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Malutin v. State (1/9/2009) ap-2203

Malutin v. State (1/9/2009) ap-2203

                             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


JAMES R. MALUTIN, )
) Court of Appeals Nos. A-9742 & A-9981
Appellant, ) Trial Court No. 3KO-96-360 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2203 January 9, 2009
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Kodiak, Eric A.  Aarseth  and
          Craig Stowers, Judges.

          Appearances:  Glenda Kerry, Assistant  Public
          Advocate,   and   Joshua  P.   Fink,   Public
          Advocate,  and  Rachel Levitt, Acting  Public
          Advocate,   Anchorage,  for  the   Appellant.
          Diane   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.

          MANNHEIMER, Judge.

          In 1996, James R. Malutin was charged with first-degree
burglary and first-degree sexual abuse of a minor.  These charges
were resolved when Malutin agreed to plead no contest to a single
charge  of  attempted  first-degree  sexual  abuse  of  a  minor.
Malutin  further  agreed  that he would  receive  a  sentence  of
12  years  imprisonment with 7 years suspended  i.e., 5 years  to
serve  for this crime.
          Before  the  superior court could lawfully impose  this
negotiated  sentence, the State had to establish one or  more  of
the  aggravating  factors listed in AS  12.55.155(c).   This  was
because attempted first-degree sexual abuse of a minor is a class
A  felony,1  and,  under Alaskas pre-2005 presumptive  sentencing
law,  Malutin faced a 5-year presumptive term for this  offense.2
In  the absence of aggravating factors, the superior court had no
authority to exceed this prescribed 5-year presumptive term  even
if all of the additional jail time was suspended.3
          Thus, to enable the superior court to impose the agreed-
upon  sentence  of  12  years  with 7  years  suspended,  Malutin
stipulated  to  two  aggravating factors under  AS  12.55.155(c):
(c)(5)   that  Malutin  knew  the  victim  of  his  offense   was
particularly vulnerable or incapable of resistance because of her
extreme  youth; and (c)(19)  that Malutins prior criminal history
included  a delinquency adjudication for conduct that would  have
been a felony if committed by an adult.
          Malutin  received  the  agreed-upon  sentence,  and  he
served  his  initial  time in prison.  He was  then  released  to
probation,  which  he  violated several times.   While  his  most
recent  probation  revocation proceedings were  pending,  Malutin
raised  a  constitutional challenge to his plea  agreement.   The
superior  court rejected Malutins challenge  giving rise  to  the
present appeal.
The litigation in the superior court

