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West v. State (1/22/2010) ap-2252

West v. State (1/22/2010) ap-2252

                             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


DWAYNE EUGENE WEST,                
                                   
                    Petitioner       Court of Appeals No. A-10150
,                                  Trial Court No. 3AN-05-12292 Cr
                                   
               v.                  
                                         O  P  I  N  I  O  N
STATE OF ALASKA,                   
                                     No. 2252    January 22, 2010
                    Respondent     
.
End of Caption
          Petition for Review from the Superior  Court,
          Third  Judicial District, Anchorage,  Patrick
          J. McKay, Judge.

          Appearances:    Krista  Maciolek,   Assistant
          Public  Advocate, Palmer, and Rachel  Levitt,
          Public    Advocate,   Anchorage,   for    the
          Petitioner.   Diane  L. Wendlandt,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Respondent.

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

          MANNHEIMER, Judge.

          The  defendant  in this case, Dwayne Eugene  West,  was
found guilty of first-degree robbery following a jury trial,  but
he has not yet been sentenced.  First-degree robbery is a class A
felony,1  and  West is a first felony offender  for  purposes  of
Alaskas  
presumptive sentencing law. Under the applicable sentencing statute, AS 12. 55.125(c), Wests presumptive sentencing range hinges on whether he personally possessed or used a firearm during the commission of the offense. West faces a sentencing range of 5 to 8 years if he did not carry a firearm, but a sentencing range of 7 to 11 years if he carried a firearm.2
In a pre-sentencing pleading, West asserted that he had a Sixth Amendment right to jury trial with respect to this issue of fact. The superior court agreed that, under Blakely v. Washington,3 West was entitled to a jury trial on the question of whether he personally carried a firearm during the robbery because, if this issue were decided in the governments favor, West would face a higher presumptive sentencing range.
But when the superior court offered West a jury trial on this issue, West responded that any renewal of the proceedings would violate the double jeopardy clause. West asserted that the superior court was obliged to sentence him within the lower presumptive range, as if the government had attempted but had failed to prove that he personally carried a firearm. When the superior court rejected Wests double jeopardy argument and, instead, ordered a jury trial on the disputed sentencing factor, West petitioned this Court to review the superior courts ruling, and we granted review.
We now hold that, in this situation, it does not violate the double jeopardy clause to hold a jury trial on the disputed factual issue.
A more detailed explanation of the facts
of this case

          West  and four co-defendants were brought  to
trial  on six counts of first-degree robbery (one count
for  each  of six victims) and seven counts  of  third-
degree  assault  (again, one count for  each  of  seven
victims).4  West was convicted of these crimes, but (as
we  have explained) West raised a Blakely issue  and  a
double  jeopardy issue while he was awaiting sentencing
and, thus, he has not yet been sentenced.
          For the offense of first-degree robbery, West
faces  a presumptive sentencing range of 7 to 11  years
imprisonment if he personally carried a firearm  during
the   robberies.    See   AS  12.55.125(c)(2)(A).    In
contrast, West faces a lesser presumptive range  5 to 8
years  imprisonment  if he did not personally  carry  a
firearm during the robberies.  See AS 12.55.125(c)(1).5
          (See  Dailey  v. State, 675 P.2d 657,  661-62
(Alaska  App. 1984), where this Court held  that,  even
though  a  defendant can be convicted of armed  robbery
based on an accomplices use or possession of a firearm,
the  enhanced  presumptive term provided in  subsection
(c)(2)(A) applies to the defendants sentencing only  if
the   defendant   personally  used  or  possessed   the
firearm.)
          The  problem  in Wests case arises  from  the
fact  that  Wests  trial jury was not asked  to  decide
whether  West personally carried a firearm.  The  jurys
verdicts simply state that the jurors found West guilty
of first-degree robbery.
          The  jury was instructed, in pertinent  part,
that  one element of first-degree robbery was  that  in
the  course  of  [the] taking or attempted  taking  [of
property],  or  [in  the] immediate  flight  after  the
taking  [or] attempted taking, the defendant or another
participant was armed with a deadly weapon.  Thus,  the
jurys verdicts represent a finding that, among West and
his  cohorts, at least one of them carried  a  firearm,
but  the  verdicts do not identify which of the robbers
were armed.
          In   her  pre-sentencing  memorandum,   Wests
attorney  took  the  position  that  West  had  to   be
sentenced using the lower presumptive range (i.e., 5 to
8  years).   The  defense attorney argued  that,  under
Blakely  v.  Washington, 542 U.S. 296, 124 S.Ct.  2531,
159  L.Ed.2d 403 (2004), West was entitled  to  have  a
          jury decide the factual issue of whether West
personally carried a firearm during the robberies.  The
defense attorney further argued that, because the  jury
had  not  been asked to decide this issue of fact,  the
superior court was required to sentence West as if  the
jury had decided this issue in Wests favor.
          The  State responded by arguing that West was
subject to the higher sentencing range (i.e., 7  to  11
years)  because Blakely was satisfied, even  without  a
specific jury verdict on this factual issue.  The State
pointed  out that the evidence at trial clearly  showed
that  West  had  carried  a  firearm,  and  that  Wests
attorney  (in  arguing  the  case  to  the  jury)   had
essentially conceded this fact.
          The  trial  judge, Superior Court Patrick  J.
McKay,  agreed  with the defense position  that,  under
Blakely,  West was entitled to have a jury decide  this
issue  of fact.   At the same time, Judge McKay  agreed
with  the  States  assertion that  Wests  attorney  had
essentially  conceded  this factual  issue  during  the
trial,  and that, in any event, the evidence  presented
at the trial established beyond a reasonable doubt that
West  had carried a firearm.  Nevertheless, Judge McKay
concluded  that if West now wanted a jury  decision  on
this issue, there was still time to give him one (since
final judgement had not yet been entered).
          Rejecting  Wests contention that any  renewed
litigation  of  this  issue would  violate  the  double
jeopardy clause, Judge McKay decided to call a new jury
to  decide  the  question  of whether  West  personally
carried a firearm during the robberies.
          West  petitioned  this Court  to  review  the
judges ruling.  We granted review and ordered briefing.

