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Twogood v. State (2/5/2010) ap-2254

Twogood v. State (2/5/2010) ap-2254

                             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


JOSHUA S. TWOGOOD,                 
                                   
                    Appellant,       Court of Appeals No. A-10426
                                    Trial Court No. 4FA-99-1370 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                       No. 2254    February 5, 2010
                                   
          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Randy  M.  Olsen,
          Judge.

          Appearances:  Jason A. Gazewood,  Gazewood  &
          Weiner,   Fairbanks,   for   the   Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and Daniel S.  Sullivan,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          This  appeal is a sequel to our decision in Twogood  v.
State,  196  P.3d  1109 
(Alaska App. 2008). In that earlier decision, we resolved a dispute concerning the date on which Twogood became eligible to apply for discretionary parole, and we directed the superior court to amend Twogoods written judgement to reflect our ruling. In the current appeal, Twogood raises various challenges to the proceedings that occurred in the superior court following our earlier decision.
Underlying      facts:       the
     indictment, the plea bargain, and the first appeal
     
               In  1999,  Joshua S. Twogood was indicted  on
     eight different felony counts:  two counts of attempted
     murder  (Counts I and II), five counts of  first-degree
     sexual assault (Counts III through VII), and one  count
     of   kidnapping  (Count  VIII).   These  charges   were
     resolved when Twogood reached a plea agreement with the
     State.  Under the terms of this plea agreement, Twogood
     would  plead  no contest to Count I (attempted  murder)
     and  Count III (first-degree sexual assault),  and  the
     State would dismiss the other charges.  Twogood and the
     State  agreed  that Twogood would receive  a  composite
     sentence  of  20  years to serve, with  the  sentencing
     judge   having  the  discretion  to  impose  additional
     suspended jail time.
               One  of Twogoods sentences  his sentence  for
     first-degree  sexual assault  was governed  by  Alaskas
     presumptive   sentencing  law.   As  a   first   felony
     offender, Twogood faced an 8-year presumptive  term  of
     imprisonment  for  this offense.1   (Twogood  faced  an
     indeterminate  sentence  of  5  to  99  years  for  the
     attempted murder.2)
               In  connection  with Twogoods sentencing  for
     the   sexual   assault,  the  State  proposed   several
     aggravating  factors  under  AS  12.55.155(c):   (c)(1)
     that his victim sustained physical injury; (c)(2)  that
     Twogood   manifested  deliberate  cruelty  during   the
     offense; (c)(18)(A)  that Twogood committed the offense
     against  a  member of his household (his  spouse);  and
     (c)(18)(B)   that Twogood had engaged in  prior  sexual
     assaults against the same victim.
          Twogood  opposed  most of  these  aggravating
factors,  but he conceded aggravator (c)(18)(A)  (i.e.,
that the offense was committed against a member of  his
household).  Under Alaskas presumptive sentencing  law,
even  if  the State failed to prove the other  proposed
aggravating  factors, Twogoods concession of  this  one
aggravating  factor authorized the  superior  court  to
exceed the 8-year presumptive term of imprisonment  for
the  sexual assault.3  The superior court did, however,
find  that  the  State had proved  its  other  proposed
aggravators.
          In  August 2000, pursuant to the plea bargain
(and   pursuant  to  its  rulings  on  the  aggravating
factors), the superior court entered judgement  against
Twogood  for  attempted murder and first-degree  sexual
assault.  For the attempted murder, the superior  court
sentenced Twogood to 20 years imprisonment with 5 years
suspended (15 years to serve).  For the sexual assault,
the  court  sentenced Twogood to 14 years  imprisonment
with 4 years suspended (10 years to serve).
          To  comply  with  the parties agreement  that
Twogood would receive a composite sentence of 20  years
to  serve, the sentencing judge declared that these two
sentences   would  be  partially  consecutive,   giving
Twogood  a  total  of  20  years  in  prison  (with  an
additional 9 years suspended).
          After the judge announced this sentence, both
the prosecutor and the defense attorney asked the judge
to  specify the order of Twogoods sentences   i.e.,  to
specify  whether Twogoods composite 20 years in  prison
was to consist of a 10-year sentence for sexual assault
followed by a consecutive 10 years for attempted murder
or,  conversely, whether Twogood was to serve 15  years
for  attempted murder followed by a consecutive 5 years
for  sexual  assault.   But even  though  both  parties
sought this clarification, the sentencing judge refused
to  specify  the  precise way  in  which  Twogoods  two
sentences added up to the composite 20 years to  serve.
The  judge  concluded (erroneously) that this  kind  of
specificity  was  not  required  because  it  made   no
difference  to  Twogoods total penalty or  to  Twogoods
          parole eligibility.
          Twogood  filed  an  appeal  of  the  superior
courts  sentencing  decision.  See  Twogood  v.  State,
Alaska  App.  Memorandum Opinion  No.  4600  (July  24,
2002), 2002 WL 1627474  hereafter, Twogood I.  In  that
appeal,  Twogood  attacked most of the superior  courts
rulings  on the aggravating factors.  However,  he  did
not challenge the superior courts finding of aggravator
(c)(1)  (that  the  victim suffered  physical  injury).
Moreover, as we previously explained, Twogood  conceded
aggravator (c)(18)(A) during the sentencing proceedings
in the superior court.  We affirmed the superior courts
judgement.