          Malutins challenge to his plea agreement  was
based  on  the  Sixth  Amendment right  to  jury  trial
recognized  by  the  United  States  Supreme  Court  in
Blakely  v.  Washington, 542 U.S. 296, 124 S.Ct.  2531,
159 L.Ed.2d 403 (2004).
          Under   Blakely,  Malutin  (and   all   other
defendants  subject  to  presumptive  sentencing  under
Alaskas  pre-2005 law) had the right to demand  a  jury
trial  on any aggravating factors alleged by the  State
(other   than   those   premised  on   prior   criminal
convictions), and the concomitant right to demand  that
the  State  prove these aggravators beyond a reasonable
doubt.4  Malutin asserted that his plea agreement  with
the  State was invalid because (as explained above) the
lawfulness of Malutins agreed-upon sentence  hinged  on
the  States  proof  of  the  aggravators,  and  because
(according  to  Malutin) he was unlawfully  denied  his
right to jury trial on those aggravators.
          Malutin  acknowledged that he had  stipulated
to  the two aggravating factors, but he argued that  he
should  not  be  held  to  this  stipulation.   Malutin
asserted that, because of Blakely, aggravating  factors
must  be  deemed  necessary elements  of  a  defendants
underlying  crime.  And, according to Malutin,  because
the   two  aggravators  were  really  elements  of  his
offense, the superior court could not lawfully accept a
stipulation concerning these aggravators from  Malutins
          attorney without also personally addressing Malutin and
obtaining  his  personal waiver of his  right  to  jury
trial on these aggravators.
          In  addition, Malutin asserted that there was
no   factual   basis  for  aggravator  (c)(19)   (prior
delinquency adjudication for felony conduct).   Malutin
noted  that he was adjudicated a delinquent  minor  for
the  offense of fourth-degree sexual abuse of  a  minor
which   is  not  a  felony,  but  rather  a   class   A
misdemeanor.  See AS 11.41.440(b).
          In  opposition to Malutins claim,  the  State
argued  that Malutin should not be allowed to  withdraw
his stipulation to the aggravating factors because that
stipulation  was  a necessary ingredient  of  the  plea
bargain and the negotiated sentence.
          With regard to Malutins claim that there  was
no  factual  basis  for aggravator (c)(19),  the  State
conceded that Malutins delinquency adjudication was for
fourth-degree  sexual abuse of a minor, and  that  this
offense  is  a misdemeanor.  However (as we explain  in
more  detail  below), the State argued that  reasonable
people  could  differ  as to whether  this  delinquency
adjudication  could  still  serve  as  the  basis   for
aggravator  (c)(19).   And the State  pointed  to  this
Courts decision in Connolly v. State, 758 P.2d 633, 638
(Alaska  App.  1988),  where  we  recognized   that   a
sentencing  judge  has  the  authority  to  accept  the
parties   stipulation  regarding  an   aggravating   or
mitigating factor if the existence of the factor is  in
reasonable   dispute   and  the   parties   stipulation
represents    their   compromise   (i.e.,   agreed-upon
resolution) of this dispute.
          Superior  Court Judge Eric A. Aarseth  denied
Malutins  motion,  concluding that the  right  to  jury
trial  recognized in Blakely was not retroactive  i.e.,
that  the  right  did not apply to any defendant  whose
conviction was entered before Blakely was decided.
          About two months later, this Court issued our
decision  in  Smart v. State, 146 P.3d 15 (Alaska  App.
2006).   In Smart, we held that, under Alaska law,  the
Blakely  right to jury trial is retroactive.  146  P.3d
at 40.
          Following  our  decision  in  Smart,  Malutin
filed  a  new  motion challenging his  sentence.   This
time,  Malutin asked the superior court to rescind  his
plea  agreement under Alaska Criminal Rule  35(a),  the
rule  that authorizes the superior court to correct  an
illegal  sentence.  Malutin argued that his  negotiated
sentence   was   illegal   under   Blakely.    Malutins
underlying  arguments were essentially the  same:   (1)
that  he  had  a  right to jury trial  with  regard  to
aggravator  (c)(5), (2) that the superior  court  could
not accept his attorneys stipulation to this aggravator
without also obtaining Malutins personal waiver of  the
right  to jury trial, and (3) that, in any case,  there
was no factual or legal basis for aggravator (c)(19).
          (As  Malutin  correctly noted in his  motion,
when a defendant believes that a negotiated sentence is
unlawful   under  Blakely,  the  defendant  must   seek
rescission of the entire plea agreement under  Criminal
Rule 11(h)  and not just deletion of the portion of the
sentence   that  purportedly  violates  Blakely.    See
Woodbury  v.  State,  151 P.3d 528,  532  (Alaska  App.
2007).)
          Malutins  motion  was  assigned  to  Superior
Court  Judge  Craig  Stowers.  In a  written  decision,
Judge  Stowers  denied  the motion  for  two  pertinent
reasons.   First, Judge Stowers concluded that  Blakely
was  not retroactive, and thus Malutin could not  claim
the  benefit of Blakely.  Judge Stowers understood that
his  ruling  was at odds with this Courts  decision  in
Smart, but he concluded that he was not bound by Smart.
          To  support  the conclusion that he  was  not
bound by our decision in Smart, Judge Stowers relied on
the  wording  of  Alaska Appellate Rule  507(b),  which
declares  that a decision issued by an appellate  court
either this Court or the Alaska Supreme Court  normally
takes  effect  ... on the day specified in  [Appellate]
Rule  512(a)  for return of the record  [to  the  trial
court].
          As  Judge Stowers noted, if a party petitions
the supreme court to hear a case decided by this Court,
the record is not returned to the trial court until the
supreme  court resolves the petition for hearing.   See
Appellate  Rule  512(a)(2).   Reading  Appellate   Rule
507(b) and Appellate Rule 512(a)(2) in conjunction, and
knowing  that the States petition for hearing in  Smart
remained unresolved,5 Judge Stowers concluded that this
Courts decision in Smart had not yet taken effect   and
thus  the Smart decision did not bind him (or any other
superior court judge).
          Judge Stowers alternatively ruled that,  even
if  he was bound by this Courts ruling that Blakely  is
retroactive  in  Alaska, Malutin  would  still  not  be
entitled  to relief because Malutin stipulated  to  the
two   contested  aggravating  factors  as  part  of   a
negotiated  plea.  The judge noted that Blakely  itself
holds  that a defendant can concede aggravating factors
and  give  up the right to jury trial.  The judge  also
noted that, in Woodbury v. State, this Court held  that
it  is not plain error for a sentencing judge to accept
a   defense  attorneys  concession  of  one   or   more
aggravating  factors without separately addressing  the
defendant   personally  and  obtaining  the  defendants
explicit  waiver  of  the right  to  jury  trial.   See
Woodbury, 151 P.2d at 531.

Does  this  Courts decision in Smart v.  State  control
this litigation?

