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Tyler v. State (3/31/2006) ap-2039

Tyler v. State (3/31/2006) ap-2039

                             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


DAVID A. TYLER, )
) Court of Appeals No. A-8991 Appellant, ) Trial Court No. 3AN-02-06635 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2039 March 31, 2006
)
          Appeal  from the Superior Court,  Third  Judi
          cial  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.

          STEWART, Judge.

          David  Tyler  was  convicted of  felony  driving  while
intoxicated and faced a 3-year presumptive term because he was  a
third  felony  offender.   After Tyler conceded  two  aggravating
factors, the superior court imposed 5 years imprisonment.   Tyler
argues that his sentence was illegal under Blakely v. Washington1
          because neither aggravator was found by jury beyond a reasonable
doubt.  Because Tyler conceded that both aggravators applied, and
because he has not shown plain error, we reject Tylers arguments.

          Facts and procedural background
          In  July  2002,  David  Tyler was charged  with  felony
driving while intoxicated, refusal to submit to a chemical  test,
and  driving with a suspended license.2  Tyler pleaded no contest
to  driving  while  intoxicated  and  driving  with  a  suspended
license;  the refusal charge was dismissed.
          At  sentencing  in April 2003, Tyler conceded,  through
his attorney, two aggravators:  AS 12.55.155(c)(20) (Tyler was on
parole or probation for another felony charge at the time of  the
offense);  and AS 12.55.155(c)(21) (Tyler had a criminal  history
of  repeated instances of similar conduct).  The State relied  on
Tylers prior convictions for driving under the influence to prove
aggravator  (c)(21).   Tyler  had six  prior  driving  under  the
influence  convictions,  two of which  were  felony  convictions.
Thus,  Tyler  faced  a 3-year presumptive term.3   Tyler  was  on
probation  for  one  of the previous felony convictions  when  he
committed the present offense.
          Superior Court Judge Dan A. Hensley sentenced Tyler  to
the  maximum 5 years imprisonment for the felony DWI, revoked  an
additional  6  months  suspended imprisonment  from  one  of  the
previous  DWI  convictions, and imposed 30 days imprisonment  for
driving with a suspended license.
          In   an  earlier  appeal,  we  affirmed  Tylers  5-year
sentence for felony driving under the influence but remanded  the
case  to the superior court to determine whether Tylers composite
sentence  for all three offenses should exceed the 5-year  prison
term.4   On  remand, Judge Hensley reduced Tylers sentence  to  a
composite 5-year term by ordering that Tylers 30-day sentence for
driving  with a revoked license run concurrently with  Tylers  5-
year  sentence  for  felony  driving  while  intoxicated.   Judge
Hensley also returned Tyler to probation with no time imposed for
the probation violation.
          Judge Hensley imposed the reduced sentence on April 19,
2004, four years after the United States Supreme Court issued its
decision  in  Apprendi v. New Jersey5 but before its decision  in
Blakely  v. Washington.  We affirmed Tylers modified sentence  in
an order issued after the Supreme Court issued Blakely.
          After  Blakely  was decided, Tyler filed  a  motion  to
correct  illegal sentence under Alaska Rule of Criminal Procedure
35(a), arguing that the superior court did not have authority  to
impose  a  sentence  greater  than the  presumptive  3-year  term
because  a jury did not find the aggravators the court relied  on
to  impose  the  5-year  sentence.  Judge Hensley  denied  Tylers
motion, ruling that neither aggravator needed to be proved to the
jury  because they both fell into the prior convictions exception
outlined in Blakely.
          Tyler appeals.

