MIDDENDORF v. STATE, A-8913 (Alaska App. 8-17-2005)

ANTHONY MIDDENDORF, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-8913.Court of Appeals of Alaska.
August 17, 2005.

Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge. Trial Court No. 3AN-00-5345 CR.

Leslie Hiebert, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for Appellant.

Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.

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

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Anthony Middendorf was convicted of assault in the first degree, a class A felony.[fn1] Middendorf was a second felony offender so he faced a presumptive 10-year term of imprisonment.[fn2]

The sentencing judge, Superior Court Judge Dan A. Hensley, found that one aggravating factor applied at sentencing: “The defendant’s prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior.”[fn3] Judge Hensley also found a mitigating factor, that Middendorf had acted under duress.[fn4] Judge Hensley ultimately sentenced Middendorf to a mitigated sentence of 10 years with 2 years suspended. This sentence was imposed in 2002 and Middendorf did not appeal.

In July 2004, Middendorf filed a motion under Criminal Rule 35(a), arguing that the sentence was illegal under Blakely v.Washington.[fn5] Middendorf argued that the Blakely
decision made it illegal for Judge Hensley to consider aggravating factors in imposing sentence. He argued that theBlakely decision required the State to prove any aggravating factors to a jury beyond a reasonable doubt. Judge Hensley dismissed Middendorf’s motion on the ground that Blakely did not apply retroactively to cases like Middendorf’s where the conviction was final before June 24, 2004 (the date of theBlakely decision). Middendorf appeals. In Gibbs v.State,[fn6] we summarized the Blakely decision as follows:

In Apprendi v. New Jersey,[fn7] the United States Supreme Court held that, with the exception of a defendant’s prior convictions, “any [disputed] fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”[fn8] In Blakely, the Supreme Court clarified that, for purposes of Apprendi, the “statutory maximum” is the maximum term of imprisonment that a judge may lawfully impose “solely on the basis of the facts reflected in a jury verdict or admitted by the defendant.”[fn9], [fn10]

We find that we need not decide the issue of whether Blakely
applies retroactively to Middendorf’s case. It is undisputed that Middendorf was a second-felony offender convicted of a class A felony. Therefore, Middendorf faced a presumptive sentence of 10 years of imprisonment. Under Blakely, Judge Hensley could impose up to 10 years of imprisonment even if there were no aggravating factors which applied to Middendorf’s sentence. Because Judge Hensley imposed a lesser sentence — 10 years with 2 years suspended — the sentence which Judge Hensley imposed was not illegal, even if Blakely applied to Middendorf’s case. We accordingly affirm Judge Hensley’s decision dismissing Middendorf’s Criminal Rule 35(a) motion.

AFFIRMED.

[fn1] AS 11.41.200 (a)(1) and/or (a)(3). [fn2] AS 12.55.125(c)(3). [fn3] AS 12.55.155(c)(8). [fn4] AS 12.55.155(d)(3). [fn5] 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). [fn6] 105 P.3d 145 (Alaska App. 2005). [fn7] 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). [fn8] Id. at 490, 120 S.Ct. at 2362-63. [fn9] Blakely, 542 U.S. at ___, 124 S.Ct. at 2537 (citations omitted) (emphasis in original). [fn10] Gibbs, 105 P.3d at 147.

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