          In  Smart,  this  Court held that  the  Sixth
Amendment  right  of jury trial recognized  in  Blakely
applies to Alaska defendants whose convictions pre-date
Blakely.   However,  as explained above,  the  superior
court  ruled that our decision in Smart is not  binding
on  any trial court.  The superior court noted that the
State has petitioned the Alaska Supreme Court to review
our  decision,  and  the  supreme  court  has  not  yet
resolved   the  States  petition.   Because  of   these
circumstances,  and because Appellate Rule  507(b)  and
Appellate  Rule  512(a) (taken in conjunction)  declare
that  the decision of an appellate court normally takes
effect  only  when all further avenues  of  review  and
reconsideration  have  been exhausted  or  waived,  the
superior court ruled that the decision in Smart had not
yet taken effect.
          On  appeal, Malutin argues that the  superior
court  was  wrong,  and  that  our  decision  in  Smart
controls  this  litigation.  The State, for  its  part,
does  not offer a defense of the superior courts ruling
on this issue.  Rather, the State argues that the issue
of  Blakelys retroactivity is moot  because  (according
to the State) Malutin is not entitled to relief even if
Blakely applies to his case.
          As  we  explain in the next section  of  this
opinion,  we  agree with the State  that  even  if  our
decision in Smart controls this litigation, Malutin  is
not  entitled to relief.  For this reason, we need  not
decide  whether the superior court correctly  construed
Appellate Rule 507(b).  However, because this issue  is
a  significant one, we believe that we should include a
short  explanation  of the history  of  Appellate  Rule
507(b)  not to announce any opinion on the question  of
whether  the  superior courts ruling was  correct,  but
rather to inform any later litigation of this point.
          Appellate Rule 507 was first enacted in 1980,
as  part  of a comprehensive revision and restructuring
of  Alaskas  rules of appellate procedure.6   As  first
enacted,  paragraph  (a)  of  Rule  507  directed   the
appellate clerk to issue a mandate at the conclusion of
the  appellate proceedings.  As defined in this  former
version  of Rule 507(a), the mandate was a court  order
separate from the opinion issued by the appellate court
that  inform[ed] the trial court of the proceedings  in
the  appellate  courts and that formally returned  full
jurisdiction  over  the case ...  to  the  trial  court
(unless the mandate specified otherwise).
          Paragraph (b) of Rule 507 contained a set  of
rules  for determining when the clerk should issue  the
mandate.   These rules are the same ones now  found  in
Appellate  Rule 512(a) for determining when the  record
should be returned to the trial court.  In other words,
the  clerk issued the mandate when all further  avenues
of  review  and reconsideration had been  exhausted  or
waived.
          This practice of issuing a mandate at the end
of  the appellate proceedings was a continuation of the
practice codified in Alaskas predecessor rule,  Supreme
Court  Rule 28.7  Indeed, even today, this practice  is
followed  by the federal courts (see Federal  Appellate
Rule  41)  and  many state courts.8   As  explained  in
Wright,  Miller,  and  Coopers  Federal  Practice   and
Procedure:  Jurisdiction and Related Matters  (3rd  ed.
1999), the mandate is the appellate courts order to the
lower court, directing the lower court to take whatever
further action is necessary and/or appropriate in light
of the appellate courts decision.  The spreading of the
mandate  is  the act that formally returns jurisdiction
over the case to the lower court.9
          In  other words, the appellate courts opinion
was  its  statement  of the law,  while  the  appellate
courts  mandate  was  its order returning  jurisdiction
over  the  case  to the lower court, and directing  the
lower  court to perform whatever actions were necessary
or proper to carry out the appellate courts decision in
that particular case.
          One  potential  problem with this  system  is
that the directions to the trial court contained in the
mandate might differ from the actions seemingly  called
for  by the appellate courts opinion.  A second problem
with  this system is that, if the appellate court fails
to issue a mandate (even if this failure is a result of
mistake  or  oversight), the lower  court  might  never
resume  lawful control over the case.  See, e.g.,  Bell
v.  Thompson, 545 U.S. 794, 125 S.Ct. 2825, 162 L.Ed.2d
693  (2005).  Thus, whatever decision might  have  been
announced by the appellate court, the lower court would
have  no  authority to put the appellate decision  into
effect in the particular case before it.
          In  December  1982, the Alaska Supreme  Court
amended  Appellate  Rules 507 and 512  in  a  way  that
solved  these problems  by eliminating the  requirement
of  a  mandate.   See  Supreme  Court  Order  No.  551,
effective  February 1, 1983, which the court  described
(in  the  title  of  the  order)  as  an  amendment  to
eliminate the issuance of mandates.  In this order, the
supreme court re-wrote paragraph (a) of Appellate  Rule
507 to its present form.  Rule 507(a) now says:
     
          The  opinion of the appellate court,  or
     its  order  under Rule 214, shall  constitute
     its   judgment,   and   shall   contain   its
     directions  to the trial court, if  any.   No
     mandate shall be issued.
     
          As  explained  above,  the  mandate
performed  two  functions:  it contained  the
appellate  courts  directions  to  the  lower
court,  and  it  was the order that  formally
returned  jurisdiction over the case  to  the
          lower court.  The revised version of Rule
507(a)  provides  a  substitute  method   for
fulfilling  the mandates first  function   by
requiring the appellate court to include  its
directions to the lower court in the text  of
the opinion itself.  But Rule 507(a) does not
provide a substitute for the mandates  second
function:   the formal return of jurisdiction
to  the  lower court, giving the lower  court
the  authority  to  put the appellate  courts
decision into effect in the case before it.
          This second function of the mandate
is  now  addressed in paragraph (b)  of  Rule
507:

     Unless  the  opinion or order  expressly
states   otherwise,  the  judgment   of   the
appellate   court  takes  effect   and   full
jurisdiction  over the case  returns  to  the
trial  court  on  the day specified  in  Rule
512(a) for return of the record.  However, in
an  appeal under Appellate Rule 207  relating
to   [the   bail]  release  [of  a   criminal
defendant] prior to judgment, the judgment of
the  Court of Appeals takes immediate  effect
and  full jurisdiction over the case  returns
to  the  trial court on the day the Court  of
Appeals  issues its opinion or order deciding
the appeal.

