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Moore v. State (1/18/2008) ap-2143

Moore v. State (1/18/2008) ap-2143

                             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


MATTHEW MARK MOORE, )
) Court of Appeals No. A-9691
Appellant, ) Trial Court No. 2NO-02-454 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2143 January 18, 2008
)
          Appeal  from the Superior Court, Second  Judi
          cial District, Nome, Ben J. Esch, Judge.

          Appearances:   Averil Lerman  and  Dan  Bair,
          Assistant  Public Advocates,  and  Joshua  P.
          Fink,  Public  Advocate, Anchorage,  for  the
          Appellant.   Daine  L.  Wendlandt,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge.
          MANNHEIMER, Judge, concurring.

          In Moore v. State, 123 P.3d 1081 (Alaska App. 2005), we
affirmed  Matthew  Mark Moores convictions for  attempted  first-
degree sexual assault, attempted second-degree sexual assault and
first-degree  burglary,1  but we held  that  under  the  rule  in
          Whitton v. State,2 Moores convictions for attempted first- and
attempted second-degree sexual assault must merge.3
          We  rejected  Moores  claims  regarding  his  sentence,
except  for his claim  that the record did not support  statutory
aggravating  factor AS 12.55.155(c)(8) (Moores  criminal  history
includes  conduct involving aggravated or repeated  instances  of
assaultive  behavior) because the record did not show that  Moore
had  a  criminal  history  of repeated  instances  of  assaultive
conduct.   Because the superior court was required to  resentence
Moore,  we  left that issue for the superior court to address  at
resentencing.4
          At   resentencing,  Moore  conceded  that  he  had  two
juvenile  adjudications for assault.  The  superior  court  found
that aggravator (c)(8) applied.  Originally, Superior Court Judge
Ben  J. Esch sentenced Moore to a composite term of 12 years with
4  suspended.  At Moores resentencing, Judge Esch imposed  an  8-
year  term  with  3  years  suspended for attempted  first-degree
sexual  assault.   (The  conviction for  attempted  second-degree
assault  merged  with this count.)  Judge Esch imposed  a  2-year
term   for  first-degree  burglary  with  1  year  of  that  term
consecutive  to  attempted first-degree  sexual  assault.   Thus,
Moore  received  a composite 9-year term with 3 years  suspended.
We  discussed the facts of Moores case in the earlier opinion and
will not repeat them here.   Moore appeals.

          Moores  attack  on  the superior  courts  finding  that
          aggravator (c)(8) applied

