Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go«, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


State v. Avery (3/10/2006) ap-2036

State v. Avery (3/10/2006) ap-2036

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.
                         
             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA, )
) Court of Appeals No. A-9031
Petitioner, ) Trial Court No. 4FA-02-1280 CR
)
v. ) O P I N I O N
)
LAWRENCE AVERY, )
)
Respondent. ) No. 2036 - March 10, 2006
)
Petition  for   review
          from  the  Superior  Court,  Fourth  Judicial
          District, Fairbanks, Jane F. Kauvar, Judge.
                                   
          Appearances:   Diane L. Wendlandt,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. Márquez, Attorney General,  Juneau,
          for   the   Petitioner.   David   K.   Allen,
          Assistant  Public  Advocate,  Fairbanks,  and
          Joshua  P.  Fink, Public Advocate, Anchorage,
          for Respondent.
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.
          COATS, Chief Judge, concurring.

          In  Blakely  v. Washington,1 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.2  Avery, who had been  sentenced  by
          Acting Superior Court Judge Jane F. Kauvar before the Blakely
decision,  filed  a motion to correct his sentence  under  Alaska
Criminal Rule 35(a), arguing that his sentence was illegal  under
Blakely  because  Judge  Kauvar  had  found  several  aggravating
factors  without submitting those aggravators to a jury.    Judge
Kauvar  concluded  that she should review Averys  sentence.   The
State  argued that Judge Kauvar had no authority to review Averys
sentence  because all of the aggravating factors that  the  court
had  previously  found were based upon Averys prior  convictions,
and  therefore,  Blakely  did  not require  submission  of  these
aggravating  factors  to  a  jury.   When  Judge  Kauvar  set   a
sentencing hearing to review Averys sentence, the State  filed  a
petition for review in this court.  We granted the petition.   We
now conclude that all of the aggravating factors that applied  to
Averys  sentence  were  based  upon his  prior  convictions,  and
therefore, Blakely did not require jury submission.
          On  appeal, Avery raises a new issue which he  did  not
present  in  the  trial  court.  Avery  argues  that  this  prior
conviction exception to Blakely relies on questionable  authority
Almendárez-Torres v. United States.3  He urges us  to  anticipate
that  the Supreme Court will overturn Almendárez-Torres and  hold
that  the  government  must  prove   any  prior  conviction  that
increases  a  defendants maximum sentence  to  a  jury  beyond  a
reasonable doubt. In a related argument, Avery argues that, under
Alaska  law,  the aggravating factors in his case, even  if  they
were  based  upon  his prior convictions, were  elements  of  his
offense.   He  argues that the State had to obtain an  indictment
from  a grand jury and prove those aggravating factors to a  jury
beyond  a  reasonable doubt.  We decline to reach these arguments
because they were never presented in the trial court or raised in
the petition.

          Factual and procedural background
          Lawrence Avery was convicted of misconduct involving  a
controlled substance in the fourth degree, a class C felony,  for
possession  of cocaine.4  Avery was a third-felony  offender  for
purposes  of  presumptive  sentencing  and  therefore   faced   a
presumptive  term of 3 years imprisonment.5  Under  Alaskas  pre-
2005   presumptive  sentencing  laws,  the  State  proposed  four
aggravating  factors:   (1) AS 12.55.155(c)(7)  (a  prior  felony
conviction considered for the purpose of invoking the presumptive
terms of this chapter was of a more serious class of offense than
the  present  offense);  (2) AS 12.55.155(c)(8)  (the  defendants
prior  criminal history includes conduct involving aggravated  or
repeated     instances    of    assaultive     behavior);     (3)
AS 12.55.155(c)(15) (the defendant has three or more prior felony
convictions);  and (4) AS 12.55.155(c)(21) (the defendant  has  a
criminal  history of repeated instances of conduct  violative  of
criminal  laws,  whether punishable as felonies or  misdemeanors,
similar in nature to the offense for which the defendant is being
sentenced under this section).
          Avery  did  not  dispute his prior convictions  or  the
applicable aggravating factors.  Judge Kauvar found all  four  of
the aggravating factors and sentenced Avery to the presumptive 3-
year  term,  and  based  upon  the  aggravating  factors,  to  an
          additional 1-year of suspended incarceration.  Avery appealed his
conviction to this court.  We affirmed.6
          Avery  then  filed a motion under Criminal  Rule  35(a)
arguing that Blakely made his sentence illegal.  In Blakely,  the
Supreme  Court  held:  Any 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.7  Avery argued that, under  Blakely,
which  was  decided after Judge Kauvar imposed the sentence,  the
maximum  sentence for his crime was 3 years of imprisonment.   He
argued  that Judge Kauvar could not lawfully find the aggravating
factors  without  giving  him the opportunity  to  contest  those
aggravating  factors in a jury trial.  In opposition,  the  State
raised  several  arguments that Averys sentence was  not  illegal
under Blakely.
          Judge  Kauvar concluded that, because at least some  of
Averys aggravating factors were based upon his prior convictions,
she  had  the  authority  to impose an  enhanced  sentence  under
Blakely.   But  she  concluded that she  should  conduct  another
sentencing  hearing  and  evaluate  whether,  given  the  Blakely
decision, she should impose the same sentence.
          The  State  filed  a motion for reconsideration,  which
Judge  Kauvar denied.  The State then filed a petition for review
with  this  court, requesting a stay of the resentencing  hearing
pending  resolution of the petition.  In its petition, the  State
contended  that  Blakely  did not make Averys  sentence  illegal.
Therefore,  the State argued that  Judge Kauvar had no  authority
to modify Averys sentence.
          We  granted the petition and ordered briefing.  We  now
conclude  that all of the aggravating factors that  Judge  Kauvar
found  were based only upon Averys prior convictions,  and  there
were  no  factual  issues that Blakely would require  a  jury  to
determine.   Therefore,  Averys sentence was  not  illegal  under
Blakely  for  Criminal Rule 35 purposes and Judge  Kauvar  lacked
authority to modify his sentence.