In other words, in all appellate cases except
pre-sentencing bail appeals,  the  return  of
jurisdiction to the trial court  takes  place
automatically on the day that the  record  is
returned to the trial court, as determined by
the rules set forth in Appellate Rule 512(a).
          As  explained  above,  Rule  512(a)
codifies  the  same rules  that  used  to  be
contained  in  the pre-1983 version  of  Rule
507(b).   That is, Rule 512(a) calls for  the
record to be returned to the lower court when
all  further avenues of appellate review  and
reconsideration have been exhausted or waived
the  same rule that governed the issuance  of
the  appellate  courts mandate  under  former
Rule 507(b).  Thus, under the current version
of  Rules  507 and 512, jurisdiction  over  a
case  returns to the lower court at precisely
the  same  time that jurisdiction would  have
been  returned to the lower court  under  the
previous version of Rule 507.
          The  supreme court may have thought
that the current version of Rule 507 (read in
conjunction  with  Rule  512)  was  simply  a
substitute for the pre-1983 version  of  Rule
507   with  the  advantage that  the  law  no
longer  required the procedural  complication
of a separately issued mandate.  But as Judge
Stowerss ruling in Malutins case illustrates,
the  supreme  court introduced  an  ambiguity
into  the  law  when the court re-wrote  Rule
507(b)  to  say  that  the  judgment  of  the
appellate court takes effect ... on  the  day
specified  in Rule 512(a) for return  of  the
record.
          The  history  of Rule 507  suggests
that  this  language was intended to  address
(and  provide a substitute for) the  mandates
role  as the appellate courts judgement   the
formal order returning jurisdiction over that
particular  case  to  the  lower  court,  and
directing the lower court to comply with  the
appellate  courts decision.   Interpreted  in
this fashion, Rule 507(b) would not delay the
precedential  effect of the appellate  courts
decision insofar as the court had interpreted
or defined the law for future cases.  Rather,
Rule  507(b)  would delay only the  operative
effect  of  the  appellate  courts  judgement
i.e.,  the courts formal order affecting  the
lower courts judgement in the case before it.
          But  as  we  explained  above,  the
superior  court in Malutins case  interpreted
this wording to mean that the decision of  an
appellate  court  has  absolutely  no  effect
until  the time specified in Rule 512(a)  has
arrived   i.e., until all further avenues  of
review   and   reconsideration   have    been
exhausted  or waived.  Under this reading  of
Rule  507(b), the statements of law contained
in  an appellate courts opinion would have no
binding  effect on any court (even that  same
appellate court itself) until the record  was
returned   to   the  lower  court   in   that
particular case.
          To our knowledge, this point of law
has  never before been addressed in an Alaska
appellate  decision.  And the law from  other
jurisdictions provides no clear answer.
          The  Kansas  Court of  Appeals  has
declared that the answer is self-evident:  It
requires  no  citation of authority  to  note
that Court of Appeals decisions do not become
the  law  of this state until a petition  for
[supreme  court] review, if filed,  has  been
denied and a mandate has been issued.   State
v. Oliver, 46 P.3d 36, 38 (Kan. App. 2002).
          But  other states do not find  this
principle   of   law   to  be   self-evident.
Instead,  these  states  declare   either  by
court   decision   or   court   rule     that
interpretations  of the  law  adopted  by  an
intermediate appellate court are  immediately
binding, and remain so until such time as the
intermediate courts decision is reversed by a
higher  court.   See  Hickey  v.  Riera,  774
N.E.2d  1,  10  (Ill. App. (1st Dist.)  2001)
(stating  that  [j]udgments of the  appellate
court  are operative from the time  of  their
entry);  Upton v. Swedish American  Hospital,
1910  WL  2204  (Ill. App. (1st Dist.)  1910)
(same); Ex parte Rutherford, 556 S.W.2d  853,
855 (Tex. Civ. App. 1977) (an application for
writ  of  error to the [Texas] Supreme  Court
[merely] deprives the judgment of a Court  of
Civil  Appeals  of  the  degree  of  finality
contemplated  by  the statute  governing  the
issuance  of mandates); California  Rules  of
Court   8.1115(d)  (A  published   California
opinion may be cited or relied on as soon  as
it  is  certified for publication or  ordered
published.).
          As  we  noted  at the beginning  of
this  section, we do not need to resolve this
issue  in  Malutins case.  However,  we  take
judicial  notice  that,  each  year,  several
dozen  of  this Courts decisions  become  the
subjects  of  petitions for  hearing  to  the
Alaska Supreme Court.  The great majority  of
these  petitions  are  denied,  but  when   a
petition   is  granted,  the  supreme   court
sometimes takes two or three years to  decide
the case.10
          Accordingly, there is  some  reason
to  expect  that  the  issue  presented  here
i.e.,   the  legal  status  of  this   Courts
interpretations of the law in cases  where  a
petition  for  hearing  has  been  filed  and
remains unresolved  will be raised again.  If
this  issue is raised again, the trial courts
and  the  litigants will have the benefit  of
our discussion here.

Why we conclude that Malutin is not entitled to relief
even if the Blakely right to jury trial applies to
his case

     If  we assume that the Blakely right of  jury
trial applies retroactively to Malutins case, this
means  that Malutin can challenge the legality  of
his  sentence  by  attacking the  two  aggravating
factors  that  the  superior court  relied  on  to
impose  a  sentence above the presumptive  term.11
(However, as we explained above, and as we held in
Woodbury, Malutins remedy is not reduction of  his
     sentence, but rather rescission of  his  plea
agreement.)
          Because  Malutin did not demand a jury  trial
on  these  aggravators during his  original  sentencing
proceedings,  he  must now show that any  violation  of
Blakely amounted to plain error.  Lockuk v. State,  153
P.3d 1012, 1017-18 (Alaska App. 2007).

  Malutins   claim  that  the  sentencing   judge   was
  required  to obtain his personal waiver of the  right
  to jury trial

          As  explained  above, Malutin and  the  State
agreed  that  he would receive a sentence of  12  years
imprisonment with 7 years suspended.  But under Alaskas
presumptive sentencing law, the superior court  had  no
authority to impose this negotiated sentence unless one
or  more aggravating factors were proved.  Accordingly,
to  carry  out  the  plea bargain,  Malutin  agreed  to
concede  aggravators  (c)(5)  (vulnerable  victim)  and
(c)(19)  (prior  delinquency  adjudication  for  felony
conduct).
          With  respect  to aggravator (c)(5),  Malutin
now  argues  that  it is unlawful to hold  him  to  his
concession  both because he was unaware of his right to
a  jury  trial  on  this aggravator,  and  because  the
superior   court   relied  on  the  defense   attorneys
concession  of this aggravator without ever  addressing
Malutin personally to obtain his explicit waiver of the
right to jury trial.
          In  essence, Malutin asks us to overrule  our
decisions in Lockuk and Cooper v. State, 153  P.3d  371
(Alaska  App. 2007).  In both Lockuk (which involved  a
pre-Blakely  sentencing) and Cooper (which  involved  a
post-Blakely  sentencing), we held  that  a  sentencing
court  does  not  commit plain error by  relying  on  a
defense  attorneys  concession of aggravating  factors,
without  obtaining  the defendants personal  concession
and  waiver  of  jury trial regarding the  aggravators.
Lockuk, 153 P.3d at 1016; Cooper, 153 P.3d at 372-73.
          Our  decisions  in  Lockuk  and  Cooper  were
premised  on  the fact that courts around  the  country
have  reached differing conclusions as to  whether,  in
light  of  Blakely, a sentencing judge can  rely  on  a
defense  attorneys  concession of  aggravating  factors
without   also  addressing  the  defendant  personally.
Because  reasonable judges can (and do) differ  on  the
legality  of this procedure under Blakely, any arguable
error in this procedure is not plain.12
          In  his  brief to this Court, Malutin  argues
that  a post-sentencing attack on a negotiated sentence
would be an empty remedy if [a defense attorneys] prior
stipulations to aggravating factors were set in  stone.
But  this  argument misses the point.   We  have  never
ruled  and we do not rule now  that a defense attorneys
          stipulation to aggravating factors is set in stone.
Rather,  we hold that if a defendant wishes  to  attack
such  a stipulation after the fact, the defendant  must
present a valid ground for relief.
          Here,   Malutin  claims  that  his  attorneys
stipulation to aggravator (c)(5) is invalid as a matter
of  law  on the theory that, under Blakely, an attorney
has  no authority to bind a client on such matters, and
that  the sentencing court can not proceed without  the
defendants  express, in-court waiver of  the  right  to
jury  trial.   To prevail on this claim,  Malutin  must
show plain error.  And as we held in Lockuk and Cooper,
this  procedure is not plain error.  Therefore, Malutin
is not entitled to relief on this claim.