Why  we  agree  with the superior court  that  West  is
entitled  to  a jury trial on the issue of  whether  he
carried a firearm during the robbery

          Under   the   pre-2005  version  of   Alaskas
presumptive   sentencing  law,  a   felony   defendants
applicable  presumptive  term normally  hinged  on  the
number of the defendants prior felony convictions.  See
former  AS 12.55.125(c), (d), (e), and (i).  There  was
one  exception to this rule:  former AS 12.55.125(c)(2)
specified  an  enhanced presumptive term  for  a  first
felony  offender convicted of a class A felony  if  the
defendant  carried a firearm during the  commission  of
the  offense, or caused serious physical  injury  to  a
person,  or knowingly directed their conduct against  a
police  officer, fire fighter, corrections officer,  or
emergency responder.
          Once  the  defendants  presumptive  term  was
ascertained,  a sentencing judge had the  authority  to
depart   from  that  presumptive  term  based  on   the
aggravating   and   mitigating   factors   listed    in
AS 12.55.155(c) and (d).
          In   that   pre-2005  law,  the   legislature
specified that the sentencing judge would determine the
number  of the defendants prior felony convictions  and
would   also   determine  aggravating   factors.    The
legislature  further specified that, when these  issues
were disputed, the applicable burden of proof for prior
felony convictions was beyond a reasonable doubt, while
the  burden of proof for aggravating factors was  clear
and  convincing  evidence.  See former AS  12.55.145(d)
and AS 12.55.155(f), respectively.
          However,  the legislature failed  to  specify
the  burden  of  proof  that applied  to  the  sentence
enhancement  factors  listed in AS 12.55.125(c)(2)  for
first  felony offenders convicted of a class A  felony.
In  Huf v. State, 675 P.2d 268 (Alaska App. 1984), this
Court  was  asked to clarify this aspect of presumptive
sentencing law.  We concluded that, because the factors
listed  in 125(c)(2) performed the same function  as  a
defendants  prior felony convictions (that is,  because
the presence or absence of these factors determined the
applicable  presumptive  term of  imprisonment),  these
factors should be governed by the same burden of  proof
that applied to prior felony convictions:  proof beyond
a  reasonable  doubt.  Huf, 675 P.2d at 273-74.   Seven
years  ago,  the  State  asked us  to  re-examine  this
question, and we re-affirmed our decision in Huf.   See
Tuttle v. State, 65 P.3d 884, 891 (Alaska App. 2002).
          We  decided  one further issue in  Huf.   The
defendant in Huf argued that the factors listed  in  AS
12.55.125(c)(2) were actually elements of his  offense,
and thus he was entitled to litigate these factors to a
jury  (rather  than  to  the  sentencing  judge).    We
rejected    this    contention.     We    held     that
AS   12.55.125(c)(2)  was  not  an  addendum   to   the
definition  of all class A felonies, but was  rather  a
true  sentencing  provision  and,  thus,  a  sentencing
judge  could  resolve disputes concerning the  sentence
enhancement  factors listed in AS 12.55.125(c)(2)  just
as  the  judge  could resolve disputes  concerning  the
defendants prior felony convictions.  Huf, 675 P.2d  at
271-73.
          See  also Burks v. State, 706 P.2d 1190, 1192
(Alaska App. 1985), where we stated that these sentence
enhancement  factors  operate  independently   of   the
elements of the underlying offense.
          In March 2005, the Alaska Legislature amended
