RICHARDSON v. STATE, A-9310 (Alaska App. 2-14-2007)

JOSHUA C. RICHARDSON, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9310.Court of Appeals of Alaska.
February 14, 2007.

Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge.

Appearances: Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, 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
STEWART, Judge.

Joshua C. Richardson contends that the superior court illegally found statutory aggravating factors codified in AS 12.55.155(c). Richardson argues that, under the United States Supreme Court’s decision inBlakely v. Washington,[fn1] the Sixth Amendment guarantees a right to jury trial with respect to all statutory aggravating factors. At Richardson’s sentencing, Superior Court Judge Mary E. Greene found that several statutory aggravating factors applied.

We conclude that Blakely is satisfied because one of the aggravating factors found by Judge Greene, aggravator (c)(19), falls withinBlakely’s prior conviction exception and thus presents a question for the sentencing judge, not a question for a jury.

Factual and procedural background

In May 1998, a jury found Richardson guilty of first-degree assault[fn2] for stabbing a man during a fight. Richardson was a first felony offender and faced a presumptive term of imprisonment.[fn3] The State alleged five aggravating factors under AS 12.55.155: (c)(3) (Richardson was the leader of a group of three or more persons who participated in the offense); (c)(8) (Richardson’s prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior); (c)(10) (Richardson’s conduct was among the most serious included in the definition of the offense); (c)(19) (Richardson had a prior adjudication as a delinquent for conduct that would be a felony if committed by an adult); and (c)(22) (Richardson’s conduct was directed at the victim because of that person’s race).[fn4] Before sentencing, Richardson conceded aggravator (c)(19).

Judge Greene found three aggravating factors, (c)(8), (c)(10), and (c)(19), and considered all three of these factors in aggravating Richardson’s sentence above the presumptive term.[fn5] Judge Greene found aggravator (c)(10) “because of the seriousness of the [victim’s] injuries” and (c)(19) because it “was conceded.” Judge Greene sentenced Richardson to 10 years with 3 years suspended, and imposed a 5-year term of probation. Richardson appealed, and this court affirmed both his conviction and sentence.[fn6]

In March 2003, after Richardson was released, the State filed a petition to revoke Richardson’s probation after he was arrested for additional crimes. Richardson’s probation was revoked and he served approximately 5 months. In January 2005, the State filed a second petition to revoke Richardson’s probation after he tested positive for marijuana and admitted using cocaine. In response, Richardson filed a motion to correct an illegal sentence under Alaska Criminal Rule 35(a). He argued that Judge Greene’s finding of the three aggravating factors at his original sentencing hearing violated Blakely. The State opposed, arguing that Blakely does not apply retroactively to sentences that, like Richardson’s, were final before Blakely was decided, and that aBlakely violation is not an “illegal sentence” for purposes of Criminal Rule 35(a).

Superior Court Judge Dan A. Hensley denied Richardson’s motion. Richardson appeals.

Whether a defendant’s juvenile adjudication was for conduct that would constitute a felony if committed by an adult is an issue for the sentencing judge, not an issue for a jury

Although Judge Greene originally found that three aggravating factors were proved, we need only determine if one of those aggravators isBlakely-compliant. We held in Cleveland v. State[fn7] that “the defendant’s right to jury trial under Blakely is satisfied if there is at least one Blakely-compliant aggravating factor — i.e., at least one aggravating factor that flows directly from the jury’s verdict, or is admitted by the defendant, or is based on the defendant’s prior convictions.”[fn8]

In Greist v. State,[fn9] this court held that a judge can properly find aggravator (c)(19) without submitting the aggravator to a jury because, under Alaska law, a juvenile delinquency adjudication requires the same procedural safeguards — trial by jury and proof beyond a reasonable doubt — as adult criminal convictions.[fn10] Because Judge Greene found this Blakely-compliant aggravator, Blakely is satisfied.

Richardson argues that decisions of the United States Supreme Court have cast doubt on the continuing viability of the Blakely prior conviction exception. However, this court will not prematurely anticipate a change in the law, and will continue employing theBlakely prior conviction exception until it is expressly eliminated or modified by the United States Supreme Court.[fn11]

Richardson also argues that, under Alaska law, all aggravating factors, including those based on uncontested prior convictions, must be charged in an indictment and presented to a jury. However, we considered and rejected this claim in State v. Dague.[fn12]
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) (b).

[fn3] Former AS 12.55.125(c) (pre-March 2005 version).

[fn4] The State also originally alleged aggravating factors (c)(1) and (c)(4), but the State voluntarily withdrew these factors at sentencing.

[fn5] See former AS 12.55.155(c) (pre-March 2005 version).

[fn6] Richardson v. State, Alaska App. Memorandum Opinion and Judgment No. 4240 (June 28, 2000), 2000 WL 852442.

[fn7] 143 P.3d 977 (Alaska App. 2006).

[fn8] Id. at 984-85.

[fn9] 121 P.3d 811 (Alaska App. 2005).

[fn10] Id. at 814.

[fn11] See Tyler v. State, 133 P.3d 686, 690 (Alaska App. 2006).

[fn12] 143 P.3d 988, 1010 (Alaska App. 2006).