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Cleveland v. State (8/25/2006) ap-2060

Cleveland v. State (8/25/2006) ap-2060

     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


STEVEN CLEVELAND, )
) Court of Appeals No. A-9054
Appellant, ) Trial Court No. 2KB-00-726 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2060 August 25, 2006
)
          Appeal  from the Superior Court, Second  Judi
          cial  District, Kotzebue, Richard H.  Erlich,
          Judge.

          Appearances:   Robert  D.  Lewis,   Lewis   &
          Thomas, Nome, for the Appellant.  Timothy  W.
          Terrell,  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.

          MANNHEIMER, Judge.

          During  the  weekend  of November 17-19,  2000,  Steven
Cleveland forcibly sexually penetrated his female cousin  through
her  rectum  with an object that was some four to six  inches  in
diameter.   In doing so, Cleveland inflicted serious and  lasting
internal injuries on his cousin.  For this conduct, Cleveland was
convicted  of both second-degree sexual assault and second-degree
assault.1   Cleveland  was also convicted of  one  other  felony:
manufacturing alcoholic beverages without a license  in  a  commu
          nity that had voted to ban alcoholic beverages.2  We affirmed
Clevelands  three  felony convictions and his  19-year  composite
term  of  imprisonment in Cleveland v. State, 91 P.3d 965 (Alaska
App. 2004).
          Three  months after we affirmed Clevelands convictions,
Cleveland  filed  a  motion in the superior  court  under  Alaska
Criminal Rule 35(a), claiming that his sentence was illegal.   In
his  motion,  Cleveland  argued that he  had  been  sentenced  in
violation  of  his  right to a jury trial  under  the  Sixth  and
Fourteenth  Amendments  to  the United  States  Constitution,  as
interpreted by the United States Supreme Court in Apprendi v. New
Jersey  and  Blakely v. Washington.3  See also Booker  v.  United
States.4   As we explain in more detail below, Clevelands  motion
was  based  on the fact that his case was governed by presumptive
sentencing.    Cleveland  asserted  that  the  sentencing   judge
improperly increased his presumptive terms of imprisonment  based
on  aggravating  factors that should have  been  (but  were  not)
presented to a jury.
          The   superior  court  denied  Clevelands  motion,  and
Cleveland now appeals the superior courts decision.  We  conclude
that  Clevelands sentencing procedures did not violate the  right
to  jury trial as interpreted in Blakely.  Our reasoning has  two
steps.
          First, as we explain here, the superior court relied on
seven  aggravating  factors listed in AS  12.55.155(c)  when  the
court  sentenced  Cleveland.  Of these seven  aggravators,  three
were  based  on  Clevelands prior criminal  convictions:   (c)(7)
that Cleveland had a prior conviction for a felony that was of  a
more  serious  class  than  his current  felonies;  (c)(8)   that
Cleveland  had  a  history of repeated assaultive  behavior;  and
(c)(18)(B)   that Cleveland had committed a prior sexual  assault
on another victim.  Under Blakely, aggravating factors based on a
defendants prior criminal convictions need not be presented to  a
jury.   Moreover, another two aggravators  (c)(1) (infliction  of
physical  injury)  and  (c)(5) (particularly  vulnerable  victim)
flowed  directly  from  the jurys verdicts at  Clevelands  trial.
Thus, even after Blakely, the superior court could properly  rely
on these aggravators.
          Second,  under the pre-2005 version of AS 12.55.155(a),
any  one  of these five aggravating factors, standing alone,  was
sufficient to empower the superior court to exceed the applicable
presumptive   term  and  sentence  Cleveland  to  any   term   of
imprisonment up to the maximum provided by law for his  offenses.
Once   the   judge  found  any  one  of  these  Blakely-compliant
aggravators, the presence or absence of the other aggravators did
not   affect  the  judges  sentencing  authority  under   Alaskas
presumptive sentencing law.
          In  sum, the superior court had the authority to impose
Clevelands  sentences  without  submitting  any  further  factual
issues  to  a jury.  For this reason, the court correctly  denied
Clevelands Rule 35(a) motion.