          Moore  advances several attacks on the superior  courts
finding  of  the  (c)(8) aggravator.  For the  most  part,  Moore
raises  arguments that could have been raised in his first appeal
or that were resolved by that opinion.5
          In the first appeal, Moore argued that the sentence for
attempted first-degree sexual assault was excessive, that the two
sexual assault charges should have merged at sentencing, and that
the  court  erroneously  failed to find  a  statutory  mitigating
factor.   Moore  also  claimed  that  Judge  Esch  increased  his
sentence  based  on  finding a statutory  aggravating  factor  in
violation  of  Blakely v. Washington.6  Finally, Moore  contended
that the composite sentence he received was excessive.  We agreed
with  Moore  that merger was required, but rejected Moores  other
claims  with the exception of the issue of whether there  was  an
evidentiary  basis  for  aggravator  (c)(8)  that  complied  with
Blakely.
          Moore argues that the superior court could not rely  on
his  juvenile  adjudication for conduct that  constituted  third-
degree  assault because that adjudication was ultimately vacated.
However,  the  Alaska Supreme Court in Berfield v.  State7  ruled
that,  while  a  defendants juvenile history cannot  be  used  to
impose a mandatory sentence, that history is relevant information
about a defendants life, characteristics, background and behavior
before  the  age of 18.8  Under Berfield, the conduct  underlying
Moores   adjudication  for  third-degree  assault  was  pertinent
information  for sentencing purposes.  Consistent  with  Blakely,
          Moore had the right to demand that the State prove the conduct
alleged in the delinquency petition to a jury beyond a reasonable
doubt.9
          Moore recognizes that an adult conviction that has been
set aside may be used as a basis for an aggravating factor.10  But
Moore  argues that a vacated adjudication should not be  used  to
support  aggravator  (c)(8)  because  of  differences  between  a
juvenile  proceeding  and an adult criminal  case.   But  as  the
supreme  court indicated in Berfield, a defendants conduct  as  a
juvenile  is  relevant for sentencing purposes.  And  a  juvenile
adjudication  in  Alaska  contains  the  hallmarks  that  satisfy
Blakely  the right to a jury trial and the States burden to prove
the  delinquency  petition beyond a reasonable doubt.   Moreover,
Judge Esch ruled that the important issue in Moores case was  not
that  Moore had two juvenile adjudications for assault,  but  was
whether,  consistent with the requirements of  Blakely,  each  of
Moores adjudications established, beyond a reasonable doubt, that
Moore had engaged in repeated instances of assaultive behavior.
          Moore contends that AS 47.12.180(a) bars the use  of  a
juvenile adjudication as a prior criminal conviction.  But  Judge
Esch  did  not  use  Moores history of juvenile adjudications  to
establish  that  he  had prior criminal convictions.   Aggravator
(c)(8)  does not require proof of a conviction but is established
by  proof  of  aggravated  or repeated  instances  of  assaultive
behavior.   The  State  could have proven repeated  instances  of
assaultive  behavior whether or not Moore had been adjudicated  a
delinquent.   But  the  two  juvenile  adjudications  that  Moore
conceded  at  trial  established, consistent with  Blakely,  that
Moore had a history of repeated instances of assaultive behavior.

          Conclusion
          The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.