          Does Tylers sentence violate Blakely?
          Both parties agree that the rule in Blakely applies  to
Tylers  case.   But Tyler  did not raise a Blakely claim  in  the
superior  court until he filed his 35(a) motion.   Therefore,  he
must  now  show  that Judge Hensleys decision to  sentence  Tyler
based on the two conceded aggravators without submitting them  to
a jury is plain error.6
          The  State argues that Blakely claims, such as  Tylers,
are  not  properly  brought in a Rule 35(a) motion  because  Rule
35(a)  protects  against  illegal sentences.   According  to  the
State, Tyler is challenging only the manner in which the sentence
was  imposed (i.e. without a jury finding aggravators),  and  not
the legality of the actual sentence.  In Bishop v. Anchorage,7 we
recognized  that the term illegal sentence is narrowly  construed
to  apply  only to sentences the judgment of conviction  did  not
authorize.8  We found that, to constitute an illegal sentence for
the  purposes of Rule 35(a), the sentence itself must be illegal,
not the manner in which it was imposed.9  But we need not resolve
this issue, because Tyler is not able to show plain error.
          First,  we  address Tylers claim that his sentence  was
unconstitutional under Blakely  because the two aggravators Judge
Hensley  used to increase his sentence were not found by a  jury.
Under Alaskas pre-2005 presumptive sentencing laws, because Tyler
was  convicted  of  a  class C felony and had  two  prior  felony
convictions,  Tyler faced a 3-year presumptive  term.   If  Judge
Hensley had not found the aggravators (based on Tylers concession
that  they applied), the 3-year presumptive term would have  been
the  maximum  term Judge Hensley could impose for felony  driving
under the influence.
          Under Blakely, a defendant normally has a right to jury
trial,  and  a  right to demand proof beyond a reasonable  doubt,
whenever  the  defendants sentencing ceiling hinges  on  disputed
issues of fact.10  But, Blakely exempts from this rule issues  of
fact that are based on a defendants prior convictions.11
          Although  aggravator AS 12.55.155(c)(21) may be  proved
by  evidence  of uncharged criminal conduct, in the present  case
the  State  relied  solely on Tylers six  prior  convictions  for
driving  under the influence.  We held in Grohs v. State12  that,
when a defendants maximum sentence hinges on the defendants prior
convictions,  at  least when the defendant does not  dispute  the
fact  of those prior convictions, a sentencing judge can rely  on
the prior convictions without submitting them to a jury.13  Here,
because  Tyler  did  not  dispute  the  existence  of  his  prior
convictions  for  driving  under  the  influence,  Judge  Hensley
properly found aggravator (c)(21) without submitting the issue to
a jury.
          In  addition to aggravator (c)(21), Tyler also conceded
aggravator (c)(20)  that he was on felony parole or probation  at
the  time  of  his  current offense.  Tyler  argues  that,  under
Blakely,  aggravator (c)(20) must be submitted  to  a  jury.   He
contends  that the right to jury trial stems from the fact  that,
when a defendants parole or probation arises from an out-of-state
conviction,  the sentencing court will sometimes be  required  to
make a ruling regarding the elements of the out-of-state offense,
          and whether those elements are similar to the elements of a
felony  offense  under  Alaska law.   Tyler  argues  that,  under
Blakely, such issues must be submitted to a jury.
          We  are  not  sure  that  this  is  true.   The  issues
discussed in the previous paragraph appear to be issues  of  law,
not  issues  of  fact.   But in any event, all  of  Tylers  prior
convictions  occurred in Alaska, so his case does not  raise  the
problem  he  describes.         Moreover, Tyler did  not  dispute
that  he  was  on felony parole or probation at the time  of  his
present offense.  We have repeatedly held that, when the evidence
establishing  an  aggravator  is  undisputed,  and  there  is  no
reasonable  possibility that a jury would find in the  defendants
favor  on the aggravator, any potential Blakely error in  failing
to  submit  the  aggravator  to  a  jury  is  harmless  beyond  a
reasonable  doubt and, thus, does not constitute  plain  error.14
Tylers case is controlled by this rule.
          Tyler  further argues that Almendárez-Torres v.  United
States15   the  Supreme Court decision that exempts a  defendants
prior  convictions  from the requirement of a  jury  trial  under
Blakely  has now become questionable authority.
          Almendárez-Torres   was   a   five-to-four    decision.
Recently, in Shepard v. United States,16 Justice Thomas suggested
that  Almendárez-Torres has been eroded by this Courts subsequent
Sixth Amendment jurisprudence, and [that] a majority of the Court
now  recognizes  that  Almendárez-Torres was  wrongly  decided.17
Because Justice Thomas was a member of the five-judge majority in
Almendárez-Torres, Tyler argues that it is now only a  matter  of
time  before  the  Supreme Court renounces Almendárez-Torres  and
eliminates the Blakely exception for prior convictions.
          Tyler urges us to anticipate this change in the law and
declare  that, even when an aggravator is proved by a  defendants
prior  convictions, the aggravator must be submitted to  a  jury.
But  the  United States Supreme Court has cautioned lower  courts
that  they should not deviate from Supreme Court precedent,  even
when the Supreme Courts later decisions seemingly invalidate that
precedent or call it into question:
          