     A more detailed look at Clevelands sentencing
     
          Because Cleveland had been convicted  of  two
          felonies before he committed the crimes in this case,
he  faced  sentencing as a third felony offender  under
Alaskas   presumptive  sentencing  law.   And   because
Cleveland  was  a  third  felony  offender,  he   faced
presumptive  terms  for each of his three  offenses  in
this  case.   Under  the pre-2005  version  of  Alaskas
presumptive  sentencing law (or, more precisely,  under
the  version of the presumptive sentencing law that was
in effect until March 22, 2005),5 Cleveland was subject
to  a  6-year presumptive term of imprisonment for  the
offense of second-degree sexual assault, another 6-year
presumptive  term of imprisonment for  the  offense  of
second-degree  assault, and a 3-year  presumptive  term
for the alcohol violation.6
          At  Clevelands sentencing hearing, the  State
proposed    eight   aggravating   factors   under    AS
12.55.155(c): (c)(1)  that Clevelands victim  sustained
physical  injury;  (c)(2)  that Cleveland  demonstrated
deliberate   cruelty  to  the  victim;   (c)(4)    that
Cleveland used a dangerous instrument in furtherance of
the  offense;  (c)(5)   that Cleveland  knew  that  his
victim was particularly vulnerable; (c)(7)  that one of
Clevelands  prior felonies was of a more serious  class
of  offense  than  his  present  crimes;  (c)(8)   that
Clevelands  criminal  history  included  aggravated  or
repeated instances of assaultive conduct; (c)(10)  that
Clevelands conduct in committing the  physical  assault
was  among  the  most serious within the definition  of
that   offense,  because  Clevelands  conduct  actually
amounted to first-degree assault; and (c)(18)(B)   that
Cleveland   had   committed  another   sexual   assault
involving another victim.
          Cleveland  conceded five  of  these  factors:
(c)(1),   (c)(5),   (c)(7),  (c)(8),  and   (c)(18)(B).
Superior  Court Judge Richard H. Erlich concluded  that
the  State  had  failed  to prove  proposed  aggravator
(c)(2),  but  he  found that the State had  proved  the
remaining  two aggravators:  (c)(4)  use of a dangerous
instrument, and (c)(10)  conduct among the most serious
within the definition of the offense.7
          Based   on  these  seven  aggravators,  Judge
Erlich  sentenced  Cleveland to  serve  10  years  (the
maximum term of imprisonment) for second-degree  sexual
assault  and another 10 years (again, the maximum  term
of  imprisonment)  for  second-degree  assault.   Judge
Erlich  also  sentenced  Cleveland  to  serve  5  years
(again,  the  maximum  term of  imprisonment)  for  the
alcohol  violation.  However, Judge Erlich  made  these
sentences  partially  concurrent,  so  that  Clevelands
composite term of imprisonment was 19 years rather than
25 years.8

The  United States Supreme Courts decisions in Apprendi
v.  New  Jersey,  Blakely v. Washington, and Booker  v.
United States

          In  Apprendi v. New Jersey, the United States
Supreme Court held that when the maximum sentence for a
defendants crime hinges on an issue of fact other  than
the  defendants prior criminal convictions, that  issue
of  fact must be presented to, and decided by, a jury.9
In  Blakely v. Washington and Booker v. United  States,
the Supreme Court extended this principle to the issues
of  fact  that determine a defendants maximum  sentence
under  a  presumptive sentencing or  other  determinate
sentencing scheme.10
          The  problem  presented in Blakely  was  that
Washington  law  provided a technical maximum  sentence
for  Blakelys crime, but Blakelys sentencing judge  had
no authority to impose that maximum sentence unless the
judge  found certain aggravating factors.   The  United
States  Supreme Court held that Blakelys  true  maximum
sentence (for Sixth Amendment purposes) was the  lesser
sentence  that  represented the ceiling on  the  judges
sentencing  authority  in the  absence  of  aggravating
factors.11
          In  several recent decisions, this Court  has
acknowledged   that   Alaskas   pre-2005    presumptive
sentencing  law  violated  the  right  to  jury   trial
announced in Blakely.  Here, for instance, is  what  we
said  about this issue in Milligrock v. State, 118 P.3d
11 (Alaska App. 2005):
     
          Alaskas  pre-2005 presumptive sentencing
     laws  are  directly affected by  the  Blakely
     decision   because, under those  laws,  if  a
     felony defendant was subject to a presumptive
     term of imprisonment, the superior court  had
     no   authority  to  increase  that  term   of
     imprisonment   (even  by  the   addition   of
     suspended  imprisonment)  unless  the   State
     proved one or more of the aggravating factors
     listed  in  AS  12.55.155(c), or  unless  the
     State  proved extraordinary circumstances  as
     defined in AS 12.55.165.
     
          .  .  .
     
          Under   Alaskas   pre-2005   presumptive
     sentencing law, proof of aggravating  factors
     (or  proof  of  extraordinary  circumstances)
     expanded the range of sentences available  to
     the   superior   court  (to  the   defendants
     detriment).  Blakely holds that, under such a
     sentencing scheme, a defendant has the  right
     to  a  jury trial on these factors (with  the
     exception  of prior convictions).  But  under
     Alaskas pre-2005 presumptive sentencing laws,
     all  rulings  on  aggravating and  mitigating
     factors,  and  all  rulings on  extraordinary
          circumstances  (whether   favoring   the
     government  or the defendant), were  made  by
     the sentencing judge.  Thus, Alaskas pre-2005
     presumptive  sentencing  laws  provided   for
     sentencing procedures that violated the Sixth
     Amendment as interpreted in Blakely.
Milligrock, 118 P.3d at 14-15.12
          Nevertheless, as we explain in the next section of this
opinion, there was no Blakely problem with respect to five of the
seven  aggravators that Judge Erlich relied on when he  sentenced
Cleveland.