          All  of the aggravating factors were properly
          based on Averys prior convictions

          In Milligrock v. State,8 we stated:
          Blakely expressly exempts a defendants  prior
          convictions  from  the  requirement  of  jury
          trial.   That  is,  when a  defendants  prior
          conviction  is  the  fact that  authorizes  a
          sentencing  judge  to  exceed  an   otherwise
          applicable  sentencing limit, the  sentencing
          judge  can  rely  on  that  prior  conviction
          despite the normal Blakely requirement  of  a
          jury trial.[9]

Avery appears to concede that, under our prior decisions, he  was
not  entitled  to a jury trial on any of the aggravating  factors
because  those  aggravating factors were  based  upon  his  prior
convictions.10
          We agree with Averys concession.  The first aggravating
factor that Judge Kauvar found was that a prior felony conviction
considered for purposes of invoking the presumptive terms of this
chapter  was of a more serious class of offense than the  present
offense.11   We previously addressed this aggravating  factor  in
Milligrock.  We stated:
          Aggravator (c)(7)  that one of the defendants
          prior  felonies  is of a more  serious  class
          than   the  defendants  current  offense   is
          expressly   based   on  a  defendants   prior
          convictions.   Assuming  that  there  is   no
          dispute  as  to the existence of those  prior
          felony  convictions, this aggravator presents
          no problem under Blakely.[12]

In the present case, Avery faced sentencing for a class C felony.
It is uncontested that Avery had a prior conviction for a class B
felony   offense.    The   aggravator   was   therefore   clearly
established, and under Blakely, Avery was not entitled to a  jury
trial.
          The  next aggravating factor in question was that Avery
had  a  history of aggravated or repeated instances of assaultive
behavior.  Avery concedes that, in Milligrock, we concluded  that
where the defendant has two or more convictions for assault, this
aggravator has been established.13   It is uncontested that Avery
had  four  prior  convictions for assault.   The  aggravator  was
established based only upon Averys prior convictions.  Therefore,
Judge  Kauvar did not violate Blakely in finding this aggravating
factor without submitting it to the jury.
          We  next turn to aggravator (c)(15) (the defendant  has
three or more prior felony convictions).  It is uncontested  that
Avery  had three or more prior felony convictions.  In  order  to
find  this  aggravating factor, all Judge Kauvar had  to  do  was
count the prior felonies.  There was no question for the jury  to
decide   under  Blakely.   We  accordingly  conclude  that   this
aggravating factor was clearly established and that Judge  Kauvar
did not violate Blakely in finding the aggravating factor without
submitting it to the jury.
          We  turn  next  to  the fourth aggravating  factor,  AS
12.55.155(c)(21)  that Avery had a history of repeated  instances
of  criminal  conduct similar in nature to his  present  offense.
This aggravator poses a potential Blakely problem because it does
not  necessarily  require  proof  that  the  prior  instances  of
criminal conduct led to convictions.  And even when proof of this
aggravator is based on prior convictions, there might conceivably
be  a  factual  dispute as to whether the conviction  represented
conduct  similar in nature to the defendants present offense  (as
opposed  to  a  legal  dispute as to whether  given  conduct  was
sufficiently similar for purposes of this aggravator).
          In  Milligrock, we pointed out a similar  problem  with
respect  to aggravator (c)(8)  that a defendant has a history  of
repeated  instances of assaultive behavior.   In  particular,  we
pointed  out that this aggravator presented a Blakely problem  to
the  extent  that it might be proved by instances  of  assaultive
behavior  that did not result in convictions for assault.14   But
          we concluded that proof of this aggravator based on prior
convictions for assault does not violate Blakely.
          In  Grohs  v. State,15 we directly addressed aggravator
(c)(21)  (criminal history of similar conduct).16  We held  that,
at  least when a defendant did not dispute the existence  of  the
prior  convictions,  and  when the State  relied  simply  on  the
convictions  themselves and the legal elements of  those  crimes,
rather  than  attempting to introduce evidence of the  particular
facts  underlying the prior convictions the court could find  the
aggravator  without violating Blakely.17 It is  uncontested  that
Avery  had  several prior felony convictions for  possession  and
sale  of  illegal  drugs.  Therefore, these  convictions  clearly
established aggravator (c)(21), and there was no issue for a jury
to resolve.