  Malutins claim that there was no arguable factual  or
  legal basis for aggravator (c)(19)

          In  addition  to  aggravator (c)(5),  Malutin
also stipulated to aggravator (c)(19).  This aggravator
applies  to  defendants who have  a  prior  delinquency
adjudication for conduct that would have been a  felony
if  committed by an adult.  Malutin argues  that  there
was  no factual or legal basis for this aggravator, and
that  therefore  his  stipulation to  this  factor  was
improper.   See  Love  v. State, 799  P.2d  1343,  1346
(Alaska  App.  1990), and Hartley v.  State,  653  P.2d
1052,  1056  (Alaska  App. 1982)   both  holding  that,
despite the willingness of the parties to stipulate  or
ignore  the  existence  of aggravating  and  mitigating
factors, a sentencing court must independently evaluate
aggravators and mitigators.
          Malutins  argument does not really  hinge  on
the  facts of his case, but rather on the legal meaning
of the phrase, conduct that would have been a felony if
committed by an adult.
          The    parties   agree   that   Malutin   was
adjudicated a delinquent minor because he committed the
offense  of  fourth-degree sexual abuse of a  minor  as
defined  in AS 11.41.440(a)(1).  In other words,  at  a
time  when  Malutin was younger than 16, he engaged  in
sexual contact with a child who was younger than 13 and
who  was  at  least  three years younger  than  Malutin
himself.
          Fourth-degree sexual abuse of a  minor  is  a
misdemeanor,   not   a  felony.13    Seemingly,   then,
Malutins  delinquency  adjudication  for  this  offense
could not support a finding of aggravator (c)(19).
          The  State,  however,  points  out  that   if
Malutin had been an adult (i.e., if he had been  18  or
older),  his sexual contact with a child under the  age
of  13 would have been a class B felony  the offense of
second-degree   sexual   abuse   of   a   minor   under
AS  11.41.436(a)(2).  Based on this, the State contends
that   Malutins  delinquency  adjudication  was  indeed
          premised on conduct that would have been a felony if
committed by an adult.
          Although the States suggested reading of  the
statutory  language might be plausible at first  blush,
we  must  reject the States interpretation  because  it
leads to unfair and incongruous results.
          The  legislative  policy behind  all  of  the
aggravating  factors listed in AS  12.55.155(c)  is  to
identify   those  factors  that  might  distinguish   a
particular defendants background or conduct from  those
of a typical first, second, or third felony offender.14
With  particular  regard  to  aggravator  (c)(19),  the
legislatures apparent purpose was to allow a sentencing
court  to increase the applicable presumptive  term  if
(1)  the defendant was technically a first, second,  or
third  felony offender, but (2) the defendant had  been
charged  as  a juvenile and adjudicated delinquent  for
conduct that, but for the defendants youth, would  have
been a felony.
          The  application  of  aggravator  (c)(19)  is
straightforward in cases where the defendants  juvenile
offense  was  a  crime  that  does  not  hinge  on  the
defendants  age.   But when the defendants  age  is  an
element  of  the  crime,  the  analysis  becomes   more
difficult.
          Some conduct is a crime only if the defendant
is  below a certain age.  An example of this is  under-
age  drinking.  Other conduct is criminal no matter how
old the defendant is, but it is a more serious crime if
the  defendant is above a certain age.  An  example  of
this is the conduct at issue in Malutins case  engaging
in  sexual contact with a person younger than 13 and at
least 3 years younger than the defendant.  This conduct
is  a  misdemeanor  (fourth-degree sexual  abuse  of  a
minor)  if  the defendant is younger than 16,15  but  a
felony  (second-degree sexual abuse of a minor) if  the
defendant  is 16 or older.16  Finally, some conduct  is
not  a  crime at all unless the defendant  is  above  a
certain age.  Examples of this are the current statutes
defining  second- and third-degree sexual  abuse  of  a
minor (consensual sexual penetration or contact with  a
13-,  14-,  or  15-year-old).  Both of  these  offenses
require  proof that the offender was at least 17  years
old  and  was also at least four years older  than  the
victim.17
          This  third category of offenses   i.e.,  the
sexual  offenses that require proof that the  defendant
was  at  least a certain age  most clearly demonstrates
the  flaw in the States argument concerning the meaning
of  aggravator  (c)(19).  The legislatures  reason  for
including   the  age  requirement  seems  clear:    the
legislature did not intend the sexual abuse statutes to
encompass  consensual sex between teenagers of  similar
ages.  Thus, there is no crime if a 17-year-old engages
in  consensual  sexual intercourse  or  sexual  contact
          (e.g., genital touching) with a 14- or 15-year-old.
          If, by chance, a juvenile who engaged in such
conduct  were later to commit a crime as an  adult,  it
would seemingly make little sense for the State to  ask
the  court  to impose a harsher sentence on the  theory
that,  if the defendant had only been older when he  or
she  engaged in sexual activity with another  teenager,
the  sexual activity would have been a crime.  The fact
that  the  defendant previously engaged in non-criminal
sexual  activity with another teenager of  similar  age
does not indicate anything about the defendants general
criminal propensity or dangerousness.
          The   States   suggested  interpretation   of
aggravator  (c)(19)  is  based  on  this  same   flawed
reasoning.  The State argues that, even though a  prior
act  of sexual contact may only have been a misdemeanor
because of the ages of the two teenagers involved, that
act  of  sexual  contact  should  nevertheless  trigger
aggravator  (c)(19)  because the sexual  contact  would
have  been  a  felony  if  the circumstances  had  been
different  that is, if the defendant had been older.
          But the defendant was not older.  That is why
the   offense  is  of  lesser  seriousness    why   the
legislature classified it as a misdemeanor.
          At   its   heart,  the  States  argument   is
inconsistent   with  the  policy  that  underlies   the
legislatures  creation  of the aggravating  factors  in
AS  12.55.155(c).  As we explained, the function of the
aggravating  factors  is  to identify  defendants  who,
because  of their history and/or their conduct  in  the
present   case,  potentially  present  a  significantly
greater  degree  of  danger or blameworthiness  than  a
typical   first,  second,  or  third  felony   offender
convicted of the same crime.
          (Although  proof  of an aggravator  does  not
necessarily  mean that the defendant should  receive  a
sentence greater than the applicable presumptive  term,
proof  of the aggravator expands the range of sentences
available  to  the  judge  when  he  or  she  exercises
sentencing discretion using the Chaney criteria.18)
          Malutin was adjudicated delinquent for an act
of  fourth-degree  sexual  abuse  of  a  minor   sexual
contact  with a child who was under the age of 13,  and
who was at least 3 years younger than Malutin.  Because
this  underlying  conduct is a crime, one  could  argue
that  this conduct tends to show that Malutin  is  more
dangerous or blameworthy than a typical felony offender
in  his  situation.  But aggravator  (c)(19)  does  not
encompass  all delinquency adjudications  for  unlawful
conduct  of  any  type.  Rather,  the  legislature  has
limited  the  aggravator  to delinquency  adjudications
based  on  conduct  that would have been  a  felony  if
committed by an adult.
          For  the reasons explained here, we interpret
this  phrase  to mean conduct defined as a  felony   in
          other words, misconduct serious enough that the
defendant  would have been subject to felony  penalties
if the defendant had been tried and convicted under the
adult  criminal justice system rather than the juvenile
justice system.
          Fourth-degree sexual abuse of a  minor  is  a
class   A  misdemeanor.   Even  if  Malutin  had   been
prosecuted under the adult criminal justice system  for
this  crime,  he  could not have been  convicted  of  a
felony.   Thus,  Malutins delinquency adjudication  for
this  offense could not serve as the factual  predicate
for aggravator (c)(19).

