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Brown v. State (6/22/2018) ap-2605

Brown v. State (6/22/2018) ap-2605

                                                                                                       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@ akcourts.us  



                                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                                  



JEFFREY  L.  BROWN,  

                                                                                                                                                                                           

                                                                                                                                     Court of Appeals No. A-11666  

                                                                                                                                                                                                           

                                                                      Appellant,                                                   Trial Court No. 3PA-13-378 CR  



                                                    v.  

                                                                                                                                                      O  P  I  N  I  O  N  

                                                                                                                                                                                           

STATE  OF  ALASKA,  



                                                                      Appellee.                                                           No. 2605 - June 22, 2018  

                                                                                                                                                                                                 



                                   Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                                                                                                                             

                                   Vanessa H. White, Judge.  

                                                                                  



                                   Appearances:  Ariel J. Toft, Assistant Public Defender, Palmer,  

                                                                                                                                                                             

                                   and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  

                                                                                                                                                                                     

                                   Appellant.  Ann B. Black, Assistant Attorney General, Office of  

                                                                                                                                                                                          

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

                                                                                                                                                                                  

                                   Lindemuth, Attorneys General, Juneau, for the Appellee.  

                                                                                                                                                                                



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

                                                                                                                                                                         



                                   Judge MANNHEIMER.  

                                                   



                                   A person's criminal conviction in another state counts as a "prior felony                                                                                                     



conviction" for purposes of Alaska's presumptive sentencing laws if the elements of the                                                                                                                                   



out-of-state offense are similar to the elements of a felony                                                                                                 defined by Alaska law (as                                    



determined at the time the prior offense was committed).                                                                                               See  AS 12.55.145(a)(1)(B).                                                  



The question presented in this appeal is whether the Montana offense of felony driving                                                                                                                          


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

                                                                                                                          

under the influence is sufficiently similar to the Alaska version of felony DUI to qualify  



                                               

as a "prior felony conviction".  



                                                                                                                          

                    The defendant in this case, Jeffrey L. Brown, pleaded guilty to a felony  



                                                                                                                             

(third-degree weapons misconduct).  Brown had one prior conviction - a felony DUI  



                                                                                                                       

conviction from Montana.  At Brown's sentencing, the parties disagreed as to whether  



                                                                                                                          

this  Montana  conviction  should  be  counted  as  a  "prior  felony  conviction"  under  



                                       

AS 12.55.145(a)(1)(B).  



                                                                                                                          

                    If the Montana DUI conviction met the statutory test for a "prior felony  



                                                                                                                          

conviction", then the superior court was required to sentence Brown as a second felony  



                                                                                                                      

offender for purposes of Alaska's presumptive sentencing laws.   But if the Montana  



                                                                                                                      

conviction did not meet the statutory test, then Brown was only a first felony offender,  



                                                                                

and he faced a lower presumptive sentencing range.  



                                                                                                                    

                    The superior court ultimately ruled that Brown's Montana DUI conviction  



                                                                                                                     

met the statutory test for a "prior felony conviction", and the court therefore sentenced  



                                                                                                         

Brown as a second felony offender.  Brown now appeals this ruling.  



                                                                                                                       

                    At first glance, the question confronting this Court is whether the elements  



                                                                                                                          

of felony DUI under Montana law were sufficiently similar to the elements  of felony  



                                                                                                                                 

DUI under Alaska law in 2001, when Brown committed his Montana offense.  But in  



                                                                                                                            

Brown's case, the answer to this question ultimately hinges  on the answer to a more  



                                                                                                                         

specific question:  When AS 12.55.145(a)(1)(B) speaks of the "elements" of an out-of- 



                                                                                                                              

state offense, does the statute use the term "elements" in the strict sense of "facts that  



                                                                                                                              

must be proved to the finder of fact beyond a reasonable doubt", or does the statute use  



                                                                          

the term "elements" in a more expansive sense?  



                                                                                                                  

                    In Alaska, when a defendant is prosecuted for felony DUI, the defendant's  



                                                                                                                  

prior DUI convictions are elements of the offense in the strict sense:  the convictions  



                                                                                                                              

must be proved to the trier of fact beyond a reasonable doubt.  See Ross v. State, 950  



                                                              - 2 -                                                          2605
  


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

P.2d 587, 590 (Alaska App. 1997);                                                                Ostlund v. State                            , 51 P.3d 938, 941 (Alaska App.                                            



2002).    