the  presumptive sentencing law in an attempt to comply
with  the Sixth Amendment right to jury trial announced
by  the  United  States Supreme  Court  in  Blakely  v.
Washington,  542 U.S. 296, 124 S.Ct. 2531, 159  L.Ed.2d
403 (2004).  For purposes of litigating the aggravating
factors  listed  in  AS 12.55.155(c),  the  legislature
divided these factors into two groups, depending on the
legislatures assessment of whether the Blakely right to
jury trial applied to a particular aggravating factor.
          Under the current version of AS 12.55.155(f),
some   aggravating  factors   the   ones   covered   by
subsection  (f)(2)  must be litigated  to  a  jury  and
proved   beyond  a  reasonable  doubt.   The  remaining
aggravating  factors   the ones  listed  in  subsection
(f)(1)   are still governed by the old rule:  they  are
litigated  to the sentencing judge, and the  burden  of
proof remains clear and convincing evidence.
          Again,  however,  the legislature  failed  to
specify  the  identity  of the fact-finder  (sentencing
judge  or  jury) who would resolve disputes  concerning
the   sentence   enhancement  factors  listed   in   AS
12.55.125(c)(2), and the legislature likewise failed to
specify  the  burden of proof that  would  govern  that
litigation.
          This   second   omission  (the   legislatures
failure  to specify a burden of proof) is not critical,
because our decision in Huf requires the same burden of
proof that Blakely requires:  proof beyond a reasonable
doubt.   But  the  legislatures  first  omission    its
failure to specify the identity of the fact-finder   is
much more important.
          As  we  have  already explained,  in  Huf  we
rejected  the contention that defendants were  entitled
to  a  jury  trial on the sentence enhancement  factors
listed in AS 12.55.125(c)(2).  This aspect of Huf needs
to be re-examined in light of Blakely.
          Both  parties to this appeal agree that Judge
McKay reached the correct resolution of this issue when
the  judge  concluded  that,  under  Blakely,  West  is
entitled  to  a jury trial on the issue of  whether  he
carried  a firearm during the robbery.  We, too,  agree
that  the  Blakely right to jury trial applies  to  the
factors listed in AS 12.55.125(c)(2).
          This is not because we view these factors  as
elements of class A felonies. We stand by what we  said
in  Huf  and  Burks:  these factors are true sentencing
factors.   But as we explained in State v.  Dague,  143
P.3d  988 (Alaska App. 2006), the Blakely right to jury
trial  regarding a particular issue of  fact  does  not
hinge on whether that issue of fact is classified as an
element  or  a  sentencing  factor  under  state   law.
Rather, a defendants right to jury trial hinges on  the
consequences  of resolving that issue of  fact  in  the
governments   favor.   143  P.3d   at   999-1000.    If
resolution  of  the  issue of fact in  the  governments
favor  means  that the defendant will  face  a  greater
maximum  sentence,  or  a higher  presumptive  term  or
presumptive range of imprisonment, then, under Blakely,
the  defendant has a right to jury trial on that issue.
Id. at 1002.
          If the sentence enhancement factors listed in
AS  12.55.125(c)(2)  are resolved  in  the  governments
favor, a defendant is subjected to a higher presumptive
range   of   imprisonment  than  the  defendant   would
otherwise face as a first felony offender convicted  of
a  class  A felony.  Accordingly, the Blakely right  to
jury trial applies to these factors.