Underlying facts:  Twogoods second appeal, in which  he
sought  clarification of the order in which he  was  to
serve his two sentences

          Another  issue  that  went  unchallenged   in
Twogoods initial appeal was the superior courts refusal
to   specify  the  order  of  Twogoods  two  sentences.
Several  years  later, however, Twogood perceived  that
the  order  of  his sentences might affect  his  parole
eligibility  date,  so he asked the superior  court  to
issue an order clarifying this matter.
          By  that  time, Twogoods original  sentencing
judge  had retired, so the case was assigned to another
judge,  Superior  Court Judge Randy  M.  Olsen.   Judge
Olsen  declined to further clarify Twogoods  sentences;
he  concluded  that the calculation of Twogoods  parole
eligibility date was a matter entrusted solely  to  the
Department  of Corrections.  Twogood then appealed  the
superior courts refusal to take action.
          In  Twogood  v. State, 196 P.3d 1109  (Alaska
App.  2008)   hereafter, Twogood II  we concluded  that
Twogoods parole eligibility date did, indeed, hinge  on
which  of his two sentences was the initial or  primary
sentence (i.e., the sentence to be served in full)  and
which  one was the partially concurrent sentence.   196
P.3d  at  1114.   We then ruled that, because  Twogoods
original  sentencing judge had refused to clarify  this
issue  when the sentences were imposed, we were obliged
to  construe the ambiguity in Twogoods favor  i.e.,  to
interpret  the superior courts judgement in the  manner
that  gave Twogood the earlier parole eligibility date.
Id.   This meant treating Twogoods 10-year sentence for
sexual assault as his primary sentence, followed  by  a
partially concurrent sentence of 15 years for attempted
murder.  Id. at 1115.
          We  then directed the superior court to amend
Twogoods  written  judgement so that it  reflected  our
construction of Twogoods sentences.  Id.

Underlying  facts:   the proceedings  in  the  superior
court following our decision

          Our  decision  in Twogood II  was  issued  on
November 21, 2008.  Under Alaska Appellate Rule 303(a),
the State had fifteen days to ask the supreme court  to
review  our  decision, but the State  did  not  do  so.
Thus,  pursuant  to Alaska Appellate Rules  507(b)  and
512(a)(2)[a],  our  decision  took  effect  on  Monday,
December  8,  2008.  Six weeks later,  on  January  23,
2009, Judge Olsen signed an amended judgement which, in
effect,  declared that Twogoods sexual assault sentence
was  his  primary sentence, and that Twogoods attempted
murder  sentence  was  partially concurrent  with  (and
partially consecutive to) the sexual assault sentence.
          After  Judge  Olsen distributed this  amended
judgement  to the parties, Twogood filed a  Motion  for
Reconsideration  of [the] Amended  Judgment.   In  this
motion, Twogood challenged the amended judgement on two
grounds.
          Twogood argued that, before Judge Olsen could
properly  issue  an amended judgement,  the  judge  was
obliged  to  hold  a new sentencing hearing   and  that
Twogood  was  entitled  to personally  appear  at  that
hearing.
          Twogood also challenged one of his conditions
of  probation, Special Condition No. 9.  This probation
condition  specified  that  Twogood  was  required   to
[s]ubmit to a warrantless, non-consensual search  by  a
law  enforcement  officer  of  [his]  person,  personal
property, residence[,] or any vehicle [in which  he  is
present]    for    prohibited    weapons,    controlled
substances[,] and drug paraphernalia.
          Twogood  conceded  that a  probation  officer
could  lawfully require him to submit to the  types  of
searches  described in Special Condition  No.  9.   But
Twogood  argued  that  Special  Condition  No.  9   was
unconstitutional  to the extent that it  allowed  these
searches  to  be  initiated by  [any]  law  enforcement
officer.
          Judge   Olsen  denied  Twogoods  motion   for
reconsideration.   He  explained  that  [t]he   amended
judgment was generated [simply] to conform to the Court
of  Appeals  decision  and that, apart from  clarifying
the  relationship  between Twogoods  two  sentences  of
imprisonment,  [t]here were no  other  changes  to  the
original judgment.

