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Alexiadis v. State (7/17/2015) ap-2463

Alexiadis v. State (7/17/2015) ap-2463

                                                      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
  

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                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DIMITRIOS NICKOLAOS ALEXIADIS,  

                                                                     Court of Appeals No. A-12101  

                                     Petitioner,                   Trial Court No. 3AN-14-1088 CR  



                           v.  

                                                                                 O P I N I O N  

STATE OF ALASKA,  



                                     Respondent.                        No. 2463 - July 17, 2015  



                  Petition  for  Review  from  the  Superior  Court,  Third  Judicial  

                  District, Anchorage, Philip R. Volland, Judge.  



                  Appearances:    Josie  Garton,  Assistant  Public  Defender,  and  

                  Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.  

                  Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                  Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                  General, Juneau, for the Respondent.  



                  Before:    Mannheimer,  Chief  Judge,  and  Allard  and  Kossler,  

                  Judges.  



                  Judge KOSSLER.  



                  This petition for review presents the question of whether the trial court had       



the authority to reject a plea agreement as too lenient because the State, as part of the   



agreement, gave up the opportunity to prove aggravating factors, thereby limiting the  



court to a sentence within the applicable presumptive sentencing range.  For the reasons  

                                                                                                   


----------------------- Page 2-----------------------

explained here, we conclude that the court had no authority to reject the plea agreement  



on  this  ground,  and  that  doing  so  impermissibly  infringed  on  the  State's  charging  

                                       



discretion. We therefore reverse the superior court's decision and remand for sentencing  

                       



in accordance with the parties' plea agreement.  



         Background  



                   Dimitrios Nickolaos Alexiadis was charged with three counts of second- 



degree assault for fracturing his infant son's leg, arm, and ribs.  The parties reached a  

                                                         



Rule 11 agreement in which Alexiadis was to plead guilty to one consolidated count of  

                                                         



second-degree assault, admitting all the conduct charged in the complaint, agreeing not  

                                                                                            



to assert any mitigating factors, waiving his right to request referral to the three-judge  



sentencing panel, and agreeing to pay restitution.  The State, in turn, agreed to dismiss  

                                                                          



the other two charges and agreed not to pursue any aggravating factors for the purpose  

                                       



of obtaining a sentence above the applicable presumptive sentencing range of 1 to 3  

years' imprisonment.1  

                                  



                   The superior court initially accepted Alexiadis's guilty plea, but after the  



court  reviewed  the  presentence  report,  the  court  rejected  the  plea  agreement  as  too  



lenient.  The court explained that it was rejecting the agreement because the State's  



decision   not   to   raise   aggravating   factors   -   in   particular,   AS   12.55.155(c)(5)  



(particularly vulnerable victim) and AS 12.55.155(c)(18)(A) (offense committed against  



a member of the same social unit) - meant that the court's sentencing authority was  



limited to the 1- to 3-year  presumptive range, a range that the court concluded was too  

                                                                               



lenient under the facts of the case.   



     1    See AS 12.55.125(d)(1).  



                                                           - 2 -                                                      2463
  


----------------------- Page 3-----------------------

                     Alexiadis filed a motion urging the court to accept the plea agreement, and       



arguing that the court had no authority to reject the agreement on this ground.                                                    The  



superior court denied this motion, and Alexiadis then filed this petition for review.   



                     The State initially opposed this petition, but the State now agrees with  



Alexiadis that the superior court had no authority to reject the plea agreement on this  

                 



basis.  



           Why we conclude that the superior court had no authority to reject the  

          parties' plea agreement on the ground that the State agreed not to raise  

                                                                                                             

           aggravating factors  



                     As we have explained, Alexiadis claims that the superior court exceeded  



its authority by rejecting the parties' plea agreement, and the State agrees with Alexiadis.  

