such train operator, ticket inspector, conductor, signal person, bus operator, or station agent while such employee is performing an assigned duty on, or directly related to, the operation of a train or bus.
Assault in the second degree is a class D felony.
[fn6] Subsections 1, 2, 7, 8, 9, 10, and 11. [fn7] See Milligrock v. State, 118 P.3d 11, 16 (Alaska App. 2005);Andrews v. State, 967 P.2d 1016, 1019 (Alaska App. 1998) (the word “repeated” in AS 12.55.155(c)(8) means “more than once” or “on more than one occasion”).Page 1