                                    In   Montana, on the other hand, a defendant's prior convictions are                                                                                                                    not  



elements of felony DUI in this strict sense.                                                                        Instead, at the defendant's trial, the finder                                                     



of fact decides only whether the defendant committed DUI on the occasion in question.                                                                                                                                                    



A defendant has no right to jury trial regarding their prior convictions.                                                                                                                          See State v.                  



 Weldele, 69 P.3d 1162, 1171-72 (Mont. 2003).                                                                                 If the defendant is found guilty at trial,                                                  



and if the sentencing court finds that the defendant has certain types of prior convictions,                                                                                                          



those prior convictions authorize the court to enhance the defendant's sentence to felony                                                                                                                            



                  1  

levels.    



                                    About  a  third  of  the  states  have  DUI  sentencing schemes  that  mirror  

                                                                                                                                                                                                                    



                                                          2  

Montana's approach.                                            This legal framework is constitutional because the right to jury  

                                                                                                                                                                                                                           



trial announced in Apprendi v. New Jersey  and Blakely v. Washington  does not apply  

                                                                                                                                                                                                                       



         1        See  Montana Code  61-8-401, 61-8-714, and 61-8-731 (2001 versions).                                                                                                                        



         2  

                                                                                                                                                                                                                                  

                  See Altherr v. State, 911 So.2d 1105, 1111, 1114 (Ala. Crim. App. 2004); People v.  

                                                                                                                                                                                                                             

 Casillas, 111 Cal.Rptr.2d 651, 655 (Cal. App. 2001); Talley v. State, unpublished, 2003 WL  

                                                                                                                                                                                                                     

23104202 at *2 (Del. 2003); State v. Farfan-Galvan, 389 P.3d 155, 160 n. 5 (Idaho 2016);  

                                                                                                                                                                                                                           

People v. Braman , 765 N.E.2d 500, 502-04 (Ill. App. 2002); State v. Kendall, 58 P.3d 660,  

                                                                                                                                                                                                                                  

668 (Kan. 2002); Commonwealth v. Ramsey, 920 S.W.2d 526, 528 (Ky. 1996); People v.  

                                                                                                                                                                                                                          

 Callon, 662 N.W.2d 501,508 (Mich.App.2003);State v. Rattles, 450 S.W.3d 470, 473 (Mo.  

                                                                                                                                                                                                                           

App. 2014); State v. Huff, 802 N.W.2d 77, 102 (Neb. 2011); Ronning v. State , 992 P.2d 260,  

                                                                                                                                                                                                                                  

261 n. 3 (Nev. 2000); State v. Thompson ,  58  A.3d 661, 663-65 (N.H. 2012); State v.  

                                                                                                                                                                                                                           

Bullcoming , 189 P.3d 679, 686-87 (N.M. App. 2008); State v. Wideman, 556 N.W.2d 737,  

                                                                                                                                                                                                              

743 (Wis. 1996); Derrera v. State , 327 P.3d 107, 110 (Wyo. 2014).  Cf. People v. Martinez,  

                                                                                                                                                                                                                          

 128 P.3d 291, 294 (Colo. App. 2005) (holding that a defendant has no right to jury trial when  

                                                                                                                                                                                                                                 

the court determines whether the defendant has prior convictions that raise the sentence to  

                                         

a felony level).  



                                                                                                              - 3 -                                                                                                        2605
  


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

when   the   factor   that   elevates   a   defendant's   crime   or   sentence   is   a   prior   criminal  



                    3  

conviction.    



                       To sum up our discussion thus far:  Under the law of Montana and these  

                                                                                                                                               



other states, the things that must be proved to justify a felony-level sentence for DUI -  

                                                                                                                                                    



i.e., the commission of a current DUI, plus qualifying prior convictions - are basically  

                                                                                                                                         



the same things that must be proved to justify a felony-level DUI conviction in Alaska.  

                                                                                                                                                         



(In fact, Montana law is arguably stricter:  Montana generally does not impose a felony- 

                                                                                                                                           



level sentence for DUI until a defendant has three prior convictions - not the two prior  

                                                                                                                                                

                                                                     4)   But  Montana and the other states listed in  

convictions required under Alaska law.  

                                                                                                                                                     



footnote 2 do not consider a defendant's prior convictions to be "elements" of the crime  

                                                                                                                                              



in the strict sense.  As a result, defendants in these states are not entitled to a jury trial on  

                                                                                                                                                    



the issue of whether they have prior convictions.  