     Three  of  the  aggravating factors that  Judge  Erlich
     relied  on  at  Clevelands sentencing fall  within  the
     Blakely  exception for prior criminal convictions,  and
     two more of the aggravators necessarily follow from the
     jurys verdicts
     
               Aggravator  (c)(7) was one of the aggravating
     factors that Judge Erlich relied on in Clevelands case.
     This  aggravator applies when the defendant has a prior
     conviction  for a felony of a more serious  class  than
     the  defendants  current offenses.  In  Milligrock,  we
     held  that, because of the Blakely exception for  prior
     convictions, a defendant has no right to a  jury  trial
     on aggravating factor (c)(7).   Milligrock, 118 P.3d at
     16.   Thus, there was no Blakely error with respect  to
     aggravator (c)(7).
               In  addition, Milligrock holds that there  is
     no   Blakely   problem  with  aggravator  (c)(8)    the
     aggravator  that  applies when  a  defendants  criminal
     history  includes aggravated or repeated  instances  of
     assaultive  conduct   if  the  States  proof  of   this
     aggravating  factor  rests  on  the  defendants   prior
     convictions,   rather   than   on   unprosecuted    (or
     unsuccessfully prosecuted) acts of assault.  Id. at 16.
          In  Clevelands  case,  the  States  proof  of
aggravator   (c)(8)  was  based  on  Clevelands   prior
criminal  convictions.  As we noted in our decision  of
Clevelands  direct appeal, Cleveland was  convicted  of
second-degree  assault  in 1980 for  attacking  someone
with a screwdriver, and he also had several misdemeanor
assault  convictions.13  For this reason, Judge  Erlich
could   properly   find   aggravator   (c)(8)   without
submitting the matter to a jury.
          In  addition, the analysis that we adopted in
Milligrock means that there is no Blakely problem  with
respect   to   aggravating   factor   (c)(18)(B)    the
aggravator that applies if the defendant has previously
committed another sexual assault  so long as the States
proof  of  this aggravator is based on a prior criminal
conviction.  It is true that Milligrock did not address
aggravator   (c)(18)(B)  directly.    But   Milligrocks
discussion  of  how  the Blakely  exception  for  prior
convictions  applies to aggravator  (c)(8)  is  equally
          applicable to aggravator (c)(18)(B).
          In  Clevelands  case,  the  States  proof  of
aggravator  (c)(18)(B) was based  on  Clevelands  prior
conviction  for  sexual  assault.   As  we   noted   in
Clevelands  prior  appeal, Cleveland was  convicted  of
first-degree  sexual  assault in 1985  for  raping  his
sister-in-law.14  Thus, there was no Blakely error with
respect to aggravator (c)(18)(B).
          Moreover,  there  was no Blakely  error  with
respect to aggravating factor (c)(1)  that, during  the
commission  of  the  offense,  the  defendant  directly
inflicted  physical  injury   because  this  aggravator
necessarily  followed  from the jurys  verdict  finding
Cleveland guilty of second-degree assault.
          The  jury  found  Cleveland  guilty  of  both
second-degree sexual assault and second-degree  assault
based  on  the  same incident.  Because  Cleveland  was
convicted  of  second-degree assault  under  subsection
(a)(2)  of AS 11.41.210, which requires proof that  the
defendant  caused  serious physical  injury,  the  jury
necessarily found that the victim of Clevelands assault
sustained  physical injury during the  sexual  assault.
Accordingly,  there  was no Blakely  error  when  Judge
Erlich  relied  on  aggravator (c)(1)  when  sentencing
Cleveland for second-degree sexual assault.15
          (The  superior  court  apparently  recognized
that  aggravator  (c)(1)  applied  only  to  Clevelands
conviction for second-degree sexual assault, and not to
Clevelands   conviction   for  second-degree   physical
assault.   Under  AS 12.55.155(e), this aggravator  did
not  apply  to  Clevelands conviction for second-degree
physical assault because infliction of physical  injury
was an essential element of that offense.)
          We acknowledge that Judge Erlichs reliance on
aggravator (c)(1) when sentencing Cleveland for second-
degree sexual assault apparently violated the rule that
we  announced in Juneby v. State, 641 P.2d 823,  842-43
(Alaska  App.  1982)  the rule that a sentencing  court
should not rely on an aggravating factor that is  based
on  conduct for which the defendant is being separately
sentenced.   However,  Cleveland has  not  raised  this
issue;  he is attacking his sentence solely on  Blakely
grounds.   Even  though Judge Erlich may have  violated
the  Juneby  rule, the judges action  did  not  violate
Clevelands right to jury trial under Blakely.
          For  similar  reasons, there was  no  Blakely
error   with  respect  to  aggravating  factor   (c)(5)
particularly vulnerable victim  because this aggravator
necessarily  followed  from the jurys  verdict  finding
Cleveland guilty of second-degree sexual assault.
          The  State  charged  Cleveland  with  second-
degree sexual assault under AS 11.41.420(a)(3)(B); that
is,  the State alleged that Cleveland engaged in sexual
penetration with the victim when he knew that  she  was
incapacitated. (The term incapacitated is defined in AS
          11.41.470(2) as meaning temporarily incapable of
appraising the nature of ones own conduct or physically
unable  to  express unwillingness to act.)  Thus,  when
the  jury  convicted Cleveland of this crime, the  jury
necessarily found that Cleveland knew that  his  victim
was incapacitated.
          To  prove aggravator (c)(5), the State had to
establish that Cleveland knew or reasonably should have
known that the victim of [his] offense was ... for  any
... reason substantially incapable of exercising normal
physical  or mental powers of resistance.  Because  the
jury  found  that Cleveland knew that  his  victim  was
incapacitated   (as  that  term  is   defined   in   AS
11.41.470(2)),  it necessarily follows  that  Cleveland
knew  that  his victim was substantially  incapable  of
exercising   normal  physical  or  mental   powers   of
resistance.
          In    other    words,   because    Clevelands
convictions for second-degree sexual assault and second-
degree  assault  were based on the same  incident,  and
because   the   second-degree  sexual  assault   charge
required proof that Cleveland knew that his victim  was
incapacitated, the jurys verdict necessarily entails  a
finding  of aggravator (c)(5)  a finding that Cleveland
knew  that  his victim was substantially  incapable  of
exercising  normal powers of resistance.   Accordingly,
there was no Blakely error when Judge Erlich relied  on
aggravator (c)(5).
          (Again,  as  was  the  case  with  aggravator
(c)(1),  the superior court apparently recognized  that
aggravator  (c)(5) applied to only one  of   Clevelands
convictions   in  this  instance,  his  conviction  for
second-degree physical assault.  Under AS 12.55.155(e),
this  aggravator did not apply to Clevelands conviction
for  second-degree sexual assault because  the  victims
incapacity was an essential element of that offense.)
          In   sum,  three  of  the  seven  aggravating
factors  that  Judge Erlich relied on  when  sentencing
Cleveland  fall within the Blakely exception for  prior
convictions, and two more of the aggravators are  based
directly on the jurys verdicts.
Given  the  proof  of  at  least one  Blakely-compliant
aggravating  factor, the presence or absence  of  other
aggravating factors is irrelevant for Blakely  purposes
under Alaskas pre-2005 presumptive sentencing law