Twogoods argument that Judge Olsen was required to hold
a  new  sentencing  hearing, and to afford  Twogood  an
opportunity for allocution, before issuing the  amended
judgement

          Twogood  argues that when Judge Olsen  issued
the  amended judgement, the judge essentially sentenced
Twogood  in  Twogoods  absence  thus  violating  Alaska
Criminal  Rule  38(a).   (This rule  specifies  that  a
defendants  presence is required at the  imposition  of
sentence.)
          Twogood  further argues that he was  entitled
to  allocution  that is, entitled to personally address
Judge  Olsen concerning the sentence  before the  judge
issued the amended judgement.
          We  reject both of these contentions.   Judge
Olsens  issuance  of the amended judgement  was  not  a
sentencing   because  Judge  Olsen  made  no   decision
concerning  Twogoods sentence.  As the judge  explained
when he denied Twogoods motion for reconsideration, his
task in this case was purely ministerial.
          This Court directed Judge Olsen to amend  the
written judgement so that it reflected our decision  in
Twogood II  our decision concerning the order in  which
Twogood was to serve his two sentences of imprisonment.
Judge  Olsen did this by adding the following  language
to  the  description of Twogoods sentence for attempted
murder:  10 years [of this sentence are] consecutive to
and  5 years concurrent with [the sentence imposed  on]
Count  III [i.e., the sentence for first-degree  sexual
assault].
          In  performing this task, Judge Olsen had  no
discretion  to deviate from our mandate in Twogood  II.
He  was  simply  doing  what we  directed   making  the
written judgement conform to the interpretation of  the
original sentencing decision that we adopted in Twogood
II.  Because Judge Olsen was not performing a task that
entailed the exercise of sentencing discretion, Twogood
had  no right of allocution and no right to be present.
Thus,  Judge  Olsen  could properly issue  the  amended
judgement without holding a new sentencing hearing.