                                                                                       



                       Thus, the real question presented in this appeal is whether the definition of  

                                                                                                                                                     



"prior  felony  conviction"  codified  in  AS  12.55.145(a)(1)(B)  excludes  felony  DUI  

                                                                                                                                               



convictions  from  states  like  Montana  -  states  where  the  question  of  whether  the  

                                                                                                                                                  



defendant has prior convictions is litigated to the sentencing judge rather than to the jury.  

                                                                                                                                                         



                       Brown argues that AS 12.55.145(a)(1)(B) should be interpreted to exclude  

                                                                                                                                           



felony  DUI  convictions  from  Montana  and  these  other  states.                                                   In  support  of  this  

                                                                                                                                                 



argument, Brown relies on this Court's decision in State v. Peel, 843 P.2d 1249 (Alaska  

                                                                                                                                           



App.  1992).             The question in Peel  was  whether  a defendant's prior conviction for  

                                                                                                                                                  



misdemeanor DUI in Louisiana should be counted as a prior conviction for purposes of  

                                                                                                                                                     



      3    Apprendi v. New Jersey                   , 530 U.S. 466, 490; 120 S.Ct. 2348, 2362-63; 147 L.Ed.2d                              



435 (2000);          Blakely v. Washington                  , 542 U.S. 296, 301-04; 124 S.Ct. 2531, 2537-38; 159                                  

L.Ed.2d 403 (2004).                 



      4  

                                                                                                                                                    

            Compare the 2001 version of Montana Code   61-8-731 with the 2001 version of  

                               

AS 28.35.030(n).  



                                                                        - 4 -                                                                   2605
  


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

enhancing the defendant's Alaska sentence. This Court held that, because Louisiana law                                                                                                                                                                                                                                                                                                            



did not give misdemeanor DUI defendants the right to a jury trial, the defendant's prior                                                                                                                                                                                                                                                                                                    



misdemeanor DUI conviction from Louisiana could                                                                                                                                                                                                           not   be counted as a prior DUI                                                                                                   



conviction in Alaska.                                                                              Peel, 843 P.2d at 1250-51.                                                                                                           



                                                              Brown argues that our interpretation of AS 12.55.145(a)(1)(B) should be                                                                                                                                                                                                                                                                 



guided by our decision in                                                                                         Peel.   He contends that Alaska should not recognize an out-of-                                                                                                                                                                                                



 state conviction unless, in that other state, a defendant's right to jury trial is co-extensive                                                                                                                                                                                                                                                       



with the right to jury trial granted by Alaska law.                                                                                                                                                                                 



                                                              But   the   situation   presented   in   Peel   is   not   equivalent   to   the   situation  



presented in Brown's case.                                                                                                    The defendant in                                                                     Peel  faced a higher penalty for his Alaska                                                                                                                     



DUI conviction because of his prior conviction for misdemeanor DUI in Louisiana -                                                                                                                                                                                                                                                                                                                    



a   conviction   that   was   based   on   a   judge's   verdict   rather   than   a   jury's,   because  



misdemeanor defendants in Louisiana                                                                                                                                                   had   no   right to be tried by jury.                                                                                                                           In  Peel, we   



concluded that the Louisiana judge's finding that Peel had committed DUI "[was] simply                                                                                                                                                                                                                                                                                              



too unreliable to be depended on".                                                                                                                                Peel, 843 P.2d at 1251.                                                                                               



                                                               In Brown's case, on the other hand, his Montana DUI conviction was based                                                                                                                                                                                                                                                  



on a     jury's   finding that he committed DUI.                                                                                                                                                               It is true that Brown's                                                                                          sentencing judge   



elevated Brown's                                                                  sentence  for this offense based on Brown's prior DUI convictions -                                                                                                                                                                                                                                                 



but Brown's prior DUI convictions were likewise based on jury findings that Brown was                                                                                                                                                                                                                                                                                                          



guilty of DUI (or those convictions were entered after Brown waived his right to jury                                                                                                                                                                                                                                                                                                         



                           5  

trial).    



                                                              Because Brown had the right to be tried by jury for all of his prior Montana  

                                                                                                                                                                                                                                                                                                                                                                         



crimes, we do not face the same problem as in Peel :  there is no reason to believe that  

                                                                                                                                                                                                                                                                                                                                                                                               



any of the Montana findings of criminality are "too unreliable to be depended on".  