Why  we  conclude that it does not violate  the  double
jeopardy  clause to convene a new jury  to  decide  the
question  of whether West carried a firearm during  the
robbery

          As  we  explained above, Alaskas  presumptive
sentencing  statutes  specify the  procedures  and  the
applicable   standards  of  proof  for   litigating   a
defendants  prior felony convictions and for litigating
the  aggravating  and  mitigating  factors  listed   in
AS 12.55.155(c) and (d), but the presumptive sentencing
statutes do not specify a procedure for litigating  the
sentence  enhancement  factors  listed  in  AS   12.55.
125(c)(2), nor do they specify a standard of  proof  to
govern that litigation.
          Up  until now, the law on these subjects  was
contained  in this Courts decisions in Huf and  Tuttle.
Under  Huf and Tuttle, the sentence enhancement factors
were  to  be decided by the sentencing judge,  and  the
applicable  burden  of proof was  beyond  a  reasonable
doubt.
          In  the superior court, West challenged  this
law;  he asserted that the Blakely right of jury  trial
applied  to the sentence enhancement factors listed  in
AS  12.55.125(c)(2)  and that, therefore,  the  factual
issue of whether he personally carried a firearm during
the  commission of the robbery had to be decided  by  a
jury   rather  than  by  the  superior  court  at   the
sentencing hearing.  Judge McKay agreed with  West  and
ordered  a  jury  trial on the disputed  factual  issue
leading  to  this  appellate litigation,  because  West
takes  the  position  that any  new  proceedings  would
subject  him to a second jeopardy in violation  of  the
double jeopardy clause.
          West  analogizes his situation to a  case  in
which  the State neglects to seek a jury verdict  on  a
necessary  element of the defendants  crime,  and  then
asks   for  a  second  trial  to  rectify  this  error.
According   to   West,  any  second  trial   in   these
circumstances will violate the double jeopardy  clause.
This argument is mistaken for two reasons.
          The  first  flaw in Wests argument  is  that,
even  if  we were ready to overturn existing  precedent
our  decisions  in Huf and Burks  and hold  that  Wests
personal  possession  of  a firearm  was  an  essential
element  of  his  offense, the double  jeopardy  clause
would not bar the State from trying West a second  time
to  rectify  the  fact that Wests trial  jury  was  not
instructed on this additional element of the offense.
          In  Steve v. State, 875 P.2d 110 (Alaska App.
1994),  we  explained the general rule that applies  to
situations   where  a  defendant  attacks  a   criminal
conviction  on the ground that the trial jury  was  not
asked  to  decide  all the necessary  elements  of  the
offense:
     
     [I]f  the  defendant convinces  an  appellate
     court   that  the  trial  court  adopted   an
     erroneous   definition  of  the  offense   or
     misallocated  the  burden  of   proof,   this
     conclusion    necessarily   undermines    the
     assumption that the government had  its  fair
     day  in court.  We can not know what evidence
     the   State  might  have  presented  at  [the
     defendants] trial if it had known  [the  true
     elements  of  the offense or had known  that]
     the  State  bore the burden of proof  on  the
     [disputed] issue[.]
     
     Steve,  875  P.2d  at  115.   Thus,  if   the
     defendant  prevails  on such  a  motion,  the
     defendant is entitled to a new trial, not  an
     outright acquittal.  Id.
          We  applied  this rule in  Hurd  v.
State,  22  P.3d 12 (Alaska App. 2001).   The
defendant in Hurd was convicted of kidnapping
and  coercion.  He argued on appeal that  the
jury  had  not been instructed on a necessary
element of kidnapping:  the requirement  that
the  restraint that formed the basis  of  the
kidnapping charge had to be distinct from the
restraint   that   was  incidental   to   the
accompanying  charge of coercion.   Hurd,  22
P.3d  at 19-20.  We agreed that the jury  had
not  been properly instructed on the type  of
restraint  required  to  support  a  separate
kidnapping   conviction,  and  we   therefore
reversed Hurds kidnapping conviction  but  we
ruled that [t]he State [could] try Hurd again
for this crime.  Id. at 20.
          We   also  applied  this  rule   in
Collins  v. State, 977 P.2d 741 (Alaska  App.
1999).    The   defendant  in   Collins   was
convicted     of    second-degree     weapons
misconduct,    AS    11.61.195(a)(1),     for
possessing a firearm during the commission of
a   felony   drug  offense.   The  jury   was
instructed  that Collins could  be  convicted
based simply on the fact that he possessed  a
firearm  (hidden under his mattress)  at  the
same  time  that he committed a  felony  drug
offense.6  We held that this offense required
proof of an additional essential element:  an
articulable  nexus  between  the   defendants
possession  of the firearm and the defendants
          commission of the felony drug offense.7
Nevertheless,  we held that Collins  was  not
entitled to an acquittal, but rather to a new
trial  at which the State would be given  the
opportunity  to  prove  the  required  nexus.
Collins, 977 P.2d at 752.
          In  other  words, if  the  flaw  in
Wests   case   had   been   that   the   jury
instructions   omitted   or   misdefined   an
essential  element of the offense  of  first-
degree robbery, West would not be entitled to
claim  an acquittal under the double jeopardy
clause.   Rather, he would be entitled  to  a
new trial.
          This    same   rule   applies    to
situations where the elements of the  offense
are  properly  defined, but the  trial  judge
erroneously removes one of the elements  from
the  jurys  consideration  and  decides  this
element him- or herself.  In United States v.
Gaudin,  515  U.S. 506, 115 S.Ct.  2310,  132
L.Ed.2d 444 (1995), the defendant was accused
of  violating 18 U.S.C.  1001 by making false
statements on Department of Housing and Urban
Development  loan  documents.   This  federal
statute  required proof that  the  defendants
false   statements  were  material   to   the
activities  or decisions of the  Department.8
The trial judge mistakenly concluded that the
question of materiality was to be decided  by
the court rather than by the jury.  The trial
judge then instructed the jurors,