          We  have just explained why five of the seven
aggravators  that  Judge  Erlich  relied  on  when   he
sentenced Cleveland pose no problem under Blakely.  The
question  that  remains is whether Clevelands  sentence
must  nevertheless be invalidated because the remaining
two  aggravating factors  (c)(4) and (c)(10)   arguably
rest  on  disputed issues of fact that are not resolved
by the jurys verdicts.
          We  say arguably because, under the facts  of
Clevelands case, we believe that a reasonable  argument
could  be  made  to the contrary; that  is,  one  might
possibly  conclude that the facts underlying these  two
aggravators  use of a dangerous instrument, and conduct
among  the  most serious within the definition  of  the
offense   flow  directly from the jurys  verdicts,  and
that any remaining issues relating to these aggravators
are  issues  of  law.16   But in  the  discussion  that
follows,  we  will assume that aggravators  (c)(4)  and
(c)(10)  rest on disputed issues of fact that were  not
resolved by the jurys verdicts.
          Blakely  holds  that  when,  under  a  states
sentencing laws, the upper limit of a judges sentencing
authority for a particular crime hinges on the proof of
facts aside from the defendants prior convictions,  the
Sixth  Amendment forbids the judge from relying on  any
fact that has been neither (a) tried to a jury nor  (b)
expressly admitted by the defendant.
     
     [T]he  statutory maximum [sentence]  for
[Sixth  Amendment] purposes  is  the  maximum
sentence  a  judge may impose solely  on  the
basis  of  the facts reflected  in  the  jury
verdict  or  admitted by the defendant.   ...
In   other   words,  the  relevant  statutory
maximum  is not the maximum sentence a  judge
may  impose  after finding additional  facts,
but  the  maximum he may impose  without  any
additional  findings.  When a judge  inflicts
punishment that the jurys verdict alone  does
not  allow, ... the judge exceeds his  proper
authority.

Blakely,  542  U.S. at 303-04, 124  S.Ct.  at
2537 (emphasis in the original).
          The  specific problem presented  in
the Blakely case itself was that, even though
Washington  law provided a technical  maximum
sentence   for   Blakelys   crime,   Blakelys
sentencing judge had no authority  to  impose
that  maximum sentence unless the judge found
aggravating  factors  facts relating  to  the
defendants  conduct  or  mental  state,   the
defendants   criminal  history,   and   other
circumstances    surrounding    the    crime.
Because,  as  a  practical  matter,  Blakelys
potential  maximum  sentence  hinged  on  the
presence   or  absence  of  these  additional
aggravating facts, the United States  Supreme
Court held that Blakely had a Sixth Amendment
right  to have a jury decide these issues  of
fact.   And, because Washington law  did  not
give Blakely a right to a jury trial on these
issues,  the Supreme Court held that Blakelys
true  maximum  sentence (for Sixth  Amendment
          purposes) was the lesser sentence that
represented   the  ceiling  on   the   judges
sentencing  authority in the absence  of  the
aggravating factors.
          As  we  explained earlier  in  this
opinion,    Alaskas   pre-2005    presumptive
sentencing   law  suffered  from   the   same
constitutional   flaw   as   the   Washington
sentencing law at issue in Blakely.17   Under
our   pre-2005  law,  when  a  defendant  was
subject   to   presumptive  sentencing,   the
sentencing   judge  could  not   exceed   the
prescribed  presumptive term of  imprisonment
unless  the State proved one or more  of  the
aggravating    factors    listed    in     AS
12.55.155(c),  or  unless  the  State  proved
extraordinary  circumstances  as  defined  in
AS  12.55.165.   All rulings  on  aggravating
factors and extraordinary circumstances  were
made  by the sentencing judge, not by a jury,
and  the  applicable standard  of  proof  was
clear  and convincing evidence, not beyond  a
reasonable  doubt.   Thus,  Alaskas  pre-2005
presumptive   sentencing  law  provided   for
sentencing procedures that violated the Sixth
Amendment as interpreted in Blakely.
          But  although the prior  sentencing
laws  of  Washington and Alaska both violated
the  right  to  jury trial as interpreted  in
Blakely,  there was a substantial  difference
in the structure of the two states sentencing
schemes.
          Under  Washingtons sentencing laws,
each  aggravating factor required a  separate
adjustment  to  the defendants  sentence  (or
range  of sentences).  Thus, the presence  or
absence    of   each   and   every   disputed
aggravating   factor   altered   the   judges
sentencing authority.  But under Alaskas pre-
2005 sentencing laws, the proof of any single
aggravating factor gave the sentencing  judge
the   authority  to  impose   any   term   of
imprisonment  up  to  the statutory  maximum.
Proof  of additional aggravating factors  did
not alter the range of sentences available to
the    judge    although   these   additional
aggravators  would obviously be important  to
the  judges  choice of sentence  within  that
sentencing range.
          Blakely  holds that a defendant  is
entitled  to  a  jury trial on  any  disputed
factual  issue  that will alter  the  maximum
sentence to the defendants detriment.   Under
Washington  law,  that was every  aggravating
factor   because, regardless  of  what  other
          aggravating factors might be proved, each
individual  aggravating factor called  for  a
separate   adjustment   of   the   defendants
sentencing range.  But under pre-2005  Alaska
law, the defendants sentencing range did  not
depend  on each separate aggravator.  Rather,
the crucial distinction was between (a) cases
where  no  aggravators were proved,  and  (b)
cases  where  at  least  one  aggravator  was
proved.
          Because of this, we conclude  that,
for  cases  governed  by  our  states  former
presumptive   sentencing   law   (i.e.,   the
presumptive sentencing law that was in effect
until  March 22, 2005), the defendants  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  jurys  verdict, or is  admitted  by  the
defendant,  or  is  based on  the  defendants
prior convictions.

(a)   The Washington sentencing laws that were  at
issue in Blakely

     Under  pre-Blakely Washington  law,18   every
criminal offense was assigned a seriousness  level
from   I   (least  serious)  to  XVI   (aggravated
murder).19   Once  the seriousness  level  of  the
defendants  crime was identified,  the  sentencing
judge  consulted a sentencing grid20 to  determine
the  range of permissible sentences.  For each  of
the  sixteen  seriousness levels, this  sentencing
grid provided ten potential sentencing ranges.  To
identify which sentencing range applied, the judge
needed to determine the defendants offender score.
          For  example,  the defendant in  Blakely  was
convicted of second-degree kidnapping.21  This  offense
has a seriousness level of V.22  Here is the sentencing
grid for a level V offense:23

                    Offender Score
                                                            
                                                            9
                                                            o
                                                            r
     0
                                                       1
                                                       2
                                                       3
                                                       4
                                                       5
                                                       6
                                                       7
                                                       8
                                                       m
                                                       o
                                                       r
                                                       e
--------------------------------
-------------------------------------------------------
---------------

   9m     13m    15m    18m   2y-2m   3y-2m   4y     5y
   6y     7y

   6m-    12+-   13m-   15m-  22m-   33m-   41m-   51m-
62m-      72m-
   12m    14m    17m    20m   29m     43m    54m    68m
82m       96m


(In  this grid, the bottom two rows specify the minimum
and  maximum sentences of imprisonment  in months   for
each offender score; the upper row is the mid-point  of
this range.)
          To determine a defendants offender score, the
sentencing  judge  consulted  a  statute   former   RCW
9.94A.525  that laid out the rules for performing  this
calculation.   The defendant received points  based  on
the  number  of  the defendants prior convictions,  the
types  of crime represented by those prior convictions,
and certain other aggravating factors.  If the facts of
the  defendants record were in dispute, the  sentencing
judge  resolved  these  issues  of  fact,  applying   a
preponderance of the evidence standard of proof.24
          Once   the  defendants  offender  score   was
determined,   the   defendant  was   subject   to   the
presumptive  range  of imprisonment  specified  in  the
sentencing   grid.   For  example,  in   Blakely,   the
defendants  offender score was 2  meaning that  Blakely
faced a presumptive sentencing range of 13 to 17 months
imprisonment.25
          However,   another   statute    former    RCW
9.94A.533(3)  declared that the presumptive  sentencing
range  specified  in  the sentencing  grid  was  to  be
augmented  by  an additional amount of imprisonment  if
the  defendant  or  an  accomplice  was  armed  with  a
firearm.   In  Blakelys case, this augmentation  was  3
years  (i.e.,  36 months).26  This firearm augmentation
meant that Blakely faced a sentencing range of 49 to 53
          months.
          Moreover,  yet  another statute   former  RCW
9.94A.535  authorized sentencing judges to depart  from
the  prescribed sentencing range if the judge concluded
that  there  were  substantial and  compelling  reasons
justifying  an  exceptional  sentence.   That  is  what
happened in Blakelys case.  As explained by the  United
States Supreme Court, after the sentencing judge  heard
Blakelys  wife  describe  the  kidnapping,  the   judge
rejected  the  States  recommendation  and  imposed  an
exceptional  sentence of 90 months  in other  words,  a
sentence that exceeded the otherwise prescribed maximum
sentence by 37 months.27
  (b)  Alaskas pre-2005 sentencing laws

          Alaskas    pre-2005    sentencing    statutes
established   a   series   of  presumptive   terms   of
imprisonment  for  second and  third  felony  offenders
convicted of a class B or class C felony28 and for  all
offenders convicted of a class A felony or convicted of
the   unclassified  felonies  of  first-degree   sexual
assault or first-degree sexual abuse of a minor.29   In
the  absence of aggravating and mitigating factors, the
sentencing  judge was obliged to impose the  prescribed
presumptive term, without any adjustment.30
          Former  AS  12.55.155(a) declared that  if  a
defendant  was  subject to presumptive sentencing,  the
judge could increase the [prescribed] presumptive  term
up  to  the  maximum  term  of imprisonment  [for  that
offense] for factors in aggravation.  But proof of even
a  single aggravating factor was sufficient to  empower
the superior court to exceed the applicable presumptive
term  and  impose any term of imprisonment  up  to  the
maximum provided by law for the offense.31
          Thus,  Alaska took an all or nothing approach
to aggravating factors.  If no aggravating factors were
proved, the judge was obliged to impose the presumptive
term.   If  only  mitigating factors were  proved,  the
presumptive  term  became the  ceiling  on  the  judges
sentencing  authority.  But if one or more  aggravating
factors were proved, the sentencing judge was empowered
to impose any sentence up to the maximum prescribed for
that offense.

  (c)   The   effect  of  Blakely  on  the   proof   of
  aggravating    factors   under    Alaskas    pre-2005
  sentencing scheme

          The  basic  principle underlying the  Supreme
Courts  decisions in Apprendi v. New Jersey and Blakely
v.  Washington  is that the Sixth Amendment  forbids  a
legislature  from  enacting a scheme that  removes  the
jury  from the determination of a fact that, if  found,
exposes  [a] criminal defendant to a penalty  exceeding
the maximum he [might] receive if punished according to
          the facts reflected in the jury verdict alone.32
          This  principle limits the states ability  to
fashion determinate sentencing schemes, but it does not
alter  the  states  ability  to  fashion  indeterminate
sentencing schemes  i.e., sentencing schemes  in  which
the  judge  has the discretion to impose  any  term  of
imprisonment within a specified range of sentences.  As
this Court explained in Carlson v. State, 128 P.3d 197,
207  (Alaska  App. 2006), a sentencing judge  does  not
violate the Sixth Amendment [as interpreted in Blakely]
when the judge engages in fact-finding when choosing  a
sentence within [a] specified range.
          Blakely  does  not  regulate  or  restrict  a
sentencing judges traditional consideration of the many
factors that potentially affect the selection of a case-
appropriate  sentence  within the applicable  statutory
bounds.   Rather, Blakely addresses a defendants  right
to  a  jury  trial on the factual issues that establish
those applicable sentencing bounds.
          Here  is  how  Justice  Scalia,  writing   in
Blakely, explained this distinction:
     
     Indeterminate   sentencing   ...    increases
     judicial  discretion,  ...  but  not  at  the
     expense of the jurys traditional function  of
     finding   the  facts  essential   to   lawful
     imposition     of    the    penalty.      ...
     [I]ndeterminate [sentencing] schemes  involve
     judicial factfinding, in that a judge ... may
     implicitly  rule  on  those  facts  he  deems
     important  to the exercise of his  sentencing
     discretion.  But [these] facts do not pertain
     to whether the defendant has a legal right to
     a  lesser  sentence  and that makes  all  the
     difference   [on  the  issue   of]   judicial
     impingement upon the traditional role of  the
     jury.   ...  In a system that says the  judge
     may  punish burglary with [a sentence of]  10
     to  40  years,  every  burglar  knows  he  is
     risking 40 years in jail.  [But in] a  system
     that   punishes  burglary  with   a   10-year
     sentence, with another 30 added for use of  a
     gun, the burglar who enters a home unarmed is
     entitled  to no more than a 10-year  sentence
     and  by reason of the Sixth Amendment[,]  the
     facts  [that  authorize any higher  sentence]
     must be found by a jury.
     
     Blakely, 542 U.S. at 309, 124 S.Ct.  at  2450
     (emphasis in the original).33
               Thus,  Blakely limits the types  of
     determinate sentencing that states may adopt:
     if the maximum term of imprisonment within  a
     sentencing  judges  authority  hinges  on   a
     question  of fact (other than the  defendants
               prior convictions), the defendant is entitled
     to  have a jury decide that question of  fact
     (and  is  also  entitled to demand  that  the
     government   prove   this   fact   beyond   a
     reasonable  doubt).   But  Blakely  does  not
     affect   judicial  fact-finding   within   an
     indeterminate sentencing scheme.
          Alaskas  pre-2005  sentencing  laws
were    a    hybrid   of   determinate    and
indeterminate sentencing.
          When  no  aggravating or mitigating
factors  were  proved, the law declared  that
the   defendant  should  receive  a  specific
penalty:   the  prescribed presumptive  term.
And  if  one or more mitigating factors  were
proved,  but  no  aggravating  factors,  this
presumptive term became the effective ceiling
on  the judges sentencing authority (with the
judge   authorized   to   impose   a   lesser
sentence).
          But  if  at  least one  aggravating
factor  was  proved, there was  no  longer  a
constraint   on   the   defendants    maximum
sentence.  Upon proof of any aggravator,  the
judge had the authority to impose any term of
imprisonment  up  to  the maximum  punishment
prescribed  for that offense. At that  point,
Alaska  sentencing became indeterminate  with
regard to the defendants maximum sentence.
          As  we noted in Simon v. State, 121
P.3d  815,  820  (Alaska App. 2005),  several
states  with analogous presumptive sentencing
schemes  have  held that, once at  least  one
aggravating   factor  has  been   proved   in
conformity  with  Blakely (thus  establishing
the  sentencing judges authority to impose  a
sentence  within a higher range), Blakely  is
satisfied and any further fact-finding can be
done  by the sentencing judge.  See State  v.
Martínez, 115 P.3d 618, 625-26 (Ariz.  2005);
López  v.  People, 113 P.3d 713,  731  (Colo.
2005); Teeters v. State, 817 N.E.2d 275,  279
(Ind. App. 2004).
          The Arizona Supreme Courts decision
in   State   v.   Martínez  is   particularly
instructive.
          In  Arizona,  under the  sentencing
statutes  in  force at the time of  Martínezs
sentencing, the proof of a single aggravating
factor  authorized  the sentencing  judge  to
exceed  the  applicable presumptive  sentence
for  a  given  offense.34  In  Martínez,  the
sentencing   judge  found  eight  aggravating
factors using a preponderance of the evidence
standard   an apparent multiple violation  of
          Blakely.
          But   the  Arizona  Supreme   Court
concluded   that  at  least  one   of   these
aggravating   factors  was  Blakely-compliant
because it was implicit in the jurys verdict.
And because, under Arizona law, the existence
of   this  one  Blakely-compliant  aggravator
authorized the sentencing judge to impose any
term  of  imprisonment up  to  the  statutory
maximum  for  Martínezs crimes,  the  Arizona
Supreme Court concluded that Blakely did  not
limit the sentencing judges consideration  of
the  other aggravating factors when  deciding
what   sentence   to   impose   within   this
sentencing range.35  The court explained:

     The Sixth Amendment requires that a jury
find   beyond  a  reasonable  doubt,   or   a
defendant admit, any fact (other than a prior
conviction) necessary to establish the  range
within   which  a  judge  may  sentence   the
defendant.  If, however, additional facts are
relevant  merely to the exercise of a  judges
discretion   in  determining   the   specific
sentence  to impose on a defendant  within  a
given  statutory sentencing range, the  Sixth
Amendment  permits the judge  to  find  those
facts by a preponderance of the evidence.

Martínez,  115 P.3d at 625 (emphasis  in  the
original).
          Alaskas  pre-2005  sentencing  laws
were written according to the same pattern as
the Arizona laws at issue in Martínez, and we
conclude  that  the  result  reached  by  the
Arizona  Supreme  Court is also  the  correct
result   under  Alaskas  pre-2005  sentencing
laws.
          Under our pre-2005 sentencing laws,
the  proof  of  a  single aggravating  factor
changed the defendants sentencing range,  and
this   change   in   the  judges   sentencing
authority was exactly the same regardless  of
the  number  of  aggravating factors  proved.
Under   such  a  sentencing  scheme,  Blakely
governed the proof of the aggravating  factor
that altered the sentencing judges authority.
But   once   one  or  more  Blakely-compliant
aggravating   factors   were   proved,    the
sentencing judge was empowered to impose  any
sentence  up  to the statutory  maximum.   At
that    point,   the   existence   of   other
aggravating factors might well influence  the
judges  selection  of  a particular  sentence
within  this  authorized range   but  Blakely
          does not affect this type of judicial fact-
finding.

Conclusion

     In  Clevelands  case,  the  sentencing  judge
found seven aggravating factors.  At least five of
these aggravators were Blakely-compliant.  Because
of  this, it does not matter whether the remaining
two   aggravators  were  Blakely-compliant.    The
judges sentencing authority remained the same.
     For  these  reasons,  we  conclude  that  the
superior court correctly denied Clevelands  motion
for  correction  of sentence under  Criminal  Rule
35(a).   The  judgement of the superior  court  is
AFFIRMED.

_______________________________
     1AS 11.41.420(a)(3)(B) and AS 11.41.210(a)(2), respectively.

2AS 04.11.010 and AS 04.16.200(b).

     3Apprendi,  530  U.S. 466, 120 S.Ct. 2348, 147  L.Ed.2d  435
(2000);
          Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d  403
(2004).

     4543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

5In  SLA 2005, ch. 2 (effective March 23, 2005), the  Alaska
legislature   extensively  revised  our  states  presumptive
sentencing law in an effort to make it comply with Blakely.

6Cleveland, 91 P.3d at 981-82.

7Id. at 982.

8Id.

9Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.

10Blakely, 542 U.S. at 301-04, 124 S.Ct. at 2536-37.

11Id., 542 U.S. at 303-04, 124 S.Ct. at 2537.

12See  also  Moore  v. State, 123 P.3d 1081,  1091  (Alaska  App.
2005); Haag v. State, 117 P.3d 775, 782-83 (Alaska App. 2005).

13Cleveland, 91 P.3d at 981.

14Id.

15See  Woods  v. State, 667 P.2d 184, 187-88  (Alaska  1983)
(holding that, because physical injury to the victim is  not
a  necessary element of first-degree sexual assault, a judge
can  properly  consider aggravator (c)(1) when sentencing  a
defendant for this crime).

16See Michael v. State, 115 P.3d 517, 519-520 (Alaska 2005).

17See, e.g., Moore v. State, 123 P.3d 1081, 1091 (Alaska
App.  2005);  Milligrock v. State, 118 P.3d  11,  14-15
(Alaska App. 2005): Haag v. State, 117 P.3d 775, 782-83
(Alaska App. 2005).

18Revised Code of Washington, Chapter 9.94A  the Sentencing
Reform Act of 1981.

19See RCW 9.94A.515, Table 2 (listing the crimes included
within each seriousness level).

20See RCW 9.94A.510, Table 1.

21Blakely, 542 U.S. at 298-99, 124 S.Ct. at 2534-35.

22See RCW 9.94A.515, Table 2.

23See RCW 9.94A.510, Table 1.

24Former RCW 9.94A.530(2) (the version in effect at the time
of Blakelys case).  The pertinent part of this statute read:
Where the defendant disputes material facts, the court  must
either not consider the fact or grant an evidentiary hearing
on  the  point.   The facts shall be deemed  proved  at  the
hearing by a preponderance of the evidence.

25Blakely, 542 U.S. at 299, 124 S.Ct. at 2535.

26Id.; former RCW 9.94A.533(3)(b).

27Blakely, 542 U.S. at 300, 124 S.Ct. at 2535.

28Former AS 12.55.125(d) and (e) (pre-2005 versions).

29Former AS 12.55.125(c) and 125(i) (pre-2005 versions).

30Milligrock v. State, 118 P.3d 11, 14 (Alaska  App.  2005).
Each  pertinent subsection of former AS 12.55.125  (pre-2005
version)  declared  that  a  defendant  convicted  of   that
particular class of felony offense shall be sentenced to the
following  presumptive  terms,  subject  to  adjustment   as
provided  in AS 12.55.155  12.55.175 (emphasis added)   that
is, subject to adjustment for the aggravating and mitigating
factors  listed in AS 12.55.155(c)-(d), or for extraordinary
circumstances as defined in AS 12.55.165.

31Reyes v. State, 978 P.2d 635, 641-42 (Alaska App. 1999).

32Apprendi, 530 U.S. at 482-83, 120 S.Ct. at 2359; see  also
Blakely, 542 U.S. at 301, 124 S.Ct. at 2536.

33See  also Harris v. United States, 536 U.S. 545, 565;  122
S.Ct.  2406, 2418; 153 L.Ed.2d 524 (2002), where the Supreme
Court  declared  that  [sentencing judges]  may  impose  the
minimum, the maximum, or any other sentence within the range
[authorized by the juries verdicts] without seeking  further
authorization  from those juries  and without  contradicting
Apprendi.

34Arizona Revised Statutes  13-702.

35Martínez, 115 P.3d at 625-26.

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