          Judge Kauvar has no authority to modify Averys sentence
          Criminal  Rule  35(a)  allows a  court  to  correct  an
illegal  sentence  at  any  time.  But,  as  our  prior  analysis
demonstrates, there was nothing illegal about Averys sentence.
          Criminal  Rule 35(b) authorizes a court  to  modify  or
reduce  a  sentence  within 180 days of the distribution  of  the
written  judgment  upon  a motion made in the  original  criminal
case.  Under Criminal Rule 53, a court does have the authority to
relax  the  180-day  deadline if there is a showing  of  manifest
injustice.18    But a court may not relax the 180-day  period  by
more  than 10 days.19   We have strictly enforced the time  limit
provided  in  Criminal Rule 35(b).20    Avery did  not  file  his
motion for relief under Criminal Rule 35(b), and even if he  had,
it is uncontested that this motion would have been untimely.
          We  conclude  that  Judge Kauvar has  no  authority  to
modify Averys sentence.  We therefore vacate Judge Kauvars  order
setting a sentencing hearing to review Averys sentence.

          We  do  not decide the issues that Avery  did
          not raise either in the trial court or in his
          reply to the States petition

          The parties raised an issue in this court that they did
not  present in the trial court.  Avery contends that Almendárez-
Torres, which allows a defendants prior convictions to be  proven
to  the  court without a jury finding, is questionable authority.
He  urges  us to anticipate that the Supreme Court will  conclude
that Almendárez-Torres was incorrectly decided and will hold that
the government must prove to a jury beyond a reasonable doubt any
prior conviction that increases a defendants maximum sentence.
          In  a  related argument, which he first raises  in  his
opening  brief,  Avery argues that, under Alaska  law,  the  four
aggravating  factors in this case were elements of  his  offense,
and therefore, the State had to obtain an indictment from a grand
jury  and  prove  these aggravating factors to a  jury  beyond  a
reasonable doubt.  These issues were never presented to the trial
court  or  raised  in  the petition for review  that  this  court
granted.  We accordingly decline to address these issues.
          The order setting a resentencing hearing is REVERSED.
COATS, Chief Judge, concurring.
          My  colleagues  decline to address the  arguments  that
Avery  raises  for the first time in this court.  But  the  State
briefed these arguments and has not contested whether Avery could
first  raise them in his opposition to the States petition.   The
Blakely  decision,  by  essentially  throwing  out  many  of  the
sentencing  provisions in the prior code, has raised  many  legal
issues.   I  think  we should strive to resolve those  issues  as
promptly as we can.  The only reason to delay, that I can see, is
the  hope  that  we will be older and wiser in  the  future.   My
experience  is  that while the former is easy to accomplish,  the
latter  has  proven  to be far more elusive.  I  would  therefore
resolve those issues.
          The  Blakely  decision expressly exempts  a  defendants
prior  convictions from facts that had to be  proven  to  a  jury
beyond  a  reasonable  doubt in order to  increase  a  defendants
maximum sentence.1  Avery attacks the underpinnings of the  prior
conviction exception.  He points out that the exception for prior
convictions in Blakely relies on the United States Supreme Courts
holding in Almendárez-Torres.2 Avery notes that Almendárez-Torres
was  a  five-to-four decision over a strong dissent  by  Justices
Scalia, Stevens, Souter, and Ginsburg.3  And recently in Shephard
v.  United  States,4  Justice Thomas, who was  a  member  of  the
Almendárez-Torres majority, suggested that Almendárez-Torres  has
been   eroded   by   this  courts  subsequent   Sixth   Amendment
jurisprudence,  and a majority of the court now  recognizes  that
Almendárez-Torres  was  wrongly  decided.5    In   addition,   in
Apprendi v. New Jersey, the Supreme Court questioned the validity
of  its  Almendárez-Torres decision, but declined to  address  it
because Apprendi did not contest that holding:
          Even  though  it is arguable that Almendárez-
          Torres  was incorrectly decided, and  that  a
          logical  application of our  reasoning  today
          should  apply  if the recidivist  issue  were
          contested,  Apprendi  does  not  contest  the
          decisionss  validity and we need not  revisit
          it  for  purposes  of our decision  today  to
          treat  the case as a narrow exception to  the
          general rule we recalled at the outset.[6]