          In Moore v. State, 123 P.3d 1081 (Alaska App. 2005), we
affirmed  Matthew  Mark Moores convictions for  attempted  first-
degree sexual assault and first-degree burglary,1 but we directed
the superior court to reconsider whether the evidence supported a
finding  of aggravating factor AS 12.55.155(c)(8)  i.e.,  whether
Moore  had a criminal history of aggravated or repeated instances
of assaultive behavior.
          During  the resentencing proceedings that were held  on
remand,   Moore  conceded  that  he  had  two  prior  delinquency
adjudications  for  assault   an  adjudication  for  third-degree
assault, and an adjudication for fourth-degree assault.  Based on
these two delinquency adjudications, Superior Court Judge Ben  J.
Esch  found that aggravator (c)(8) was proved.  Moore now appeals
this ruling.
          Moores  initial  argument is that Judge  Esch  violated
Moores  Sixth  Amendment right to jury trial, as  interpreted  in
Blakely v. Washington,2 when the judge decided aggravator  (c)(8)
without submitting this issue to a jury.
          Under  Blakely, a defendant is normally entitled  to  a
jury  trial  on any issue of fact which, if found in  the  States
favor,  will increase the defendants potential maximum  sentence.
However, Blakely makes an exception for findings of fact that are
based  on  a defendants prior convictions.  These factual  issues
need not be submitted to a jury.3
          In  Milligrock v. State, 118 P.3d 11, 16  (Alaska  App.
2005),  this  Court expressly held that a sentencing judge  could
properly   find   aggravator  (c)(8),  without   submitting   the
aggravator  to  a jury, so long as the judges finding  was  based
solely  on the defendants undisputed prior convictions for crimes
of assault.
          In  the present case, Judge Eschs finding of aggravator
(c)(8)  was based, not on Moores prior criminal convictions,  but
rather on Moores prior delinquency adjudications for conduct that
would  have  constituted crimes of assault if Moore had  been  an
adult.   But  in Greist v. State, 121 P.3d 811, 814 (Alaska  App.
2005), this Court held that Alaska delinquency adjudications fall
within Blakelys prior conviction exception  because, under Alaska
law,  juvenile  offenders have the same  two  crucial  procedural
protections as adult criminal defendants:  the right to trial  by
jury,  and  the  right  to require the government  to  prove  the
offense beyond a reasonable doubt.
          Thus, under our decision in Greist, Judge Esch did  not
violate   Blakely  when  he  decided  aggravator  (c)(8)  without
submitting  the  aggravator to a jury, because  his  finding  was
based  solely  on  Moores  prior  delinquency  adjudications  for
assault.
          Moore suggests that the holding in Greist applies  only
to  delinquency adjudications for felony conduct, not misdemeanor
conduct such as Moores adjudication for fourth-degree assault.
          It  is  true that, in Greist, we stated that an  Alaska
juvenile  delinquency adjudication based on felony conduct  falls
within  the Blakely exception for prior convictions.  Id. at  814
          (emphasis added).  However, the aggravating factor that was at
issue  in  Greist  was  aggravator (c)(19)  the  aggravator  that
applies  when  a  defendants prior criminal history  includes  an
adjudication as a delinquent [minor] for conduct that would  have
been  a  felony  if  committed by an adult.  AS  12.55.155(c)(19)
(emphasis added).
          In  other  words,  Greists language  about  delinquency
adjudications based on felony conduct must be understood  in  the
context  of litigation about an aggravator that applies  only  to
delinquency adjudications based on felony conduct.  No portion of
our  decision in Greist  or, at least, no portion other than this
one  phrase taken out of context  suggests that the Blakely prior
conviction   exception  should  not  apply  to  all   delinquency
adjudications, whether based on felony or misdemeanor conduct.
          In  fact,  the  rationale that we gave  in  Greist  for
treating  delinquency  adjudications as prior  convictions  under
Blakely  applies  equally to both of these types  of  delinquency
adjudications.   Regardless  of  whether  the  minors  underlying
conduct  would constitute a felony or a misdemeanor,  Alaska  law
gives  the  minor  the right to trial by jury and  the  right  to
demand proof beyond a reasonable doubt.4
          For  these reasons, I reject Moores argument  that  our
holding in Greist should be limited to felony conduct.
          Moore also argues that Greist was wrongly decided  that
the  result  in  Greist  is  inconsistent  with  Alaska  juvenile
delinquency  law.  Moore relies specifically on AS  47.12.180(3),
which  declares that a delinquency adjudication does not  operate
to   permit  the  adjudication  to  be  afterward  considered   a
[criminal] conviction.  Based on this statute, Moore argues  that
this  Court violated Alaska law when we declared that delinquency
adjudications  should  be  treated  like  prior  convictions  for
purposes  of Blakelys prior conviction exception to the right  to
jury trial.
          Moores  argument  is based on a misunderstanding  of  a
point  of  law that was explained by the Alaska Supreme Court  in
Berfield v. State, 458 P.2d 1008 (Alaska 1969).
          In   Berfield,  a  sentencing  judge  relied   on   the
defendants prior delinquency adjudications when explaining why he
believed that the defendant should receive a lengthy sentence  of
imprisonment  for a new crime.5  Berfield argued  that  this  was
legal  error.  Citing former AS 47.10.080(g)  the predecessor  to
current  AS  47.12.180  Berfield argued that it was unlawful  for