  Why this error does not entitle Malutin to relief

          Even   though  we  agree  with  Malutin  that
aggravator  (c)(19)  was misapplied  in  his  case,  we
nevertheless  conclude  that  he  is  not  entitled  to
rescission   of   his  plea  bargain.    Malutin   also
stipulated  to aggravator (c)(5), and the existence  of
any  single aggravator was sufficient to establish  the
superior  courts  authority to  impose  the  negotiated
sentence.19
          The only argument that Malutin raises against
aggravator  (c)(5)  is  the argument  we  have  already
rejected  the argument that it was plain error for  the
sentencing   judge   to  rely  on  Malutins   attorneys
concession  of this aggravator without also  personally
addressing  Malutin himself and obtaining  his  express
waiver of the right to jury trial.  Therefore, Malutins
sentence  remains legal despite the error with  respect
to aggravator (c)(19).
          Malutin  contends that we should  not  affirm
the  superior courts decision on this basis because the
weight  that the [sentencing] judge ... placed  on  the
[mistaken]  applicability  of  aggravator  (c)(19)  can
never be determined.  We disagree.  The record is clear
that  the  sentencing judge placed no  weight  on  this
individual aggravator.
          Malutins  stipulation to  aggravators  (c)(5)
and  (c)(19) was an integral part of the plea agreement
because the negotiated sentence that Malutin agreed  to
receive   12 years imprisonment with 7 years  suspended
was  legally  impossible unless one or more aggravating
factors  were  proved.  And because  Malutins  specific
sentence  was agreed upon beforehand, the  parties  did
not  intend  for the sentencing judge to  engage  in  a
weighing  of  the two aggravating factors,  as  if  the
judge  were  conducting a typical sentencing.   Rather,
the  parties presented a specific proposed sentence  to
the  superior court, and the only question  before  the
court  was  whether to accept the agreed-upon sentence.
See Alaska Criminal Rule 11(e).
          Either of the two aggravators would have been
enough, standing alone, to authorize the superior court
          to impose the agreed-upon sentence, and the record does
not  explain why the parties agreed that Malutin  would
concede  two.   But there is nothing in the  record  to
suggest   that  the  parties  contemplated   that   the
sentencing  judge  would weigh  these  two  aggravators
individually   or,  indeed, that the  sentencing  judge
would  engage in any exercise of sentencing  discretion
other than the decision whether to accept or reject the
agreed-upon sentence.
          For  these  reasons,  we  conclude  that  the
superior  court correctly rejected Malutins claim  that
his sentence was illegal.