                                                                                   



When the State concedes error in a criminal case, we must independently review the  

record and the law to determine if the concession is well-founded.2  



                     Under the laws governing presumptive sentencing in Alaska, a court may  



not impose a sentence above the applicable presumptive range absent proof of at least  



one statutory aggravating factor codified in AS 12.55.155(c).  As originally conceived  

                                          



by  the  legislature,  these  statutory  aggravating  factors  were  all  to  be  litigated  to  the  

                                                                             



sentencing judge, sitting without a jury, and had to be proven by clear and convincing  



               3  

evidence.                                                                 

                  But in Blakely v. Washington , the United States Supreme Court held that it  



                                                                                          

violated the Sixth Amendment's guarantee of a jury trial to subject a criminal defendant  



                                                                                                                  

to an enhanced maximum sentence for an offense based on aggravating factors that had  



                                                                                                                             

not been proved to a jury beyond a reasonable doubt, unless the aggravating factor is  



     2     See Marks v. State         , 496 P.2d 66, 67-68 (Alaska 1972);                  Roberts v. State , 751 P.2d 507,  



507 (Alaska App. 1988).  



     3     See former AS 12.55.155(f) (pre-March 2005 version).  



                                                                 - 3 -                                                            2463
  


----------------------- Page 4-----------------------

based on the defendant's prior convictions, or flows directly from the jury's findings, or   



                                             4  

is conceded by the defendant.    



                    In response to Blakely , the Alaska Legislature revised Alaska's presumptive  



                         5  

sentencing laws.   The Legislature's revision replaced the previous presumptive terms  



                                                                                                   

for offenses with presumptive ranges, the top of which cannot be exceeded absent proof  



                                       

of an aggravating factor.  The revision also created two classes of aggravating factors -  



those  which  a  judge  can  continue  to  find  by  clear  and  convincing  evidence,  sitting  

without a jury, and those which must be proved to a jury beyond a reasonable doubt.6  

                                                   



                                                                                                                     

The two aggravating factors identified by Judge Volland in Alexiadis's case fall within  



this second class.  



                    Before Blakely , we held that courts had the authority - indeed, the duty  



                                                                                   

- to find aggravating and mitigating factors that were established by the record, as long  



                                                                                                      7  

                                      

as the parties had notice and an opportunity to be heard on the issue.   We discussed that  



principle in Hartley v. State , a case in which the State did not seek any aggravating  



factors and expressed satisfaction with the presumptive term.  The sentencing court  



                               

nevertheless found an aggravating factor on its own initiative, and then relied on that  

factor to impose a harsher sentence.8  

                                                          We affirmed the court's decision, ruling that the  



State  had  no  discretion  to  suppress  evidence  of  prior  convictions  or  aggravating  or  



     4    Blakely v. Washington , 542 U.S. 296, 301-04, 124 S.Ct. 2531, 2537-38 (2004).
  



     5    Ch. 2,  1, SLA 2005; 2005 Senate Journal 102-23.
  



     6    AS 12.55.155(f)(1)-(2).
  



     7    Hartley v. State , 653 P.2d 1052, 1055-56 (Alaska App. 1982).
  



     8    Id. 
 



                                                              - 4 -                                                          2463
  


----------------------- Page 5-----------------------

                            9  

mitigating factors.   We reasoned that allowing the parties to ignore these factors would       

contravene the legislative goal of reducing unjustified disparity in sentencing.10  



                     Our reasoning in Hartley remains sound as applied to aggravating factors  

                                                             



that do not require a jury trial under Blakely - aggravating factors that are based on the  



defendant's prior convictions, or on facts necessarily encompassed by the jury's verdicts,  



or on facts expressly conceded by the defendant.   



                     But the situation is different with respect to aggravating factors that must  



be proved to a jury under Blakely .  A sentencing court has no authority to find these  

                                                                                              



factors in the absence of a jury verdict.  And the court has no authority to compel the  

                                                                                       



State to litigate these factors to a jury.  