Based  upon  this  history, Avery argues that a majority  of  the
justices  on  the  Supreme Court have disavowed  the  Almendárez-
Torres case, which permits the government to prove to the court a
defendants  prior  convictions  to  enhance  his  sentence.    He
concludes  that   the  Supreme  Court  will  eventually  overrule
Almendárez-Torres  and  require  the  government   to   prove   a
defendants prior convictions to a jury beyond a reasonable doubt.
He urges us to anticipate the Supreme Courts ruling.
          A  number  of  courts have addressed the argument  that
Avery raises.  They have  rejected it.   While acknowledging that
there  are  doubts about Almendárez-Torress continuing  validity,
these courts have universally concluded that they must apply  the
Supreme  Courts  precedent as it exists, rather  than  trying  to
anticipate  what the Supreme Court might do in  the  future.7   I
conclude that we should follow those decisions.
          In  a related argument, Avery argues that, under Alaska
law,  the  aggravating  factors were  elements  of  his  offense.
Therefore,  the State had to obtain an indictment  from  a  grand
jury  and  prove  these aggravating factors to a  jury  beyond  a
reasonable doubt. Avery mainly relies on Donlun v. State.8
          Donlun  was  charged in an indictment  with  burglary.9
But  the  statute under which Donlun was charged provided  for  a
sentence  of 1 to 10 years for burglary in a dwelling,  1  to  15
years  if  the burglary occurred at night, and 1 to 20  years  if
the  dwelling was occupied at the time of the burglary.10  Donlun
was  convicted of burglary and sentenced to 10 years with 4 years
suspended.11   In  sentencing Donlun, the  court  considered  the
facts  that, when Donlun committed the burglary the dwelling  was
occupied and the offense occurred at night.12
          The  Alaska Supreme Court held that the facts that  the
burglary occurred during the nighttime and that the dwelling  was
occupied  were elements of the offense.  Therefore, in  order  to
sentence  Donlun to the higher penalties for burglary based  upon
these  facts, the State needed to have a grand jury indict  based
upon  these  facts and prove them to a jury beyond  a  reasonable
doubt.13   The  court  recognized  that  Donlun  had  received  a
sentence  of less than 10 years for his offense.  But  the  court
concluded that the trial court should resentence Donlun with  the
recognition that the maximum sentence for his offense was not  20
years but 10.14  The court remanded for resentencing.
          The  Alaska Supreme Court extensively discussed  Donlun
in State v. Malloy.15  But the supreme court pointed out that, in
Donlun,  the facts that the defendant committed the crime  during
the  nighttime and in an occupied dwelling were elements  of  the
burglary offense.  The supreme court specifically stated that  it
declined  to expand the Donlun rule under the Alaska Constitution
to  prohibit presumptive or mandatory sentencing factors as  long
as  those  factors  simply  guide or limit  a  sentencing  courts
discretion within the existing statutory sentencing range for the
offense at issue.16  Therefore, the supreme court suggested  that
Donlun  did  not  apply  to  prohibit presumptive  sentencing.  I
accordingly  conclude that there is no merit to  Averys  argument
that  Alaska law precluded the State from proving the aggravating
factors  because  the  State  did not present  these  aggravating
factors to a grand jury or trial jury.
_______________________________
     1 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

     2  United States v. Booker, 543 U.S. 220, _____, 125 S.  Ct.
738, 756, 160 L. Ed. 2d 621 (2005).

3 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).

