GUSTAFSON v. STATE, A-9533 (Alaska App. 10-31-2007)

DOUGLAS P. GUSTAFSON, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9533.Court of Appeals of Alaska.
October 31, 2007.

Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-04-9574 Civ.

Randall S. Cavanaugh, Kalamarides Lambert, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION
MANNHEIMER, Judge.

This case involves a claim that a defendant’s post-conviction relief attorney incompetently failed to file an appeal from the superior court’s denial of post-conviction relief. However, the underlying issue — an issue that has been extensively briefed by both parties — is whether the defendant was sentenced in violation of the SixthPage 2
Amendment right to jury trial as interpreted in Blakely v.Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Because the defendant’s Blakely claim has been extensively briefed to this Court, and because it is apparent to us that this Blakely claim has no merit, we conclude that it would advance the interest of justice to simply resolve the Blakely claim now — thereby mooting the issue of whether the defendant’s post-conviction relief attorney was ineffective for failing to file an earlier appeal.

Underlying facts

In 1991, Douglas P. Gustafson was convicted of second-degree murder and sentenced to 65 years in prison. This Court affirmed Gustafson’s conviction and sentence in Gustafson v. State, 854 P.2d 751 (Alaska App. 1993).

In 2001, Gustafson filed a petition for post-conviction relief, arguing that his sentence for second-degree murder was imposed in violation of his Sixth Amendment right to jury trial under Apprendi v.New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In particular, Gustafson contended that, under Apprendi, he was entitled to a jury trial on all issues of fact that his sentencing judge relied on when the judge concluded that Gustafson should receive a sentence higher than the Page benchmark sentencing range for second-degree murder (20 to 30 years to serve).[fn1]

Assistant Public Defender Linda K. Wilson was appointed to represent Gustafson in this post-conviction relief litigation.

The superior court dismissed Gustafson’s petition on November 24, 2003, having concluded that Gustafson’s sentencing proceedings did not violate Apprendi. APage 3
handwritten notation at the bottom of the superior court’s order indicates that a copy of the order was distributed to Wilson on November 25, 2003.

Under Alaska Appellate Rule 204(a)(1), if Gustafson wished to appeal the superior court’s decision, his appeal was due by the 30th day following the distribution of the superior court’s order — in other words, by December 26, 2003 (the 25th being a holiday).

On December 22, Wilson wrote to Gustafson, informing him that the superior court had dismissed his petition for post-conviction relief (and providing him a copy of the court’s order). Wilson told Gustafson that “[she] did not receive this [o]rder until last week”, but she conceded that the order “[had been] floating around [the Public Defender Agency’s] office prior to that”.

Wilson told Gustafson that, in her view, there was “no basis to appeal” the superior court’s order, and that she did not plan on filing an appeal. Wilson further told Gustafson that “[a]ny appeal would have to be [filed] within 30 days of . . . the [o]rder, or by December 26, 2003.” Wilson then added, “Unless I hear otherwise from you within the next week or two, I will close out this file. Sorry we weren’t able to get anywhere with this, but the law was so plainly against us.” Wilson closed the letter by giving Gustafson the number of her direct telephone line at the Public Defender Agency in case he had any questions or needed to contact her for any reason.

According to Wilson, she did not hear from Gustafson for over seven months. Then, on July 6, 2004 — twelve days after the United States Supreme Court issued its decision in Blakely v. Washington,542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403 (2004) — Wilson received a letter from Gustafson.

In this letter, Gustafson apparently told Wilson that he wished to renew his claim that he had been sentenced in violation of his right to jury trial. By this time, however, it was too late to file an appeal, and it was even too late to file a request toPage 4
accept a late-filed appeal. See Alaska Appellate Rule 521, which prohibits this Court from accepting a notice of appeal that is more than 60 days late — i.e., in Gustafson’s case, a notice of appeal filed more than 90 days after the distribution of the superior court’s order.

Gustafson then filed a second petition for post-conviction relief, this one asserting that Wilson had incompetently represented him during the litigation of the first petition — by failing to notify Gustafson of the superior court’s adverse order until just three business days before Gustafson’s time for appeal expired, and by failing (while waiting for Gustafson’s response) to file a motion seeking an extension of the deadline for filing an appeal, so that Gustafson’s appeal would be timely if, in fact, he decided to appeal the superior court’s order of dismissal.

In support of this petition, Gustafson submitted a written statement in which he declared that, after receiving Wilson’s letter of December 22, 2003, he wrote back to Wilson. Although Gustafson does not explicitly state this, he implies that this letter informed Wilson that he wished to appeal the superior court’s order. But Wilson never responded to Gustafson’s letter. (Gustafson did concede that, because of the Bureau of Prisons’ interference with prisoner mail, it was possible that his letter was never delivered to Wilson.)

Superior Court Judge Larry D. Card ruled that Gustafson had failed to offer a prima facie case of attorney incompetence. He concluded that “[Gustafson] did not contact [Wilson] until shortly after theBlakely decision came [out — that is, until] after June 24, 2004.” (As noted above, even though Gustafson asserted that he had written Wilson an earlier letter, he conceded that she might not have received it.)