Twogoods argument that Special Probation Condition  No.
9 was imposed unlawfully

          As  we  explained earlier, one  provision  of
Twogoods judgement  Special Probation Condition  No.  9
requires  Twogood  to [s]ubmit to a  warrantless,  non-
consensual search by a law enforcement officer of [his]
person,  personal property, residence[,] or any vehicle
[in  which  he  is  present]  for  prohibited  weapons,
controlled substances[,] and drug paraphernalia.
           This  condition  of probation  was  part  of
Twogoods original judgement  i.e., it was part  of  the
judgement issued by Twogoods original sentencing  judge
in  August  2000.   Judge  Olsen  merely  carried  this
provision  over  (along  with  all  of  Twogoods  other
conditions  of  probation) when he issued  the  amended
judgement in January 2009.
          In   the  Motion  for  Reconsideration   that
Twogood  filed  in the superior court,  Twogood  argued
that    this    condition   of   his   probation    was
unconstitutional under Alaska law because it authorized
[any]  law  enforcement  officer   not  just  probation
officers    to   initiate  the  described   warrantless
searches.
          Twogoods argument was correct:  under  Alaska
law,  a  probationer  can  be  ordered  to  submit   to
warrantless  searches by, or at  the  direction  of,  a
probation  officer,  but  a  sentencing  court  has  no
authority   to  order  a  probationer  to   submit   to
warrantless  searches  by any law enforcement  officer.
See  Roman v. State, 570 P.2d 1235, 1242 n. 20  (Alaska
1977);  Marunich  v. State, 151 P.3d 510,  516  (Alaska
App. 2006).
          When  Judge Olsen denied Twogoods motion  for
reconsideration,  he  did not  address  the  merits  of
Twogoods  argument  about  the  special  condition   of
probation.  Rather, Judge Olsen merely noted  that  his
amendment of Twogoods judgement was simply to  make  it
conform to our decision, and that in all other respects
the  provisions  of  the  original  judgement  remained
unchanged.  We interpret Judge Olsen to be saying that,
given  the procedural posture of the case, Twogood  was
not entitled to raise new challenges to these unchanged
provisions of the judgement.
          Neither  Twogoods attorney  nor  Judge  Olsen
appears to have considered the possibility that Twogood
could  achieve the same purpose by filing a  motion  to
modify  the  conditions  of  his  probation  under   AS
12.55.090(b).  However, we need not pursue  this  point
further,  because Twogood has chosen not to renew  this
challenge to his condition of probation in the  present
appeal.  Instead, Twogood raises a different argument.
          In  his  brief to this Court, Twogood  argues
that  there  never  was  a valid ground  for  including
Special  Condition No. 9 among Twogoods  conditions  of
probation.   However,  Twogood  does  not   renew   his
argument  that the error lay in authorizing  [any]  law
enforcement  officer  as opposed to probation  officers
to  initiate the warrantless searches.  Rather, Twogood
argues for the first time that his sentencing judge had
no  valid  basis for concluding that Twogood should  be
subject   to   warrantless  searches  for  weapons   or
controlled substances by anyone.
          Twogood  bases his argument on the  assertion
that  there  is  no  direct  relationship  between  the
searches authorized by Special Condition No. 9 and  the
crimes  for which he was convicted  first-degree sexual
assault  and attempted murder.  See Roman, 570 P.2d  at
1243,  where  the supreme court held that a  sentencing
judge  should  not require a probationer to  submit  to
warrantless searches for drugs, weapons, or other types
of items unless there is a direct relationship [between
those] searches [and] the nature of the crime for which
the [probationer] was convicted.
          But  in State v. Thomas, 133 P.3d 684 (Alaska
App.  2005), this Court gave a broad interpretation  to
this passage from Roman.  We held that Roman authorized
conditions  of probation that address[] the causes  of,
or   the   motivations  for,  the  defendants  criminal
behavior.   Id. at 685.  Thus, in Thomas,  even  though
the  defendant had not been convicted of a drug  crime,
we  affirmed  a  probation  condition  that  authorized
warrantless searches for controlled substances  because
the  sentencing  court could reasonably have  concluded
that  [the defendant] had a problem with the  abuse  of
controlled   substances,  and  that  [the   defendants]
continued  abuse of controlled substances would  impede
his  rehabilitation  or  would  contribute  to  renewed
criminal behavior.  Id. at 686.
          The   issue  of  whether  Twogoods   original
sentencing  judge had a sufficient basis  (under  Roman
and  Thomas) for imposing Special Condition No.  9  was
not  presented to Judge Olsen during the superior court
litigation.   The issue is therefore not preserved  for
appellate review.
          Moreover,  Twogood  has not  shown  that  the
original  sentencing judge committed plain  error  when
she  included  this warrantless search provision  among
the  conditions  of  Twogoods probation.   At  Twogoods
sentencing hearing in August 2000, the sentencing judge
made   specific  findings  regarding  Twogoods  violent
tendencies  and his history of drug abuse.  Before  the
sentencing  judge  imposed  the  special  condition  of
probation  that  authorized  warrantless  searches  for
prohibited weapons and controlled substances, the judge
noted  that  Twogood had a fairly long-time amphetamine
problem.   The  judge  also  noted  that  Twogood   had
conceded,  in  his conversation with a  state  trooper,
that  he  had  an anger problem, and that  Twogood  had
committed  previous acts of violence against  the  same
victim during the course of their relationship.
          Given  the  foregoing, Twogood has failed  to
show  plain error.  That is, he has not shown that  the
record  clearly fails to support the warrantless search
provision under the rule of Roman and Thomas.
          We  therefore reject Twogoods claim that this
special condition of probation was imposed unlawfully.
          (The  State argues that Twogood is  not  even
entitled to litigate this claim.  The State points  out
that  Twogood  could have attacked  this  condition  of
probation  when  he pursued his direct  appeal  of  his
conviction.   The State contends that, because  Twogood
failed to raise this claim in his direct appeal, he  is
estopped  from  pursing this claim now.   We  need  not
resolve  this issue because, as we have just explained,
even if Twogood is entitled to litigate this claim,  he
is not entitled to relief.)