the  sentencing  judge  to rely on his delinquency  adjudications
because  the  statute  declared that a  delinquency  adjudication
[could not] be afterward deemed a [criminal] conviction.6
          But  in Berfield, the supreme court explained that this
statute  was  not  intended to bar judges  from  considering  the
conduct underlying a prior delinquency adjudication.  Rather, the
statute  was  intended to ensure that a delinquency  adjudication
would  not  be treated as the equivalent of a criminal conviction
when the very existence of a conviction makes a difference to the
defendants legal status  as, for instance, when the existence  or
number  of  a  defendants prior convictions  will  determine  the
defendants mandatory minimum sentence.7  Thus, the supreme  court
          held, the sentencing judges act of considering and weighing the
conduct underlying Berfields prior delinquency adjudications  did
not  constitute  using the juvenile [adjudications]  as  criminal
convictions.8
          In  the  present  case,  Judge Eschs  consideration  of
Moores  prior assaultive behavior conformed to the rule announced
in  Berfield.  The issue before Judge Esch was whether the  State
had  proved  aggravator  (c)(8)   i.e.,  whether  Moores  history
included  repeated instances of assaultive behavior.  To  resolve
this  issue, Judge Esch could properly take account of  the  fact
that  Moore  had  twice been adjudicated a delinquent  minor  for
engaging   in  assaultive  behavior.   Berfield  holds   that   a
sentencing  judge  can rely on a defendants  past  conduct,  even
though that conduct led to a delinquency adjudication.
          Anticipating  this  analysis  of  the  question,  Moore
argues  that  if  Judge  Esch was relying  solely  on  the  prior
underlying conduct, without regard to whether that conduct led to
a  delinquency  adjudication, then Judge  Esch  violated  Blakely
because  the  judge was no longer operating within the  exception
for   prior   convictions.   This  argument   is   based   on   a
misunderstanding of Blakely.
          The  announced aim of Blakely is to ensure a defendants
right  to  jury  trial (and the right to demand  proof  beyond  a
reasonable  doubt) when the resolution of an issue of  fact  will
affect the defendants potential maximum sentence.  As this  Court
explained  in  Edmonds v. State, 118 P.3d  17,  20  (Alaska  App.
2005),  the  Blakely  Court exempted  issues  of  fact  that  are
resolved  by a defendants prior conviction because, in  order  to
convict  someone  of a crime, the government  must  have  already
honored  (or  the defendant must have affirmatively  waived)  the
right to trial by jury and the right to demand proof of the crime
beyond a reasonable doubt.
          The Blakely exception for prior convictions applies, of
course, to aggravators that are proved by the existence of  prior
convictions  for instance, aggravator (c)(15), which  applies  to
defendants who have more than two prior felony convictions.   But
this  Court  has  repeatedly recognized that  the  Blakely  prior
conviction exception also applies to aggravators that are  proved
by  the  type  of  conduct  that  underlies  a  prior  conviction
aggravators  such as (c)(21) (prior similar criminal  behavior)9,
(c)(18)(B) (prior sexually assaultive or abusive conduct)10,  and
the  aggravator  involved in this case, (c)(8) (prior  assaultive
conduct).11
          Proof  of these aggravators does not hinge on the  fact
that  the  defendants  prior  behavior  resulted  in  a  criminal
conviction.  Indeed, we have construed these aggravators to apply
to  all  instances  of a defendants past behavior,  whether  that
behavior  resulted in a criminal conviction or not.12   In  other
words, the fact that the defendants underlying behavior may  have
led  to  a  criminal conviction is irrelevant  to  the  issue  of
whether the aggravator is proved.
          But  because  of the right to jury trial recognized  in
Blakely, the fact that the defendants conduct led to a conviction
is  quite relevant to another issue  the issue of which trier  of
          fact (sentencing judge or jury) must decide whether the
aggravator  is proved.  If the prior conduct led to a conviction,
the  sentencing  judge  is authorized to  consider  that  conduct
without submitting the issue to a jury.
          I now apply this law to the facts of Moores case.
          On  the  issue of whether the evidence in  Moores  case
established  aggravator  (c)(8), it was  irrelevant  that  Moores
assaultive behavior had led to delinquency adjudications.  It was
the  underlying conduct that was relevant.  Thus, under the  rule
announced in Berfield, these delinquency adjudications  were  not
being treated as the equivalent of criminal convictions.
          The  fact  that  Moores  past instances  of  assaultive
behavior  resulted  in delinquency adjudications  was  important,
however,  for  a  different purpose:  it allowed  Judge  Esch  to
resolve aggravator (c)(8) without submitting the aggravator to  a
jury, because of the Blakely exception for prior convictions.
          For  these  reasons,  Judge Esch  violated  neither  AS
47.12.180  nor Blakely when he found aggravator (c)(8)  based  on
the   assaultive  conduct  underlying  Moores  prior  delinquency
adjudications.
          Moore  next  argues that Judge Esch could not  properly
rely on Moores delinquency adjudication for third-degree assault.
Moore  notes  that this adjudication was later set aside  by  the
superior  court,  based  on  the  fact  that  Moore  successfully
completed  his probation.  Because this delinquency  adjudication