Malutins sentence appeal

          In  addition  to the claims we  have  already
discussed,  Malutin  also argues that  he  received  an
excessive   sentence  in  the  most  recent   probation
revocation proceedings.
          After   serving  his  initial  5   years   of
imprisonment (less good time), Malutin was released  on
probation.   The  State first petitioned  the  superior
court  to revoke Malutins probation in August 14, 2000.
The  States  next  revocation  petition  was  filed  in
February 2002.  The States third petition was filed  in
December  2002.   The  fourth  petition  was  filed  in
January  2005.   The  fifth (and current)  petition  to
revoke Malutins probation was filed in January 2006.
          As  a  result of the first petition,  Malutin
was  ordered  to  serve six months  of  his  previously
suspended  jail  time.   As  a  result  of  the  second
petition, Malutin was ordered to serve an additional 60
days  of  his  sentence.   As a  result  of  the  third
petition, the superior court sentenced Malutin  to  the
time  he served awaiting the disposition hearing.   And
as a result of the fourth petition, Malutin was ordered
to serve one more year of his sentence.
          In  response to the fifth petition to  revoke
probation, Malutin informed the superior court that  he
intended  to  reject any further probation supervision.
Malutin  told the court that, if the court  decided  to
revoke  his  probation  again, he  wanted  a  flat-time
sentence.   After reviewing Malutins record, and  after
considering the arguments of the parties, Judge Aarseth
imposed all of Malutins remaining jail time.
          Malutin contends that Judge Aarseth failed to
conduct  a  meaningful evaluation of Malutins  sentence
under   the  Chaney  sentencing  criteria   i.e.,   the
sentencing goals first enunciated in State v.  Chaney20
and  now  codified  in AS 12.55.005.   Malutin  further
contends   that  Judge  Aarseth  committed   error   by
reflexively  imposing  all of Malutins  remaining  jail
time  simply because Malutin refused further  probation
supervision.21
          We  have examined the record, and it does not
          support Malutins claims.
          As  we have explained, Malutins probation had
been   revoked  several  times  prior  to  the  current
revocation  proceedings.  We note, in particular,  that
Malutin  had  failed to complete one of the significant
conditions   of   his   probation:    substance   abuse
treatment.
          Malutins alcohol abuse was pertinent  to  his
underlying   crime,   and   to   his   prospects    for
rehabilitation,  because  as Malutins  attorney  stated
his  crime was committed at a time when he was  clearly
intoxicated [and] out of control.  Malutin  began,  but
then   failed   to   complete,  the  required   alcohol
treatment.   He participated in the in-patient  portion
of the treatment, but then he was terminated from [the]
aftercare  [program] for noncompliance.   In  addition,
while  on  probation, Malutin committed the offense  of
reckless driving, and he consumed alcoholic beverages.
          The  superior court also properly  considered
the  seriousness of Malutins underlying crime  and  the
consequent  community  condemnation  of  his   actions.
Although Malutin negotiated a plea to a reduced  charge
of  attempted first-degree sexual abuse of a minor, his
conduct apparently constituted the more serious  crimes
of   first-degree   sexual  assault  and   first-degree
burglary.  Malutin broke into a house in the middle  of
the  night and sexually attacked an eight-year-old girl
who was sleeping inside.
          The   sentencing  record  shows  that   Judge
Aarseth  engaged  in  a  lengthy consideration  of  the
Chaney factors.  Judge Aarseth noted that the probation
conditions required by Malutins plea agreement were not
just  for  [the benefit of] Mr. Malutin,  but  for  the
public  [as well].  The judge also noted that,  because
Malutin   had  decided  to  reject  further   probation
supervision, he posed a greater danger of recidivism in
the future:
     
          The  Court:  [I]n terms of Mr.  Malutins
     successes  [on probation] and the  nature  of
     his   violation   ...  ,   [his]   supervised
     probation  [acts  as] a  deterrent  ...  [to]
     other   violations[,   and]    more   serious
     violations.
          .  .  .
          [T]he   public  has  a  right  to   have
     [Malutin]  submit to probation.  And  if  [he
     doesnt]   want   to,  then  [the   sentencing
     criterion of] community condemnation [becomes
     more significant].  The rest of the suspended
     time gets imposed.
     
     Judge Aarseth concluded that the criteria  of
     isolation  and community condemnation  called
     for  impos[ition  of] the  remainder  of  Mr.
     Malutins time.
               Malutin  argues that Judge Aarseths
     final comments  his repeated conclusion  that
     the remainder of Malutins jail time should be
     imposed   indicate that the judge  failed  to
     consider the Chaney criteria as a whole,  and
     that  he  instead  made  his  decision  based
     solely  on  the  criteria  of  isolation  and
     community condemnation.
               But  Judge  Aarseth  did  not  make
     these comments in isolation.  Earlier in  the
     sentencing  hearing, the judge engaged  in  a
     lengthy   dialog   with   Malutins   attorney
     concerning Malutins treatment record and  the
     proper  response  to  Malutins  decision   to
     reject further probation.
               In addition, at the very end of his
     sentencing  remarks, Judge Aarseth  expressly
     addressed   the  question  of   whether   the
     entirety  of  Malutins  remaining  jail  term
     should  be  imposed  and the judge  clarified
     that  he had not reflexively imposed  all  of
     Malutins remaining jail time:
     
     The  Court:  [T]here shouldnt  be  [any]
mistake [as to whether] Ive walked into  this
case  [already]  knowing that  I  was  simply
going to flat-time Mr. Malutin  or [thinking]
that  thats simply what you do, and there  is
no other choice. I dont believe thats what Im
doing.   I  think [the] record [rebuts]  that
... .

          We are convinced that Judge Aarseth
engaged  in  an appropriate consideration  of
the  facts of Malutins case under the  Chaney
criteria   (including  Malutins  refusal   to
submit to further probation supervision), and
we  conclude that his decision to impose  the
remainder of Malutins term of imprisonment is
not  clearly  mistaken.  We therefore  uphold
Malutins sentence.22

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1  The  completed crime of first-degree sexual abuse of a minor
is  an unclassified felony, see AS 11.41.434(b), so an attempt to
commit this crime is a class A felony.  See AS 11.31.100(d)(2).