Twogoods   claim  that  Judge  Olsen  violated   Alaska
Criminal  Rule  32 by failing to sentence  him  without
unreasonable delay

          Under  Alaska  law,  a person  who  has  been
convicted  of  a criminal offense has  a  right  to  be
sentenced  within  a reasonable amount  of  time.   See
Alaska  Criminal Rule 32(a) (Sentence shall be  imposed
without  unreasonable delay.); Gonzales v.  State,  582
P.2d   630,  632  (Alaska  1978)  (holding   that   the
constitutional  right to a speedy  trial  includes  the
right to a reasonably prompt sentencing).
          Twogood claims that Judge Olsen violated  his
right to a prompt sentencing because, even though  this
Courts  decision in Twogood II took effect on  December
8,  2008,  Judge  Olsen  failed to  issue  the  amended
judgement  until  late  January  2009.   (The   amended
judgement   was  signed  on  January   23rd   and   was
distributed  to  the  parties on January  27th.)   This
claim fails for a number of reasons.
          First,  Twogood did not raise this  claim  in
the superior court.
          Second,  as we have already explained,  Judge
Olsen  did not conduct a sentencing when he issued  the
amended  judgement in Twogoods case.  The judge  simply
performed the ministerial act of conforming the written
judgement  to  the interpretation of Twogoods  sentence
that we announced in Twogood II.
          Third, Twogoods argument fails to address one
key aspect of speedy trial or speedy sentencing claims:
before  the government will be required to justify  the
delay, the defendant must first show that the amount of
delay (or more specifically, the delay that can not  be
attributed to the defendant or the defendants attorney)
surpassed  some  threshold  amount  of  time.   As   we
explained in Alvarez v. Ketchikan Gateway Borough,
The   supreme   court  has  ruled   that   an
unexplained delay of fourteen months or  more
is   presumptively  prejudicial,   [citations
omitted],  and  that, without an  affirmative
showing of prejudice, a delay of eight months
or  less  is  presumptively  non-prejudicial.
[citations  omitted]   ...   Only   after   a
defendant   has  established  either   actual
prejudice  or  a presumption of prejudice  do
Alaska  courts consider if the delay amounted
to  a  constitutional  violation.   [citation
omitted]  This is done by balancing the  four
factors  enunciated in Barker v. Wingo[,  407
U.S.  514,  92  S.Ct. 2182,  33  L.Ed.2d  101
(1972)]:   (1) the length of the  delay,  (2)
the reasons for the delay, (3) the defendants
assertion  of his or her right, and  (4)  the
prejudice to the defendant.

Alvarez,  91  P.3d 289, 294-95  (Alaska  App.
2004).
          This   same  analysis  applies   to
claims  of  undue  delay in sentencing.   The
most  pertinent discussion of this  issue  is
found  in  our decision in Stocker v.  State,
766 P.2d 48, 50 (Alaska App. 1988), where  we
explained   why  an  eight-month   delay   in
sentencing, all attributable to the  arguable
negligence  of  the  court  system,  did  not
create a presumption of prejudice.
          Twogoods brief does not address the
question  of  whether Judge  Olsens  six-week
delay in issuing the amended judgement was  a
lengthy  enough delay to raise a  presumption
of   unreasonable,  prejudicial  delay.   But
given  our decision in Stocker, it is  fairly
clear  that  this  six-week  delay  does  not
create any presumption in Twogoods favor.
          In  the  absence  of  any  presumed
prejudice,    Twogood   must    affirmatively
establish  actual  prejudice.   Twogood  does
make one specific assertion of prejudice:  he
asserts  that he was prejudiced  because,  in
addition   to  suffering  further   emotional
distress  from the continuing nature  of  his
criminal  case,  he was unable  to  ascertain
what  his exact sentence was.  This assertion
of prejudice is frivolous.
          First, in both Stocker, 766 P.2d at
50,  and  Holmes v. State, 765 P.2d 112,  113
(Alaska  App. 1988), we held that a defendant
who  claims undue delay in sentencing is  not
entitled  to  relief when the  only  asserted
prejudice  arising  from  the  delay  is  the
emotional  stress or anxiety  experienced  by
the defendant.
          Second,  Twogoods claim of  anxiety
and  uncertainty concerning the terms of  his
sentence  is  meritless  on  its  face.   Our
decision in Twogood II specified exactly what
Twogoods  sentence was.  Judge Olsen  had  no
discretion to depart from our construction of
the  sentence  when  he  issued  the  amended
judgement; rather, Judge Olsens duty  was  to
conform  the written judgement to our ruling.
Thus,  as soon as our decision in Twogood  II
became  final  (on December  8,  2008),  both
Twogood and his attorney knew precisely  what
Twogoods sentence was.
          For   these   reasons,  we   reject
Twogoods  claim that he was denied his  right
to a prompt sentencing.