                     In State v. District Court, we held that a trial court has no authority to reject  

                                                                                                 



a plea agreement on the basis that the State could easily prove a more serious charge at  

                                                                                                            

trial but instead agreed to resolve the case with a plea to a lesser charge.11  

                                                                                                                 We explained  



that decisions on whether to bring criminal charges, or what offenses to charge, fell  

within the long-recognized charging discretion of the executive branch.12  

                                                                                                                And we found  



                                                                                 

no  indication  that the legislature, when  it enacted  our presumptive sentencing  laws,  



                                                                                                        13  

intended to abrogate or limit this prosecutorial charging discretion.                                       



                                                                                            

                     The executive branch's charging discretion is likewise reflected in Alaska  



                                                                                           

Criminal Rule 11(e), the rule that sets out the procedure for courts to follow in accepting  



                                                                                                      

or  rejecting  plea  agreements.    Rule  11(e)  authorizes  a  court  to  reject  a  "sentencing  



     9    Id. at 1056; see also State v. Dague , 143 P.3d 988, 996-97 (Alaska App. 2006).  



     10   Hartley , 653 P.2d at 1056.  



     11   State v. District Court, 53 P.3d 629, 631 (Alaska App. 2002).  



     12   Id. at 633-34; see also Alaska R. Crim. P. 43(a) (allowing the government to dismiss  



a charge before trial, without the consent of the court).   



     13   District Court , 53 P.3d at 633.  



                                                               - 5 -                                                          2463
  


----------------------- Page 6-----------------------

agreement" (an agreement that limits the court's sentencing authority for a particular   



charge or set of charges), but it does not authorize a court to reject a "charge agreement"  



(an agreement that specifies the charges to which the defendant will plead guilty, but  



does not limit the court's sentencing authority with respect to those charges).   



                   We note that a previous version of Rule 11(e) granted courts the authority  

                                                                                                            

to reject charge agreements as well as sentencing agreements,14  

                                                                                           but the rule was quickly  



amended to delete the reference to charge agreements.  A memorandum written by the  



court rules attorney to the supreme court explained that the Criminal Rules Committee  

                                                                                  



viewed this amendment as a "correction" - because, under Alaska law, "a judge has no  

                                                                                                         

authority to disapprove a charge agreement."15  



                   Because  of  the  United  States  Supreme  Court's  holding  in  Blakely ,  the  



litigation of non-Blakely-compliant aggravating factors necessarily entails holding a jury  



trial (unless the defendant waives the right to  a  jury).  And while executive branch  

                                                                      



prosecutors are obviously authorized to litigate these aggravating factors at a jury trial,  

                                                                                                           



the judiciary has no authority to force  executive branch prosecutors to litigate these  

                                                           



factors at a jury trial.  See Public Defender Agency v. Superior Court , 534 P.2d 947, 950- 

                                                                                                    



51 (Alaska 1975) (holding that a court has no authority to order the executive branch to  

                                        



undertake the prosecution of contempt charges that the court wishes to pursue).  



                   We therefore hold that, with respect to those aggravating factors that require  



a jury trial, the State's decision to litigate these aggravating factors, or to refrain from  

                                                   



litigating them, should be categorized as a charging decision - a decision that is left to  

                                                                            



the sole discretion of the executive branch.  



     14   See Supreme Court Order 1194 (effective July 15, 1995).  



     15   Memorandum to the Alaska Supreme Court from Court Rules Attorney Christine  



Johnson (Aug. 3, 1995).  



                                                           - 6 -                                                       2463
  


----------------------- Page 7-----------------------

                    We therefore agree with the parties that the superior court acted outside its     



authority when it rejected the plea agreement in this case.  



          Conclusion  



                    We REVERSE the decision of the superior court and REMAND this case  

                                                                                                                     



to  the  superior  court  for  further  proceedings  in  accordance  with  the  parties'  plea  



agreement.  



                                                             - 7 -                                                        2463
  

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