  2 Former AS 12.55.125(c)(1) (pre-March 2005 version).

  3  Former AS 12.55.125(g) and former AS 12.55.155(a) (pre-March
2005 versions); Milligrock v. State, 118 P.3d 11, 14 (Alaska App.
2005).

4 See Blakely, 542 U.S. at 301, 124 S.Ct. at 2536.

5  It  still remains unresolved as of today.  See  State  v.
Smart,  Supreme  Court  File  No.  S-12493;  petition  filed
November 13, 2006; petition granted February 13, 2007.

6  See  Supreme Court Order No. 439 (effective November  15,
1980).

7 See the first two paragraphs of the 1980 commentary to Rule
507.

8  See,  e.g.,  Boldin v. State, 2008 WL 4958294,  *1  (Ark.
November  20,  2008)  (Where  [a  defendants  judgment]   of
conviction [has been] affirmed on appeal, Arkansas  Rule  of
Criminal Procedure Rule 37.2(c) requires that [a defendants]
petition  for  postconviction relief be filed  within  sixty
days  of  the  issuance of the appellate  courts  mandate.);
Robbins v. State, 992 So.2d 878, 879 (Fla. App. (5th  Dist.)
2008) (noting that, under Florida Rule of Criminal Procedure
3.800(c),  a  court may reduce or modify a  sentence  within
sixty  (60) days after imposition of the sentence  or  after
receipt  by  the court of a mandate issued by the  appellate
court  on affirmance of the judgment and/or sentence  on  an
original  appeal.); State v. Snow, 195 P.3d 282,  286  (Kan.
App.  2008) (noting that, under Kansas law, the intermediate
court  of  appeals  can interpret, and can  review  a  trial
courts  compliance  with, a mandate  issued  by  the  Kansas
Supreme  Court);  Jackson v. State,  __  A.2d  __,  2008  WL
4726286,  *2 (Md. App. October 29, 2008) (quoting a Maryland
statute  which, by its terms, applies to all  cases  in  the
Court  of Special Appeals in which the mandate has not  been
issued  as of the effective date of this Act.); In re  Shah,
__  So.2d  __,  2008 WL 4427951, *3 n. 5 (Miss.  October  2,
2008)  (noting  that,  [p]ursuant  to  Mississippi  Rule  of
Appellate Procedure 41(a), the mandate of the Supreme  Court
shall issue seven days after entry of the order denying  the
motion  for  rehearing.); State v. Hausmann, __  N.W.2d  __,
2008  WL  4853640, *4 (Neb. App. November 10, 2008)  (noting
that,  under  Nebraska law, an appellate courts jurisdiction
over  a  case  ends  when  the [lower]  court  acts  on  the
[appellate] courts mandate); In re K.Y., __ S.W.3d __,  2008
WL  4809548,  *3 (Tex. App. (14th Dist.) November  6,  2008)
(holding  that a trial court is not deprived of jurisdiction
by the filing of an interlocutory appeal, and thus the trial
court  has the authority to proceed with a trial even before
the  appellate court issues its mandate in the interlocutory
appeal).

9 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
Federal  Practice and Procedure:  Jurisdiction  and  Related
Matters (3rd ed. 1999),  3987, Vol. 16A, pp. 735-36.

10  According to records informally kept by this Court over
the past 15 years, the average elapsed time is 525 days
(slightly  under 1 years) between the order granting  a
petition for hearing and the supreme courts issuance of
an  opinion resolving the petition.  In some instances,
the  supreme court has taken more than three  years  to
decide the case.  See State v. Coon, File No. S-6893 (3
years  9  months); State v. Blank, File No.  S-9721  (3
years  8 months); Martin v. State, File No. S-10139  (3
years  2 months); Munson v. State, File No. S-10444  (3
years 7 months).

11  See Walsh v. State, 134 P.3d 366, 373-74 (Alaska App.
2006)  (holding that Criminal Rule 35(a)  is  a  proper
procedural  vehicle for raising a Blakely attack  on  a
sentence).

12Lockuk, 153 P.3d at 1016; Cooper, 153 P.3d at 373.

13See AS 11.41.440(b).

14See Petersen v. State, 930 P.2d 414, 439 (Alaska App.1996);
Juneby  v. State, 641 P.2d 823, 833, 835 (Alaska App. 1982),
modified on other grounds, 665 P.2d 30 (Alaska App. 1983).

15AS 11.41.440(a)(1).

16AS 11.41.436(a)(2).

17See  AS 11.41.436(a)(1) (second-degree sexual abuse  of  a
minor);  AS  11.41.438(a) (third-degree sexual  abuse  of  a
minor).

18See  Juneby v. State, 641 P.2d 823, 833, 835, 838  (Alaska
App.  1982),  as modified on rehearing, 665 P.2d  30,  32-33
(Alaska App. 1983).

19See Cleveland v. State, 143 P.3d 977, 987 (Alaska App. 2006)
(holding  that,  under  Alaskas pre-March  2005  presumptive
sentencing  law,  the proof of any single  Blakely-compliant
aggravating factor was sufficient to satisfy Blakely).

20477 P.2d 441, 443-44 (Alaska 1970).

21See  DeMario  v.  State, 933 P.2d 558, 962  (Alaska  1997)
(holding  that,  when  a  defendant refuses  probation,  the
sentencing judge [must] not automatically impose all [of the
defendants]  previously suspended time  but  must  carefully
evaluate the case under the Chaney criteria and then  impose
a sentence based on the totality of circumstances).

22  See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an  appellate court is to uphold a sentencing decision
unless the sentence is clearly mistaken).

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