Twogoods claim that he is being denied his right to
rehabilitative treatment

     Two  provisions  of Twogoods  judgement  deal
with the issue of sex offender treatment while  he
is  in  prison.   The  judgement  states:   It  is
recommended  that  [Twogood]  be  afforded  sexual
offender treatment while [he is] incarcerated, and
[i]t is ordered that [Twogood] participate in  and
successfully complete sexual offender treatment if
[it  is]  offered while [he is] incarcerated.   In
other  words,  Twogoods original sentencing  judge
recommended  that  the Department  of  Corrections
offer  sex offender treatment to Twogood while  he
was  serving  his sentence, and the judge  ordered
Twogood   to   participate  in  (and  successfully
complete) that treatment if it was offered.
          In  his  brief to this Court, Twogood  points
out that, since the time of his sentencing in 2008, the
Department of Corrections has altered its policy and no
longer  offers  sex offender treatment to  incarcerated
prisoners;   instead,   the  Department   focuses   its
rehabilitative  efforts on probationers  and  parolees.
We discussed this change in Corrections policy in State
v. Lundy, 188 P.3d 692 (Alaska App. 2008).
          Twogood   asserts  that,  even   though   the
Department of Corrections no longer offers sex offender
treatment  to  incarcerated inmates, the  Parole  Board
still    evaluates   a   prisoners   eligibility    for
discretionary  parole based, in part,  on  whether  the
prisoner  has  received and successfully completed  sex
offender treatment.
          This may or may not be true.  Twogood did not
raise  this  claim in the superior court, and  thus  we
have no finding by the superior court on this issue.
          Twogood   further  asserts   that,   if   the
Department   had  continued  to  offer   sex   offender
treatment  to incarcerated inmates, Twogood would  have
participated   in  this  treatment,   he   would   have
successfully completed the program, and thus  he  would
have  been  released on discretionary  parole  earlier.
Again,  Twogood  never  raised  these  claims  in   the
superior  court.   Moreover,  Twogoods  assertions  are
completely speculative.
          Finally, even assuming that Twogood is  being
denied his right to rehabilitative treatment, the fault
does not lie in the superior courts judgement.  Rather,
the  fault  (if  any) would lie in  the  Department  of
Corrections  decision  to cease offering  sex  offender
treatment to incarcerated inmates.  And, as we held  in
Lundy, a prisoner who wishes to challenge that decision
can  not  pursue  the  matter in their  criminal  case.
Instead, the prisoner must file a civil action  against
the Department.  188 P.3d at 696.

Twogoods claim that both his original judgement and the
amended  judgement  are illegal  because  they  do  not
comport with the terms of Twogoods plea agreement  with
the  State  or, alternatively, that Twogood is entitled
to  withdraw his pleas because the judgement  does  not
incorporate all the terms of the plea bargain

          Twogood   was  indicted  on  eight  different
felony  counts:  two counts of attempted murder (Counts
I  and  II), five counts of first-degree sexual assault
(Counts  III through VII), and one count of  kidnapping
(Count VIII).  These charges were resolved when Twogood
reached  a  plea agreement with the State.   Under  the
terms  of  this plea agreement, Twogood would plead  no
contest  to  Count I (attempted murder) and  Count  III
(first-degree  sexual assault), and the  other  charges
would be dismissed.  (Twogood and the State also agreed
that  Twogood would receive a composite sentence of  20
years to serve, with some additional time suspended.)
          The written judgement in Twogoods case (here,
we  are  actually speaking of both the original version
issued in August 2000 and the amended version issued in
January  2009) fails to conform to this plea  agreement
in  one  respect.  The judgement correctly states  that
Twogood  was  convicted  of  two  offenses:   Count   I
(attempted  murder) and Count III (first-degree  sexual
assault).  But in the section that lists the counts  of
the indictment that were dismissed, the judgement lists
only  Counts  II, IV, V, VI, and VII.  In other  words,
Twogoods judgement fails to mention the fact that Count
VIII (the kidnapping charge) was also dismissed.
          According to Twogood, this omission makes the
judgement  plainly illegal because the judgement  fails
to   conform  to  the  terms  of  the  plea  agreement.
Alternatively, Twogood argues that the superior  courts
failure to issue a judgement conforming to the terms of
the  plea agreement renders the plea agreement invalid.
We view the matter differently.
          It  is  undisputed  that the  plea  agreement
called for the dismissal of Count VIII.  This being so,
the failure of the judgement to mention this fact is  a
clerical  error.   This error can be corrected  at  any
time  under  Alaska Criminal Rule 36.4   However,  this
clerical error does not make the judgement illegal, nor
does  it  entitle  Twogood to withdraw  from  the  plea
agreement.
          We  additionally  note that,  under  Criminal
Rule  36,  if  a litigant believes that a judgement  or
order contains this kind of mistake, the litigant  must
seek relief from the court that issued the judgement or
order.   Twogood has never asked the superior court  to
rectify  this  error.   He is not entitled  to  present
this claim for the first time on appeal.