     The  issue  of materiality  ...  is  not
submitted  to  you for your  decision[,]  but
rather  is a matter for the decision  of  the
court.    You   are   instructed   that   the
statements  charged  in  the  indictment  are
material statements.

 Gaudin, 515 U.S. at 508, 115 S.Ct. at 2313.
          Even  though Gaudins trial attorney
did  not  object to this jury instruction,  a
panel  of  the  Ninth Circuit concluded  that
this instruction was plain error  because the
court  concluded that, under its  precedents,
the element of materiality was clearly a jury
issue.9  The Ninth Circuit, sitting en  banc,
affirmed   the   panels   decision.10     The
government  then successfully petitioned  the
Supreme  Court  to  hear the  case,  but  the
Supreme  Court  affirmed the  Ninth  Circuits
conclusion  that  a  defendant  charged  with
violating  18 U.S.C.  1001 had the  right  to
trial  by jury on the element of materiality.
          Gaudin, 515 U.S. at 522-23, 115 S.Ct. at
2320.
          For     present    purposes,    the
significant  aspect  of  Gaudin  is  not  its
holding  that federal defendants are entitled
to  a  jury determination on whether a  false
statement    is   material.    Rather,    the
significant  aspect of Gaudin is  the  remedy
that  the  defendant received for  the  trial
judges error of removing this element of  the
offense from the jurys consideration.  Gaudin
did  not  receive an acquittal, but rather  a
new  trial.  See United States v. Gaudin, 997
F.2d  1267, 1273 (9th Cir. 1993) (the  three-
judge  panel  decision),  United  States   v.
Gaudin, 28 F.3d 943, 952 (9th Cir. 1994) (the
en banc decision).
          The  second flaw in Wests  argument
is  that, under Alaska law, it is clear  that
the  issue of whether West personally carried
a   firearm  during  the  commission  of  the
robbery is not an element of the first-degree
robbery charge.
          Under the pertinent portion of  the
first-degree  robbery  statute,   AS   11.41.
500(a)(1),  the State was required  to  prove
only  that  West or any other participant  in
the  robbery was armed with a deadly  weapon.
This  finding  was  sufficient  to  establish
Wests guilt of the crime.
          True, the question of whether  West
will  face  the  higher or lower  presumptive
sentencing  range for this  crime  hinges  on
whether  West  personally carried  a  firearm
during  the  robbery.  But as we declared  in
Huf   and  Burks,  the  sentence  enhancement
factors listed in AS 12.55.125(c)(2) are  not
elements  of  all  the  underlying  class   A
felonies to which the statute applies.
          This   fact   that  the  sentencing
enhancement  factors  listed  in  AS   12.55.
125(c)(2)  are not elements of Wests  offense
distinguishes  Wests case from the  decisions
in  Steve,  Hurd, Collins,  and  Gaudin.   In
those cases, the underlying problem was that,
because  of errors in the definition  of  the
offense  or  errors  in procedure,  the  jury
failed to render a verdict on every necessary
element  of the offense.  Here, the situation
is different.  A properly instructed jury has
found  West  guilty of first-degree  robbery,
and  the question is whether he will  face  a
presumptive sentencing range of 5 to 8  years
imprisonment or 7 to 11 years imprisonment.
          Under  Alaskas pre-existing law  on
this  point  that is, under our decisions  in
Huf  and  Tuttle  the issue of  whether  West
personally  carried  a  firearm  during   the
robbery  was an issue to be resolved  by  the
sentencing  judge.  Wests attorney  believed,
based  on  the  United States Supreme  Courts
decision  in Blakely, that West was  entitled
to  a  jury trial on this factual issue,  and
that  it  was  now unconstitutional  for  the
sentencing  judge  to  resolve  this  factual
issue.   As  we  explained  earlier  in  this
opinion, we agree that this view of  the  law
is correct.  But Wests attorney did not raise
this  issue until after Wests trial was over,
when the parties were awaiting sentencing.
          If West had not raised this Blakely
issue until after he was sentenced  that  is,
if  West had raised this jury trial claim for
the first time on appeal, as a claim of plain
error  we would not have ordered the superior
court  to  resolve  the  disputed  sentencing
factor in Wests favor.  Rather, we would have
remanded Wests case to the superior court for
a  jury  trial  on  the  disputed  sentencing
factor  (unless we concluded that, given  the
trial   evidence,  it  was  clear   that   no
reasonable jury could resolve this  issue  of
fact in Wests favor).11
          Similarly,  if West had raised  his
jury  trial claim before or during his trial,
and  if the trial judge (relying on Huf)  had
refused to allow the trial jury to decide the
question of whether West personally carried a
firearm  during the robbery,  we  would  have
reversed  and directed the superior court  to
grant  West  a jury trial on this  sentencing
factor   but  we would not have  ordered  the
superior   court  to  resolve  the   disputed
sentencing factor in Wests favor.
          Wests   procedural   situation   is
different from either of these examples.   He
raised  his jury trial claim after his  trial
was   over,   but   before  his   sentencing.
Nevertheless, we perceive no significance  in
this procedural distinction.
          West  has argued convincingly  that
he  is  entitled to a jury trial on the issue
of  whether he personally possessed a firearm
during the robbery  and that Alaskas existing
procedure  for litigating this  issue  (i.e.,
the procedure we adopted in Huf and Tuttle of
having  the  issue resolved by the sentencing
judge)  is  unconstitutional  under  Blakely.
The  remedy for this error is to have a  jury
decide the disputed sentencing factor.  Judge
          McKay therefore acted properly when he
ordered this remedy.
          The  decision of the superior court
is AFFIRMED.