Even accepting the truth of the allegations of fact set forth in Gustafson’s petition, Judge Card concluded that “[Wilson] had absolutely nothing to do with [Gustafson’s] failure to contact her within a reasonable [period of] time after she wrotePage 5
to him regarding his appeal rights.” Judge Card added, “It appears to [this] court that the only reason [Gustafson] thought he [might] want to appeal the dismissal [of his earlier petition] was solely because of theBlakely [decision].”

For these reasons, Judge Card concluded that Gustafson had failed to set forth a prima facie case that Wilson had incompetently allowed Gustafson’s appeal rights to expire.

Gustafson now appeals Judge Card’s decision to this Court.

Our resolution of Gustafson’s Blakely claim

Gustafson first argues that Judge Card was wrong to dismiss his petition for post-conviction relief because there was an unresolved dispute concerning a material issue of fact. Specifically, Gustafson argues that even though Wilson stated that she received no communication from Gustafson until July 2004, and even though Gustafson himself conceded that it was possible that Wilson never received his alleged earlier letter, it was nevertheless also possible that Wilsondid receive the purported earlier letter, and that she incompetently failed to take action on it.

It is not clear to us, from our review of the pleadings in the superior court, that Gustafson ever actually advanced this particular argument to Judge Card. But in any event, we conclude that we need not resolve this factual issue to resolve Gustafson’s case.

Gustafson’s underlying assertion of error is that, through Wilson’s delay and ensuing inaction, he lost his opportunity to appeal the superior court’s dismissal of his Apprendi/Blakely claim. But almost all of Gustafson’s current brief to this Court — 40 of 50 pages — is devoted to arguing that Gustafson is entitled to relief underPage 6Blakely (and that he was therefore prejudiced when Wilson failed to preserve his appeal rights).

In other words, Gustafson has employed this appeal to set forth (in detail) all of the Blakely arguments that he would have raised earlier, if he had filed a timely appeal of the superior court’s dismissal of his first petition for post-conviction relief. And the State has responded to those Blakely arguments in its brief.

Because the parties have extensively briefed Gustafson’sBlakely claim, we are in a position to evaluate the merit of that claim. For the reasons we are about to explain, we conclude Gustafson’sBlakely claim has no merit. Accordingly, it makes little sense for us to remand Gustafson’s case to the superior court so that the parties can engage in further litigation as to whether Gustafson should be allowed to raise this Blakely claim on appeal. Instead, we will simply decide Gustafson’s Blakely claim.

As explained in the opening paragraphs of this opinion, Gustafson was convicted of second-degree murder and sentenced to 65 years’ imprisonment. He contends that, under Apprendi and Blakely, he was entitled to a jury trial on all issues of fact that his sentencing judge relied on when the judge concluded that Gustafson should receive a sentence higher than the Page benchmark sentencing range for second-degree murder (20 to 30 years to serve).[fn2]

We rejected this same contention in Carlson v. State, 128 P.3d 197
(Alaska App. 2006). Carlson expressly holds that Blakely does not require a jury trial regarding the facts that a sentencing judge relies on when deciding whether to impose a second-degree murder sentence exceeding the Page benchmark range of 20 to 30 years to serve.Id., 128 P.3d at 208-211.Page 7

Our holding in Carlson is premised on the fact that sentencing for murder is not governed by Alaska’s presumptive sentencing law. Rather, when the Alaska Legislature enacted presumptive sentencing, the legislature retained indeterminate sentencing (within a specified range of imprisonment) for both first-and second-degree murder.[fn3] As we pointed out in Carlson v. State, “[w]ithin this range of punishment, sentencing [for murder] is indeterminate; that is, no further fact-finding is necessary to invest the sentencing judge with the authority to impose any sentence within this range.” 128 P.3d at 209. And Blakely does not require a jury trial regarding facts that a judge relies on when exercising the sentencing discretion already afforded by the applicable statutes — because, in those circumstances, the facts found by the sentencing judge “do not pertain to whether the defendant has a legal right to a lesser sentence”. Carlson, 128 P.3d at 209.[fn4]

We will not recapitulate our extensive discussion of this issue inCarlson. The important point is that we gave studied attention to this issue in Carlson, and we concluded that the Sixth Amendment right to jury trial, as interpreted in Blakely, does not apply to defendants sentenced for second-degree murder in Alaska.

In his brief, Gustafson concedes that our decision in Carlson is directly contrary to his argument on appeal. However, he asserts his belief that Carlson was wrongly decided, and that certain cases “[now] pending [before the] United States Supreme Court . . . will correct [this Court’s] misinterpretation of Apprendi and Blakely” by further clarifying the extent of the Sixth Amendment right to jury trial. Gustafson points, in particular, to the case of Cunningham v.California, which was pending at thePage 8
time he filed his brief, and which has now been decided by the Supreme Court: Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856, 863-64;166 L.Ed.2d 856 (2007).

We have considered Gustafson’s arguments, as well as the Supreme Court’s recent decision in Cunningham, and we remain convinced thatCarlson was correctly decided. Given our decision in Carlson, Gustafson’s Blakely claim has no merit.

For this reason, the judgement of the superior court is AFFIRMED.

[fn1] See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).

[fn2] See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).

[fn3] See Carlson v. State, 128 P.3d 197, 203-04 (Alaska App. 2006).See also Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).

[fn4] Quoting Blakely, 542 U.S. at 309, 124 S.Ct. at 2540. (The emphasis in the quotation comes from Blakely.)Page 1