was  set aside, Moore argues that Judge Esch was prohibited  from
considering the conduct underlying this adjudication when he made
his decision on aggravator (c)(8).
          I  conclude that Moores contention is again answered by
the  supreme  courts decision in Berfield.  Proof  of  aggravator
(c)(8)   did  not  hinge  on  the  existence  of  the   set-aside
delinquency  adjudication.  Rather, the proof of this  aggravator
rested  on  the  conduct  underlying the set-aside  adjudication.
Under  the  rule announced in Berfield, it was proper  for  Judge
Esch to consider Moores prior conduct.
          In  this context, it is important to distinguish  cases
such  as  Moores, where a prior conviction or a prior delinquency
adjudication  is  set  aside  because  of  the  defendants  later
successful completion of probation, from cases where a defendants
conviction or delinquency adjudication is later vacated based  on
proof  of  the  defendants  factual  innocence.   In  the  latter
category of cases, it would obviously be improper for a judge  to
rely  on  the conviction or delinquency adjudication as proof  of
the underlying criminal conduct alleged by the State.  But Moores
case  is  among  the  first category of cases   cases  where  the
conviction  or delinquency adjudication is set-aside for  reasons
unrelated to the defendants factual guilt.
          It  could  certainly be argued that a sentencing  judge
should  give  lesser or little weight to aggravator (c)(8)   that
is,  to  a  defendants  history of assaultive  behavior   if  the
defendants  later progress toward rehabilitation  indicates  that
the  defendant  is no longer likely to commit acts  of  violence.
Nevertheless,  the  fact  that the defendant  committed  acts  of
assault  in the past remains proved, despite the set-aside  based
on the defendants later successful completion of probation.
          Moore  next  argues that notions of due process  should
bar  a  judge (or even a jury) from relying on a defendants prior
misdemeanor-level assaults, committed when the  defendant  was  a
minor,  for purposes of proving aggravator (c)(8).  Specifically,
Moore  argues  that, because the apparent purpose  of  aggravator
(c)(8)  is to identify adult felony defendants who are atypically
dangerous  (i.e., who are more assaultive than a  typical  felony
offender), it makes little sense to allow aggravator (c)(8) to be
proved by misdemeanor-level assaults committed when the defendant
was a young teenager.  According to Moore, such youthful offenses
have  essentially  no probative value on the issue  of  an  adult
offenders  level  of  dangerousness   or,  at  least,  so  little
probative  value  that  it violates due  process  to  allow  this
youthful misconduct to be used as proof of aggravator (c)(8).
          I  reject  this  argument for much the same  reasons  I
rejected  Moores  argument about the set-aside adjudication.   It
may be that a sentencing judge should give little or no weight to
a   delinquency  adjudication  for  assaultive  conduct  if  that
assaultive  conduct occurred when the defendant was  quite  young
and  the  defendant has not continued to exhibit violent behavior
in  later  life.   On  the other hand, if a  defendant  commenced
violent  behavior  when  quite young  and  continues  to  exhibit
violent behavior even after reaching greater maturity, this would
be  quite  relevant  to the sentencing judges assessment  of  the
defendants  level  of dangerousness and the defendants  potential
for rehabilitation.
          In   other   words,  there  may  be  times   when   the
circumstances of the case suggest that a sentencing judge  should
give  little  weight  to  an early delinquency  adjudication  for
assaultive conduct.  But on the other hand, there will  be  times
when  this  type  of delinquency adjudication  will  properly  be
viewed  as  significant  to the sentencing  decision.   Moore  is
simply   incorrect   when  he  asserts  that   such   delinquency
adjudications  are uniformly so irrelevant that it  violates  the
guarantee of due process of law for a judge to consider them.
          Moore  argues  in the alternative that, even  if  Judge
Esch   was   entitled   to  rely  on  Moores  prior   delinquency
adjudications, the State failed to adequately prove the existence
of  these adjudications.  Moore points out that the State  failed
to  present  certified copies of the judgements  in  those  prior
delinquency   cases,  and  instead  relied  simply   on   peoples
statements that those adjudications existed.
          But  Moore did not  and does not  dispute the existence
of those delinquency adjudications.  Thus, to the extent that the
State  might  be  faulted  for  failing  to  formally  prove  the
adjudications, any error was harmless beyond a reasonable doubt.
          Finally,  Moore  argues  that the  Alaska  Constitution
independently  guarantees a right to jury  trial  that  parallels
Blakely  (that is, a right to trial by jury on any issue of  fact
that  will  trigger a higher maximum sentence), except  that  the
Alaska right of jury trial contains no exception for findings  of
fact based on a defendants prior convictions.
          We  rejected this contention in both Lockuk  v.  State,
153  P.3d 1012, 1017 (Alaska App. 2007), and Active v. State, 153
P.3d  355,  366-67 (Alaska App. 2007).  Specifically,  in  Active
this  Court  held  that the Alaska Constitution  guarantees  [no]
broader  right  to jury trial with respect to sentencing  factors
than the right to jury trial recognized in Blakely.  Id. at 367.
          For  all  of  these reasons, I agree with my colleagues
that the superior courts judgement should be affirmed.