Twogoods  claim that he was sentenced in  violation  of
the  Sixth  Amendment right to jury trial announced  in
Blakely v. Washington

          In  Blakely v. Washington, 542 U.S. 296, 301;
124  S.Ct.  2531,  2536; 159 L.Ed.2d  403  (2004),  the
United  States  Supreme Court declared that  the  Sixth
Amendment   right  to  jury  trial   applied   to   the
governments proof of aggravating factors that increased
a  defendants  potential  maximum  sentence.   We  have
repeatedly acknowledged that, under Blakely, defendants
who  were subject to sentencing under Alaskas pre-March
2005 presumptive sentencing law had the right to demand
a  jury trial on the aggravating factors alleged by the
State,  and  to demand that the government prove  these
factors   beyond   a  reasonable  doubt,   unless   the
aggravating  factors  flowed directly  from  the  jurys
verdict  or  were  premised  on  the  defendants  prior
criminal convictions.5
          As  we  explained  earlier in  this  opinion,
Twogood was subject to presumptive sentencing on one of
his  offenses  (the first-degree sexual assault).   The
State  alleged several aggravating factors relating  to
this  offense,  and  in accordance with the  procedures
specified in Alaskas pre-March 2005 sentencing statutes
the  sentencing  judge ruled on these  factors  without
submitting them to a jury.  Then, in reliance on  these
aggravating  factors,  the  judge  increased   Twogoods
sentence  for  the sexual assault from the  presumptive
term  (8 years imprisonment) to an enhanced term of  14
years with 4 years suspended.
          Twogood  correctly notes that this  procedure
violated  the  right  to  jury trial  as  announced  in
Blakely.   However, the Alaska Supreme  Court  held  in
State  v. Smart, 202 P.3d 1130, 1146-47 (Alaska  2009),
that the Blakely right of jury trial is not retroactive
that  this  right  applies  only  to  defendants  whose
convictions  were not yet final in June 2004  when  the
Blakely decision was announced.
          As  we  noted  earlier,  the  superior  court
entered  judgement against Twogood in August 2000,  and
this  Court  affirmed the superior courts judgement  on
direct  appeal  in July 2002.  Twogood  petitioned  the
Alaska  Supreme Court to review our decision, but  that
petition was denied on November 8, 2002.6  Thus,  under
the   supreme   courts  decision  in   Smart,   Twogood
apparently has no Blakely claim.
          Twogood  attempts  to avoid  this  result  by
asserting  that  the superior courts  issuance  of  the
amended  judgement  in January 2009 constitutes  a  new
sentencing  event.   Based on this  assertion,  Twogood
argues  that  his  conviction was  entered  long  after
Blakely  was  decided, and he is therefore entitled  to
attack his sentence on Blakely grounds.  We reject this
argument for several reasons.
          First,  as we explained earlier, Judge Olsens
issuance  of  the  amended  judgement  was  not  a  new
sentencing.   It  was a ministerial alteration  of  the
wording of the written judgement to make it conform  to
the interpretation of Twogoods sentence that we adopted
in Twogood II.
          In  Twogood  II,  this Court  declared  that,
given  the original sentencing judges improper  refusal
to  clarify the order in which Twogood was to serve his
two  sentences of imprisonment, the law required us  to
construe this aspect of the sentence in Twogoods favor.
In  essence,  we declared that, as a legal matter,  the
sequence  of  Twogoods sentences had  always  been  the
sequence  that we announced in Twogood II.  This  means
that, as a legal matter, Judge Olsens alteration of the
wording  of the written judgement was an act  performed
nunc  pro tunc  an act done to retroactively correct  a
mistake committed earlier.7
          Judge  Olsen  did not make a  new  sentencing
decision.  In particular, he did not reconsider  either
the  proof  or the sentencing effect of the aggravating
factors  that  were litigated during Twogoods  original
sentencing.  Accordingly, we conclude that the issuance
of  the amended judgement in January 2009 was not a new
sentencing  event  that  somehow resuscitated  Twogoods
right to insist on the Blakely right to jury trial.
          Moreover,  even  if  Twogood  somehow   could
litigate a Blakely claim at this point, his claim would
fail.
          Because  Twogood never asserted  a  right  of
jury  trial  at  his  original sentencing  proceedings,
Twogoods  Blakely claim would have to be pursued  as  a
claim of plain error.
          There  is  no plain Blakely error in Twogoods
case.  As we explained earlier in this opinion (and  as
we  noted  in our decision of Twogoods direct appeal),8
Twogood conceded one of the States proposed aggravating
factors  during the original sentencing proceedings  in
the  superior  court.  In our prior Blakely  cases,  we
have  repeatedly held that a sentencing judge does  not
commit  plain  error  when  the  judge  relies  on   an
aggravating  factor  that  has  been  conceded  by  the
defendant or the defendants attorney.9
          Moreover, we held in Cleveland v. State,  143
P.3d 977 (Alaska App. 2006), that in cases governed  by
Alaskas  pre-March 2005 presumptive sentencing  law,  a
defendants  right  to  jury  trial  under  Blakely   is
satisfied  if  there is at least one  Blakely-compliant
aggravating  factor   i.e., at  least  one  aggravating
factor  that flows directly from the jurys verdict,  or
is  admitted  by  the defendant, or  is  based  on  the
defendants prior convictions.  143 P.3d at 984-85.
          Accordingly,  even though the superior  court
gave  Twogood  an  enhanced sentence  for  first-degree
sexual  assault  (i.e., a sentence  that  exceeded  the
          applicable 8-year presumptive term) without submitting
any  of  the States proposed aggravating factors  to  a
jury,  the  superior court did not commit  plain  error
under Blakely.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1 Former AS 12.55.125(i)(1)(A) (pre-March 2005 version).

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

3   Former  AS  12.55.155(a)(2)  (pre-March  2005  version);
Cleveland v. State, 143 P.3d 977, 984-85 (Alaska App.  2006)
(holding  that, in cases governed by Alaskas pre-March  2005
presumptive sentencing law, a defendants right to jury trial
under  Blakely  v. Washington is satisfied if  the  superior
court  found  at  least  one  Blakely-compliant  aggravating
factor).

4  Criminal  Rule 36 provides, in pertinent part:   Clerical
mistakes in judgments, orders or other parts of the  record,
and errors in the record arising from oversight or omission,
may  be  corrected by the court at any time and  after  such
notice, if any, as the court orders.

5  See,  e.g., Malutin v. State, 198 P.3d 1177, 1179 (Alaska
App.  2009);  Lockuk v. State, 153 P.3d 1012,  1014  (Alaska
App. 2007).

6  See  Alaska Supreme Court File No. S-10721.   Information
concerning this file (in particular, the date on  which  the
supreme court denied Twogoods petition for hearing)  can  be
found by going to:
http://www.appellate.courts.state.ak.us/frames1.asp
and then clicking on the Opening Pleadings button, located among
the buttons at the bottom of the top half of the screen.

7  See Peterson v. Swarthout, 214 P.3d 332, 336 n. 2 (Alaska
2009):

  Nunc  pro tunc is a Latin phrase that means  now  for
then.  [This phrase] is used by courts to indicate that
an order or document is being given retroactive effect.
Courts  may  appropriately use this  power  to  correct
mistakes.   For  example, if a court order  contains  a
clerical  error,  the court may issue a  revised  order
that replaces the original.  If the original order  has
already  gone  into  effect by the time  the  error  is
noticed,  the court may issue the corrected order  nunc
pro  tunc,  making it retroactive to the  date  of  the
original order.

8 Twogood I, 2002 WL 1627474 at *3.

9 See, e.g., Lockuk v. State, 153 P.3d 1012, 1016 (Alaska App.
2007);  Paige  v.  State, 115 P.3d 1244, 1248  (Alaska  App.
2005).

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