               [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,  [a] Court of  Appeals  should
          follow  the  case  which  directly  controls,
          leaving  to  this  Court the  prerogative  of
          overruling its own decisions.18
          
          It  is obvious that Justice Thomass
concurrence  in Shepard casts  doubt  on  the
continuing  validity of the prior  conviction
exception.   Nevertheless, all of the  courts
that   have   confronted  this   issue   have
concluded  that  they are  bound  by  Supreme
Court  precedent  i.e., bound  by  the  prior
conviction exception applied in Apprendi  and
Blakely   unless and until the United  States
          Supreme Court actually modifies or eliminates
this exception.19
          In  light of the case law  we  have
just  discussed, Judge Hensley did not commit
error  when he relied on the prior conviction
exception   in   Blakely.    This   exception
continues  to be the law of the  land  unless
and  until  the  United States Supreme  Court
expressly abandons or modifies it.

          Conclusion
          The  judgment of the superior court
is AFFIRMED.

_______________________________
  1 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

  2  AS  28.35.030(n),  AS 28.35.032(p), and AS  28.15.291(a)(1),
respectively.

  3 See former AS 12.55.125(e)(2).

  4  Tyler  v. State, Alaska App. Memorandum Opinion and Judgment
No. 4820 at 2-3 (Jan. 28, 2004), 2004 WL 178715 at *1.

  5 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

  6 See Paige v. State, 115 P.3d 1244, 1248 (2005).

  7 685 P.2d 103 (Alaska App. 1984).

  8 Id. at 105.

  9 Id. at 105 n.3 (internal citations omitted).

  10 Blakely, 542 U.S. at 301, 124 S. Ct. at 2536-37.

  11 Id. at 301-03, 124 S. Ct. at 2537.

  12 118 P.3d 1080 (Alaska App. 2005).

  13  Id. at 1083.  See also Milligrock v. State, 118 P.3d 11, 15
(Alaska App. 2005).

  14  See  Snelling  v. State, 123 P.3d 1096, 1099  (Alaska  App.
2005); Milligrock, 118 P.3d at 17.

  15 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).

  16 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).

  17 Shepard, 125 S. Ct. at 1264 (Thomas, J., concurring).

  18  Agostini  v. Felton, 521 U.S. 203, 237, 117  S.  Ct.  1997,
2017,  138  L. Ed. 2d 391 (1997) (quoting Rodríguez de Quijas  v.
Shearson / American Express, Inc., 490 U.S. 477, 484, 109 S.  Ct.
1917, 1921-22, 104 L. Ed. 2d 526 (1989)).
19See United States v. Rodríguez-Montelongo, 263 F.3d 429, 434
(5th  Cir.  2001)  (declaring that it  is  a  court  of
appeals duty to apply the law as it exists, and that it
is  solely  the  prerogative of the  Supreme  Court  to
overrule its precedent if it chooses); United States v.
Davis,  260  F.3d 965, 969 (8th Cir. 2001) (It  is  our
role to apply Supreme Court precedent as it stands, and
not  as  it  may  develop.); United States  v.  Losoya-
Mancías,  332  F.  Supp. 2d 1261,1265 (D.  N.D.  2004);
United  States v. Gebele, 117 F. Supp. 2d  540,  548-49
(W.D.  Va.  2000)  (the fact that  a  majority  of  the
Supreme  Court  may  have expressed  doubt  as  to  the
validity  of  the prior conviction exception  does  not
affect  its  status as controlling law; a  lower  court
cannot   ignore  Supreme  Court  precedent  by   simply
counting Justices or 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  that  even  though   recent
decisions have cast doubt on the continuing validity of
this   exception,  it  is  solely  the  Supreme  Courts
prerogative  to  overrule its own decisions,  and  thus
other  courts  are  bound  to  follow  the  law  as  it
currently exists).

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