     4 AS 11.71.040(a).

     5 AS 12.55.125(e)(3).

     6  Avery  v.  State,  Alaska  App.  Memorandum  Opinion  and
Judgment No. 4906 (Aug. 11, 2004), 2004 WL 1782553.

     7 Booker, 543 U.S. at _____, 125 S. Ct. at 756.

     8 118 P.3d 11, 15 (Alaska App. 2005).

     9 Id. at 15.

     10    Id.; Grohs v. State, 118 P.3d 1080, 1083 (Alaska  App.
2005); Edmonds v. State, 118 P.3d 17, 20 (Alaska App. 2005).

11   AS 12.55.155(c)(7).

     12   Milligrock, 118 P.3d at 16.

     13   Id.

     14   Id.

     15   118 P.3d 1080 (Alaska App. 2005).

     16   Id. at 1083-84.

     17   Id. at 1084 (citation omitted).

     18    See Alaska Crim. R. 53; Thomas v. State, 566 P.2d 630,
638-39 (Alaska 1977).

     19   Alaska Crim. R. 35(g).

     20    See,  e.g.,  State v. Couch, 991  P.2d  1286,  1287-88
(Alaska App. 1999); State v. Tinsley, 928 P.2d 1220, 1223 (Alaska
App. 1996).

     1  Blakely,  542  U.S. at 301, 124 S. Ct.  at  2536  (citing
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000)).

     2  Almendárez-Torres, 523 U.S. 224, 118 S. Ct. 1219, 140  L.
Ed. 2d 350 (1998).

     3 523 U.S. at 248-71, 118 S. Ct. at 1233-44.

     4 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).

     5  Shephard, 544 U.S. at _____, 125 S. Ct. at 1264  (Thomas,
J., concurring).

     6 Apprendi, 530 U.S. at 489-90, 120 S. Ct. at 2362 (footnote
omitted).

     7  See United States v. Rodriguez-Montelongo, 263 F.3d  429,
434  (5th Cir. 2001) (noting that although Apprendi cast  serious
doubt  on Almendárez-Torress validity, the Supreme Court did  not
overrule it and it is for the Court of Appeals to apply  the  law
as  it exists and for the Supreme Court to overrule its precedent
if  it  so  chooses. [I]f a precedent of this  Court  has  direct
application in a case, yet appears to rest on reasons rejected in
some  other line of decisions, the Court of Appeals should follow
the  case which directly controls, leaving to [the Supreme Court]
the  prerogative  of  overruling its own  decisions.)  (citations
omitted));  United States v. Davis, 260 F.3d 965, 969  (8th  Cir.
2001)  (addressing the continuing viability of Almendárez-Torres,
the  court applied the prior conviction exemption and determining
that  [i]t  is  our role to apply Supreme Court precedent  as  it
stands,  and  not as it may develop.); United States  v.  Losoya-
Mancias,  332  F. Supp. 2d 1261, 1265  (D.N.D. 2004) (recognizing
that  both  Apprendi  and  Blakely  question  the  soundness   of
Almendárez-Torres,  but  finding  that  Almendárez-Torres   prior
conviction  exception  is still the law of  the  land  until  the
Supreme  Court chooses to overrule it);  United States v. Gebele,
117 F. Supp. 2d 540, 548-49 (W.D. Va. 2000) (holding that because
Almendárez-Torres  has  not  been  overruled,  the  fact  that  a
majority of the court expresses doubt as to its validity does not
affect  its  status as controlling law, and therefore  the  court
cannot simply ignore the rule therein by simply counting Justices
or  by  speculating about what the Supreme Court might do in  the
future);  People  v.  Rivera, 833 N.E.2d  194,  198  (N.Y.  2005)
(noting  that the prior conviction exception has been  repeatedly
reaffirmed by the Supreme Court, and [a]lthough a majority of the
present Justices of the Supreme Court have expressed disagreement
with   Almendárez-Torres,  we  recognize  that   Courts   obvious
prerogative to overrule its own decisions and we therefore follow
Almendárez-Torres  until  the  Supreme  Court  rules  otherwise.)
(citations omitted)).

     8 527 P.2d 472 (Alaska 1974).

     9 Id. at 474.

     10   Id.

     11   Id. at 473.

     12   Id.

     13   Id. at 474.

     14   Id.

     15   46 P.3d 949, 953-56 (Alaska 2002).

     16   Id. at 957.

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC