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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MAUREEN ALICE MALLOY, | ) |
| ) Court of Appeals No. A-9011 | |
| Appellant, | ) Trial Court No. 3AN-95-9983 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2085 March 2, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Dan S. Bair, Assistant Public
Advocate, and Chad W. Holt, Supervising
Assistant Public Advocate, Anchorage, for the
Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to revisit an issue that
was decided by the Alaska Supreme Court in State v. Malloy, 46
P.3d 949 (Alaska 2002) (an earlier stage of this same case).
Under AS 12.55.125(a)(3), a defendant convicted of first-degree
murder faces a mandatory minimum 99-year term of imprisonment,
with no possibility of discretionary parole, if the sentencing
judge finds by clear and convincing evidence that the defendant
subjected the victim to substantial physical torture. The
question is whether this statute violates a criminal defendants
right to trial by jury and the defendants right to demand proof
beyond a reasonable doubt because, under the statute, this
mandatory sentence hinges on an issue of fact that is decided by
a judge (rather than a jury) using a clear and convincing
evidence standard of proof.
In 2002, based on the United States Supreme Courts
decision in Apprendi v. New Jersey,1 and on its own earlier
decision in Donlun v. State,2 the Alaska Supreme Court held that
this sentencing statute was constitutional that it did not
violate a defendants right to jury trial. Malloy, 46 P.3d at
957.
But two years later, in Blakely v. Washington,3 the
United States Supreme Court issued a more expansive
interpretation of Apprendi. The defendant in this case, Maureen
Alice Malloy, argues that the Blakely decision now shows that the
Alaska Supreme Courts decision was wrong that the first-degree
murder sentencing statute is, indeed, unconstitutional to the
extent that it imposes a 99-year mandatory minimum sentence based
on an issue of fact decided by the sentencing judge.
For the reasons explained here, we conclude (1) that
Malloys position is wrong as a matter of federal constitutional
law, and (2) that we have no authority to alter the Alaska
Supreme Courts resolution of this jury trial issue under Alaska
constitutional law.
This appeal also raises a separate issue that neither
we nor the Alaska Supreme Court addressed in the earlier round of
appellate litigation. Not only does the sentencing judges
finding of substantial physical torture trigger a mandatory
minimum 99-year term of imprisonment with no possibility of
discretionary parole, but it also triggers another consequence:
the defendant does not accrue good time credit under
AS 33.20.010(a) and, thus, the defendant will never be released
on mandatory parole under the provisions of AS 33.20.030 040.
This problem was not addressed in the parties original
briefs. When we became aware of this issue, we directed the
parties to file supplemental briefs on the question of whether,
under Blakely, the State is prohibited from imposing this denial
of good time credit unless the aggravating circumstance is
submitted to a jury (and proved beyond a reasonable doubt).
In its supplemental brief, the State has conceded that
Malloy is not subject to this denial of good time credit, but on
a separate ground from the Blakely issue that we asked the
parties to address.
The particular clause of AS 33.20.010(a) that denies
good time credit to first-degree murder defendants who receive a
mandatory 99-year sentence did not take effect until June 1996
about seven months after Malloy committed her offense. The State
therefore admits that, apart from any jury trial problem under
Apprendi and Blakely, application of this statute to Malloy would
violate the constitutional guarantee against ex post facto penal
laws.
For the reasons explained here, we accept the States
concession of error. We therefore do not reach the issue of
whether this statutory provision violates the right to jury trial
as interpreted in Apprendi and Blakely.
Finally, Malloy received the statutory maximum sentence
of 5 years imprisonment for the class C felony of tampering with
evidence. The superior court had no authority to impose this
sentence in the absence of aggravating factors, and the record
does not disclose any obvious Blakely-compliant aggravators. We
therefore vacate Malloys sentence for evidence tampering, and we
direct the superior court to re-sentence her in conformity with
Blakely.
Background facts and prior legal proceedings
During early November 1995, Maureen Alice
Malloy restrained another woman, K.H., in a motel room
in Spenard. For more than a week, Malloy inflicted
many brutal physical and sexual assaults on K.H., all
the while keeping her sedated with a combination of
alcohol and muscle relaxants. Finally, during the
early morning of November 9, Malloy drove K.H. to a
remote location on the Campbell Airstrip Road; there,
Malloy murdered K.H. by slashing her throat and
stabbing her in the chest.
A few days later, Malloy arranged for a
friend to mail the murder weapon and K.H.s belongings
to another friend of Malloys in Washington State.
Malloy telephoned this friend and instructed her to
burn the contents of the package when it arrived.
Based on this conduct, Malloy was convicted
of kidnapping, first-degree murder, and tampering with
evidence. For these crimes, Malloy received a
composite sentence of 159 years imprisonment, with no
eligibility for discretionary parole during the first
129 years of this sentence.
Malloys sentencing for first-degree murder
was governed by the version of AS 12.55.125(a) that was
enacted by the Alaska Legislature in 1992. Before
1992, this statute declared that the penalty range for
first-degree murder was a mandatory minimum sentence of
20 years and a maximum sentence of 99 years. But after
the 1992 amendment to AS 12.55.125(a), the crime of
first-degree murder carries a mandatory minimum penalty
of 99 years imprisonment (i.e., the mandatory minimum
and the statutory maximum become the same) if: (1) the
murder was perpetrated on a police officer, fire
fighter, or corrections employee engaged in the
performance of their duties; or (2) the defendant had
been previously convicted of murder in either the first
or second degree; or (3) the sentencing judge finds, by
clear and convincing evidence, that the defendant
subjected the victim to substantial physical torture.
Moreover, when the legislature amended AS
12.55.125(a) in 1992, the legislature also amended AS
33.16.090, the statute governing eligibility for
discretionary parole. Under the amended version of AS
33.16.090(b), a defendant who receives a mandatory
minimum 99-year sentence for first-degree murder is
barred from applying for discretionary parole during
the service of this sentence.
As the parties prepared for Malloys
sentencing, the State gave notice that it intended to
seek a 99-year mandatory minimum sentence under the
physical torture clause of AS 12.55.125(a) i.e., by
proving that Malloy subjected K.H. to substantial
physical torture before killing her. At Malloys
sentencing hearing, the judge concluded that the State
had proved this aggravating factor by clear and
convincing evidence, and the judge therefore sentenced
Malloy to 99 years imprisonment without possibility of
discretionary parole.
Malloy appealed this sentence, arguing that
the first-degree murder sentencing statute was
unconstitutional to the extent that it subjected
defendants to a 99-year mandatory minimum penalty based
on a finding of fact that was not submitted to a jury.
Malloy principally relied on the Alaska Supreme Courts
decision in Donlun v. State, 527 P.2d 472 (Alaska
1974).
In May 2000, this Court ruled in Malloys
favor on this point: see Malloy v. State, 1 P.3d 1266,
1289 (Alaska App. 2000).
Several weeks later, two significant events
occurred: the Alaska Supreme Court granted the States
petition for hearing in Malloy, and the United States
Supreme Court issued its decision in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000).
In Apprendi, the United States Supreme Court
held that the Sixth Amendment to the federal
Constitution guarantees defendants the right to trial
by jury, and the right to demand proof beyond a
reasonable doubt, on any issue of fact (other than a
prior conviction) which will subject the defendant to a
higher maximum sentence. Id., 530 U.S. at 490, 120
S.Ct. at 2362-63.
At the same time, however, the Supreme Court
indicated that it viewed its decision in Apprendi as
being consistent with its decision in McMillan v.
Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d
67 (1986) an earlier case in which the Supreme Court
approved a sentencing statute under which a defendants
mandatory minimum sentence hinged on aggravating
factors found by the sentencing judge. See Apprendi,
530 U.S. at 495, 120 S.Ct. at 2365. (But see Justice
Thomass concurring opinion in Apprendi, 530 U.S. at
521, 120 S.Ct. at 2379, where he declared that a
defendants right to jury trial [sh]ould cover the
McMillan situation of a mandatory minimum sentence
[hinging on judge-tried facts].)
Two years later, in May 2002, the Alaska
Supreme Court reversed this Courts decision in Malloys
case. Applying the Apprendi interpretation of the
right to jury trial, the supreme court upheld the
constitutionality of the first-degree murder sentencing
statute. State v. Malloy (Malloy II), 46 P.3d 949
(Alaska 2002).
The supreme court pointed out that Malloys
sentence of 99 years imprisonment without possibility
of parole was no greater than the maximum sentence she
might otherwise have received, even without proof of
the physical torture aggravating factor. That is, even
without proof of this aggravating factor, Malloy still
faced a maximum sentence of 99 years imprisonment, and
the sentencing judge had the authority, under AS
12.55.115, to restrict or totally eliminate Malloys
eligibility for discretionary parole. Malloy II, 46
P.3d at 954.
Based on this analysis, the supreme court
concluded that the first-degree murder sentencing
statute did not violate the Sixth Amendment right to
jury trial announced in Apprendi because proof of the
aggravating factors listed in the statute did not
subject a defendant to a higher maximum sentence. Id.
at 955.
In addition, the supreme court declined to
interpret its earlier decision in Donlun as affording
any greater right to jury trial than the Sixth
Amendment right recognized in Apprendi. The court
declared:
[Both] Donlun and Apprendi recognize that an
increased sentence resulting from a finding
of statutory aggravating circumstances is not
a harsher maximum sentence ... unless [the
increased sentence] falls outside the outer
limits of the range of sentences that the
court could otherwise impose.
. . .
Both Donlun and Apprendi ... require [a
court] to compare the harshest sentence ...
available [absent] a finding of aggravating
circumstances ... with the ... harshness of
the sentence ... mandated by ... a finding
[of aggravating circumstances].
Malloy II, 46 P.3d at 955, 956.
The supreme court did not address
the separate problem of the denial of good
time credit and Malloys consequent
ineligibility for mandatory parole release
apparently because no one alerted the supreme
court to the fact that the legislature had
separately amended AS 33.20.010(a) (the
statute governing good time credit) in 1996.
The parties in Malloy focused solely on the
1992 amendment to the first-degree murder
sentencing statute, AS 12.55.125(a), and this
Court did not spot the mandatory parole issue
when we considered Malloys first appeal.
In late June 2004, the United
States Supreme Court issued its decision in
Blakely. Seven weeks later, Malloy filed a
motion under Alaska Criminal Rule 35(a) to
correct her sentence. In this motion, Malloy
argued that it was now clear that the Alaska
Supreme Courts decision rested on a
mistakenly narrow interpretation of the Sixth
Amendment right to jury trial.
According to Malloy, the Blakely
decision demonstrated that Alaskas first-
degree murder sentencing statute was
unconstitutional to the extent that the
mandatory 99-year sentence hinged on an issue
of fact that was not submitted to a jury.
Malloy interpreted Blakely as holding that
mandatory penalties for ... a crime ... [can]
not be increased [based on] any fact not
previously decided by a jury.
Erroneously referring to the normal
20-year mandatory minimum sentence for first-
degree murder as the presumptive term for
this offense, Malloy argued that the superior
court had no authority to exceed this 20-year
minimum term of imprisonment unless a jury
found aggravating factors. Malloy further
argued that her murder sentence violated
Blakely to the extent that the judges finding
of substantial physical torture made her
ineligible for discretionary parole. And
finally, Malloy argued that her 5-year
sentence for evidence tampering violated
Blakely because the superior court had no
authority to sentence her to more than 2
years to serve (the presumptive term of
imprisonment for a second felony offender
convicted of the same crime) unless the State
proved aggravating factors. See former
AS 12.55.125(k)(2).
Superior Court Judge Philip R.
Volland denied Malloys motion for the
correction of her sentences on two separate
bases.
First, Judge Volland ruled that
Blakely was not retroactive. We have since
ruled otherwise. See Smart v. State, 146
P.3d 15, 35 (Alaska App. 2006).4
Second, Judge Volland ruled that
even if Blakely was retroactive, Malloy would
not be entitled to relief because sentencing
for first-degree murder is not governed by
Alaskas presumptive sentencing law. As Judge
Volland correctly noted, [t]he sentencing
range for first-degree murder is always 20 to
99 years[] imprisonment and [this range] is
not affected by the presence or absence of
[the] aggravating [and] mitigating factors
[codified in AS 12.55.155(c) (d)].
(See Allen v. State, 56 P.3d 683,
684-85 (Alaska App. 2002) (order on
rehearing), where this Court held that the
presence or absence of the aggravating
factors codified in AS 12.55.155(c) does not
affect a sentencing judges authority when
imposing a sentence for murder, because
murder sentences are not governed by Alaskas
presumptive sentencing law.)
Judge Volland did not, however,
address Malloys argument that her sentence
for evidence tampering was imposed in
violation of Blakely.
Malloys argument that the Alaska Supreme Courts
decision in her case is inconsistent with the
United States Supreme Courts later decision in
Blakely
In Malloy II, the Alaska Supreme Court stated
(in dictum) that Alaskas pre-March 2005 presumptive
sentencing law did not violate a defendants right to
jury trial under the federal Constitution. 46 P.3d at
956-57. As Malloy correctly points out, subsequent
events in particular, the decision in Blakely v.
Washington have shown that this dictum was wrong.
However, sentencing for murder is not (and
was not) governed by the presumptive sentencing law.
Rather, when the Alaska Legislature enacted presumptive
sentencing, the legislature retained indeterminate
sentencing (within a specified range of imprisonment)
for both first- and second-degree murder.5 As we
pointed out in Carlson v. State, [w]ithin this range of
punishment, sentencing [for murder] is indeterminate;
that is, no further fact-finding is necessary to invest
the sentencing judge with the authority to impose any
sentence within this range. 128 P.3d 197, 209 (Alaska
App. 2006).
Malloy appears to acknowledge this fact
because, on appeal, she does not renew the argument
that her sentence could not exceed 20 years
imprisonment in the absence of jury findings on
aggravating factors. However, Malloy continues to
assert that the first-degree murder sentencing statute
violates the Sixth Amendment right to jury trial (as
interpreted in Blakely) to the extent that a defendant
becomes ineligible for discretionary parole if the
sentencing judge finds that the defendant engaged in
substantial physical torture of the victim.
As the Alaska Supreme Court pointed out in
Malloy II, a sentencing judge in Alaska always has the
authority to restrict a defendants normal eligibility
to apply to the Parole Board for discretionary parole
or to even completely eliminate a defendants
eligibility for discretionary parole. See
AS 12.55.115; Stern v. State, 827 P.2d 442, 450 (Alaska
App. 1992). Thus, when a defendant is convicted of
first-degree murder, the sentencing judge already
possesses the authority based on the jurys verdict
alone to impose the maximum term of imprisonment (99
years) and to order that the defendant not be eligible
for discretionary parole.
(Likewise, even in the absence of mitigating
factors, the sentencing judge possesses the authority
to impose the minimum sentence allowed by law: 20
years imprisonment, with no special restriction on the
defendants eligibility to apply for discretionary
parole. That is, the defendant may apply for
discretionary parole after serving the portion of their
sentence specified in AS 33.16.090.)
Given this indeterminate sentencing framework
for first-degree murder, a finding of substantial
physical torture limits a judges sentencing discretion
in two ways. First, the range of authorized terms of
imprisonment shrinks dramatically: the mandatory
minimum sentence rises from 20 to 99 years making it
equal to the statutory maximum sentence. In other
words, the sentencing judge no longer has the
discretion to impose less than the statutory maximum
term of imprisonment. Second, the judges discretion
with regard to the defendants eligibility for
discretionary parole likewise vanishes: the judge has
no choice but to exercise the full extent of the
authority granted by AS 12.55.115, thus completely
eliminating the defendants eligibility for
discretionary parole.
But the fact that the defendants mandatory
minimum sentence now equals what otherwise would have
been the maximum authorized sentence does not raise a
problem under Apprendi and Blakely. The Alaska Supreme
Court correctly characterized the federal law on this
point in Malloy II: an increased sentence resulting
from a finding of statutory aggravating circumstances
is not a harsher maximum sentence ... unless [the
increased sentence] falls outside the outer limits of
the range of sentences that the court could otherwise
impose. 46 P.3d at 955.
At about the same time that the Alaska
Supreme Court upheld our first-degree murder sentencing
statute in Malloy II, the United States Supreme Court
decided Harris v. United States, 536 U.S. 545, 122
S.Ct. 2406, 153 L.Ed.2d 524 (2002). In Harris, 536
U.S. at 563-64, 122 S.Ct. at 2417-18, the Supreme Court
confirmed that its earlier holding in McMillan v.
Pennsylvania remains good law despite the expansion of
the right to jury trial in Apprendi. That is, a
legislature does not violate the Sixth Amendment right
to jury trial by increasing a defendants mandatory
minimum sentence (as opposed to the defendants maximum
sentence) based on aggravating facts that are tried to,
and decided by, the sentencing judge.
Given the United States Supreme Courts
decision in Harris, we readily conclude that the Alaska
Supreme Courts decision in Malloy II remains consistent
with the Sixth Amendment right to jury trial, even
after Blakely.
It is true that, under this Courts sentencing
decisions, a judge who proposes to exercise the
authority conferred by AS 12.55.115 i.e., the
authority to restrict a defendants eligibility for
discretionary parole must specifically address the
issue of parole restriction [and must set] forth with
particularity his or her reasons for concluding that
the [normal] parole eligibility prescribed by AS
33.16.090 and AS 33.16.100(c) (d) is insufficient to
protect the public and insure the defendants
reformation. Stern v. State, 827 P.2d at 450.6
One might conceivably argue that the
particular reasons required by Stern constitute a
finding of fact that must be submitted to a jury under
Blakely. But we have already rejected this same
Blakely argument concerning the findings that a judge
must make when imposing consecutive sentences that
total more than the maximum sentence for the defendants
single most serious offense. See Vandergriff v. State,
125 P.3d 360, 363 (lead opinion) and 370-72
(Mannheimer, J., concurring) (Alaska App. 2005).
See also Carlson v. State, 128 P.3d 197, 208-
211 (Alaska App. 2006), where we held that Blakely does
not require a jury trial regarding the facts that a
sentencing judge relies on when deciding whether to
impose a second-degree murder sentence exceeding the
Page benchmark range of 20 to 30 years to serve.7
We reach the same conclusion here: Blakely
does not require a jury trial regarding facts that a
judge relies on when exercising the sentencing
discretion already afforded by the applicable statutes.
Thus, a defendant has no Sixth Amendment right to jury
trial regarding the factors that a judge may rely on
when deciding whether to exercise the statutory
authority to restrict or eliminate the defendants
eligibility for discretionary parole. And the Supreme
Courts decisions in McMillan and Harris show that the
same holds true even when a sentencing statute obliges
the sentencing judge to exercise this pre-existing
authority if specified facts are proved.
For these reasons, we reject Malloys argument
that the Blakely decision has undercut the Alaska
Supreme Courts conclusion in Malloy II. The first-
degree murder sentencing statute, AS 12.55.125(a), and
the corresponding provision of the discretionary parole
statute, AS 33.16.090(b), do not violate a defendants
Sixth Amendment right to jury trial.
Malloys argument that, even if the Alaska Supreme
Courts decision is consistent with Blakely, we should
nevertheless construe the Alaska Constitutions
guarantees of jury trial and due process more broadly
than the corresponding federal law
Malloy argues that even if the supreme courts
decision in Malloy II remains consistent with the
holdings in Apprendi and Blakely, we should
nevertheless construe the Alaska Constitutions jury
trial clause8 and due process clause9 more broadly than
their federal counterparts, so as to grant defendants a
right to jury trial (and a right to demand proof beyond
a reasonable doubt) with respect to the aggravating
factors codified in the first-degree murder sentencing
statute, AS 12.55.125(a) because proof of any of these
aggravating factors requires such a drastic increase in
a defendants minimum sentence.
As we have explained, the Alaska Supreme
Court rejected this very argument in Malloy II, and
neither the text of the Alaska Constitution nor the
Alaska Supreme Courts interpretation of that document
has changed since then. Accordingly, we have no
authority to re-examine or second-guess the supreme
courts resolution of this point in Malloy II.
The question of whether AS 33.20.010(a) violates the
Sixth Amendment right to jury as interpreted in Blakely
to the extent that this statute deprives first-degree
murder defendants of the right to earn good time credit
(and thus obtain release on mandatory parole) if the
sentencing judge finds that the defendant subjected the
victim to substantial physical torture
When we were researching the issues raised by
Malloy in this appeal, we discovered that, in 1996, the
Alaska Legislature amended the good time credit
statute, AS 33.20.010(a), to increase the penalty for
certain defendants convicted of first-degree murder.
The amended version of the statute declares that
defendants sentenced to a mandatory 99-year term of
imprisonment for first-degree murder are no longer
eligible to earn good time credit while they serve
their sentences meaning that these defendants will
never be eligible for mandatory parole under
AS 33.20.030 040.
We asked the parties to brief whether,
consistent with Apprendi and Blakely, the legislature
could constitutionally impose this denial of good time
credit based on an issue of fact that was not resolved
by a jury (using a beyond a reasonable doubt standard
of proof).
The State responded with a concession of
error not on the jury trial issue, but rather on the
ground that application of the amended good time credit
statute to Malloy would violate the ex post facto
clauses of both the federal and state constitutions
because Malloy committed her crimes in late 1995, and
the amended statute did not take effect until June
1996. See SLA 1996, ch. 7, 15 & 18.
In Weaver v. Graham, 450 U.S. 24, 101 S.Ct.
960, 67 L.Ed.2d 17 (1981), the United States Supreme
Court held that, under the ex post facto clause of the
federal Constitution, a law making it more difficult
for a person to accrue good time credit can not
lawfully be applied to events occurring before its
enactment. Id., 450 U.S. at 29, 101 S.Ct. at 964. The
Supreme Court concluded that such a law imposes an
increased punishment for the defendants crime and,
thus, the ex post facto clause forbids a state from
applying such a law to a defendant whose offense
preceded the enactment of the law. Id., 450 U.S. at 35-
36, 101 S.Ct. at 968.
We note that AS 33.20.010(a), by its terms,
purports to apply to Malloy even though her offense
predates the enactment of the statute. The statute
denies good time credit to all prisoners sentenced to a
mandatory 99-year term of imprisonment under AS
12.55.125(a) after June 27, 1996. Malloy was sentenced
on August 13, 1997. Thus, she is apparently covered by
the statute.
But the ex post facto clause looks to the
date of a defendants offense, not the date of a
defendants sentencing. Weaver, 450 U.S. at 30-31, 101
S.Ct. at 965. Thus, to the extent that the language of
AS 33.20.010(a) covers prisoners whose offenses were
committed before the amended statute took effect, it is
unconstitutional.
For these reasons, we conclude that the
States concession of error is well-founded, and we
accept that concession.10 The Department of
Corrections must give Malloy normal good time credit.
Why we vacate Malloys sentence for evidence tampering
Malloy was convicted of evidence tampering, a
class C felony.11 Because Malloy was a first felony
offender, her sentencing was governed by former
AS 12.55.125(k)(2). This statute specified that Malloy
could not receive more than 2 years to serve (the
presumptive term of imprisonment that would apply to a
second felony offender convicted of the same offense12)
unless the State proved one or more of the aggravating
factors listed in AS 12.55.155(c) or proved
extraordinary circumstances as defined in AS 12.55.165.
The State proposed several aggravators at
Malloys sentencing, and the sentencing judge found them
to be proved. Based on the presence of these
aggravators, the judge sentenced Malloy to the 5-year
maximum term of imprisonment for a class C felony
although she ordered that this 5-year sentence run
concurrently with Malloys sentences for murder and
kidnapping.
As Malloy points out in her brief, this
sentence raises a Blakely problem. Not one of the
States proposed aggravators is Blakely-compliant on its
face. That is, none of the aggravators rests solely on
Malloys prior criminal convictions, or flows directly
from the jurys verdicts at her trial, or was expressly
conceded by Malloy.
Accordingly, we must vacate Malloys sentence
for evidence tampering. The State may choose to have
the superior court suspend 3 years of this sentence
(to bring the sentence within the range of sentences
authorized by former AS 12.55.125(k)(2) in the absence
of aggravating factors). Alternatively, the State may
attempt to demonstrate to the superior court that one
or more of its proposed aggravators was Blakely-
compliant. Finally, the State may seek the opportunity
to present its proposed aggravators to a jury. See
State v. Dague, 143 P.3d 988, 1013-14 (Alaska App.
2006) (suggesting that this alternative may remain open
to the State).
We do not retain jurisdiction over this
matter.
Conclusion
We hold that, consistent with the Sixth
Amendment right to jury trial recognized in Apprendi
and Blakely, and consistent with the rights to jury
trial and due process of law guaranteed by the Alaska
Constitution, the legislature can deny discretionary
parole to a defendant convicted of first-degree murder
if the sentencing judge finds that the defendant
engaged in substantial physical torture of the victim.
This aspect of the superior courts decision is
AFFIRMED.
We further hold that, under the ex post facto
clauses of the federal Constitution and the Alaska
Constitution, the portion of AS 33.20.010(a) that
purports to deny good time credit to Malloy can not
constitutionally be applied to her because her offense
predates the enactment of the statute. The Department
of Corrections must give Malloy good time credit under
the normal rules.
Finally, we VACATE Malloys sentence for
evidence tampering, and we direct the superior court to
re-sentence Malloy in conformity with Blakely.
_______________________________
1 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
2 527 P.2d 472 (Alaska 1974).
3 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
4 Hearing granted on February 13, 2007. See State v.
Smart, Alaska Supreme Court File No. S-12493.
5 See AS 12.55.125(a) (sentences for first-degree murder)
and 125(b) (sentences for second-degree murder); Carlson v.
State, 128 P.3d 197, 203-04 (Alaska App. 2006). See also
Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
6 Citing Newell v. State, 771 P.2d 873, 876 (Alaska App.
1989); Spencer v. State, 642 P.2d 1371, 1377 (Alaska App.
1982). See also Lawrence v. State, 764 P.2d 318, 321
(Alaska App. 1988); Bloomstrand v. State, 656 P.2d 584, 591
(Alaska App. 1982).
7 See Page v. State, 657 P.2d 850, 854-55 (Alaska App.
1983).
8 Article I, Section 11.
9 Article I, Section 7.
10 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)
(holding that, in criminal cases, an appellate court must
independently evaluate the governments concession of error).
11 See AS 11.56.610(b).
12 See former AS 12.55.125(e)(1) (pre-March 2005 version).
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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