_______________________________
  1 AS 11.41.500(b).

  2 Compare AS 12.55.125(c)(1) and AS 12.55.125(c)(2)(A).

  3 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

4 AS 11.41.500(a)(1) and AS 11.41.220(a)(1), respectively.

5 Here are the pertinent portions of AS 12.55.125(c):

[A] defendant convicted of a class A felony may be sentenced
to  a  definite  term of imprisonment of not  more  than  20
years, and shall be sentenced to a definite term within  the
following  presumptive  ranges,  subject  to  adjustment  as
provided in AS 12.55.155  12.55.175:

  (1)  if the offense is a first felony conviction and  does
not   involve  circumstances  described  in  (2)   of   this
subsection, five to eight years;

  (2)  if  the offense is a first felony conviction ...  and
the   defendant  possessed  a  firearm,  used  a   dangerous
instrument,  or  caused  serious physical  injury  or  death
during  the commission of the offense, or knowingly directed
the  conduct  constituting the offense  at  a  uniformed  or
otherwise  clearly identified peace officer,  fire  fighter,
correctional   employee,   emergency   medical   technician,
paramedic, ambulance attendant, or other emergency responder
who was engaged in the performance of official duties at the
time of the offense, seven to 11 years[.]

6Collins, 977 P.2d at 751 (Mannheimer, J.,concurring).

7Id. at 753 (Mannheimer, J., concurring).

8Id., 515 U.S. at 508, 115 S.Ct. at 2313.

9See United States v. Gaudin, 997 F.2d 1267, 1271-73 (9th
Cir. 1993).

10  See United States v. Gaudin, 28 F.3d 943, 944 (9th Cir.
1994) (en banc).

11  See Washington v. Recuenco, 548 U.S. 212, 219-222; 126
S.Ct. 2546, 2551-
53; 165 L.Ed.2d 466 (2006), and Lockuk v. State, 153 P.3d 1012,
1016-17  (Alaska  App. 2007), both holding  that  if  a
Blakely  error  is  harmless beyond a reasonable  doubt
that  is, if there is no reasonable possibility that  a
jury  would have found in the defendants favor  if  the
issue had been submitted to a jury  then the error does
not  require  alteration or vacation of the  defendants
sentence.

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