_______________________________
  1  AS 11.41.410(a)(1)and AS 11.31.100(a); AS 11.41.420(a)(3)(B)
and AS 11.31.100(a);  and AS 11.46.300(a)(1), respectively.

  2 479 P.2d 302 (Alaska 1970).

  3 Moore, 123 P.3d at 1092-94.

  4 Id. at 1092.

  5  See  Hurd v. State, 107 P.3d 314, 327-29 (Alaska App.  2005)
(holding   that  Alaskas  law  of  the  case  doctrine   includes
prohibition against claim-splitting).

  6 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

  7 458 P.2d 1008 (Alaska 1969).

  8 Berfield, 458 P.2d at 1011-12.

  9  See  Greist  v.  State, 121 P.3d 811,  813-14  (Alaska  App.
2005).

  10 See Petersen v. State, 930 P.3d 414, 437 (Alaska App. 1996).

1 AS 11.41.410(a)(1) and AS 11.46.300(a)(1), respectively.

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

  3  See  Edmonds  v. State, 118 P.3d 17, 20 (Alaska  App.  2005)
(explaining  the  legal  basis  for  Blakelys  prior   conviction
exception to the Sixth Amendment right to jury trial).

4 State v. Auliye, 57 P.3d 711, 714 (Alaska App. 2002).

  5 Berfield, 458 P.2d at 1010.

  6 Id. at 1011.

  7 Id. at 1011.

8 Id. at 1012.

  9  See  Lockuk  v. State, 153 P.3d 1012, 1014-15  (Alaska  App.
2007); Grohs v. State, 118 P.3d 1080, 1083-84 (Alaska App. 2005).

  10See Active v. State, 153 P.3d 355, 366 (Alaska App. 2007).

  11See  Milligrock  v. State, 118 P.3d 11,  15-16  (Alaska  App.
2005).

  12See  Russell  v.  State,  934 P.2d 1335,  1347  (Alaska  App.
1997); Fagan v. State, 779 P.2d 1258, 1260 (Alaska App. 1989).

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