                                                                                                                                                                                                                                                                                                                                                                                                 



                5              See State v. Meyer                                                                  , 396 P.3d 1265, 1268-69 (Mont. 2017);                                                                                                                                          State v. Weldele                                                         , 69 P.3d         



 1162, 1171-72 (Mont. 2003).                                                                                                          



                                                                                                                                                                                                - 5 -                                                                                                                                                                                           2605
  


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

                       Montana   law   differs from Alaska law when it comes to the question of                                                  



whether   a   DUI   defendant   does,   in   fact,   have   prior   convictions:     in   Montana,   the  

                                                           6   But even under Alaska law, where a defendant can  

sentencing judge decides this issue.                                                                                                          



demand a jury trial on this issue, the defendant's right to challenge the prior convictions  

                                                                                                                                 



is fairly limited.  

                             



                       In Brockway v. State, 37 P.3d 427, 429-430 (Alaska App. 2001), this Court  

                                                                                                                                           



held that a defendant generally has no right to collaterally attack their prior convictions  

                                                                                                                                 



when the defendant is prosecuted for a new crime, even if the defendant's sentence for  

                                                                                                                                               



the  new  crime  will be  enhanced  on  account  of  those  prior  convictions.                                                     See  also  

                                                                                                                                             



Brodigan v.  State,  95 P.3d 940,  943-44 (Alaska App.  2004),  where we held that a  

                                                                                                                                                  



defendant's prior DUI convictions are presumed to be valid -  so  that even when a  

                                                                                                                                                  



defendant asserts that there was a constitutional flaw in the statute under which they were  

                                                                                                                                            



convicted, it is the defendant's burden to present some affirmative evidence that, given  

                                                                                                                                           



the  facts  of  their  case,  their  prior  conviction  was  indeed  affected  by  this  alleged  

                                                                                                                                        



constitutional infirmity.  

                         



                       AS 12.55.145(c) lists a few narrow  grounds on which a defendant can  

                                                                                                                                              



challenge their prior convictions.  For example, a defendant is allowed to challenge the  

                                                                                                                                               



authenticity of the prior judgement of conviction, or to deny that they are the person  

                                                                                                                                        



named in that judgement, or to challenge whether their prior conviction occurred during  

                                                                                                                                          



the pertinent "look-back" period.  

                                                          



                       Because  felony  DUI  defendants  have  only  a  circumscribed  ability  to  

                                                                                                                                                



challenge their prior convictions, we have seen very few cases in which a felony DUI  

                                                                                                                                            



defendant has actually insisted on their right to jury trial on this issue.  More commonly,  

                                                                                                                                 



a felony DUI defendant will invoke their right to a bifurcated trial under  Ostlund v.  

                                                                                                                                                 



      6     State v. Damon           , 119 P.3d 1194, 1197, 1201 (Mont. 2005).                               



                                                                      - 6 -                                                                  2605
  


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

                                 7  

State,   so that the jury never hears about the prior convictions unless the jury finds the                                                                                                                                                                                                                                                                                                                                                                          



defendant guilty of the current DUI charge.                                                                                                                                                                                                               Even then, a DUI defendant will often                                                                                                                                                       



 stipulate that they have the prior convictions, or the defendant will waive their further                                                                                                                                                                                                                                                                                                                                                       



right to a jury trial and agree to have the judge make this determination.                                                                                                                                                                                                                                                                                                                                



                                                                         Thus, even though a defendant's prior convictions are an element of felony                                                                                                                                                                                                                                                                                                   



DUI (in the strict sense) under Alaska                                                                                                                                                                                       law,   there appears to be very little practical                                                                                                                                                           



difference between the way felony DUI charges are normally litigated in Alaska and                                                                                                                                                                                                                                                                                                                                                                              



the   way   felony   DUI   charges   are   litigated   in   Montana   and   the   other   states   listed   in  



footnote 2.                                                    



                                                                         We acknowledge that, in some contexts, the difference between Alaska law                                                                                                                                                                                                                                                                                                                    



and Montana law might be crucial.                                                                                                                                                                  But   our   task in the present case is to assess the                                                                                                                                                                                                             



 significance of this difference                                                                                                                                   as a general                                                                    matter, in light of the definition of "prior                                                                                                                                                       



felony conviction" found in AS 12.55.145(a)(1)(B).                                                                                                                                                                                                                                           



                                                                         The fact that, in Alaska, a defendant's prior convictions are normally not                                                                                                                                                                                                                                                                                                                  



litigated to the jury, even though felony DUI defendants have a right to jury trial on this                                                                                                                                                                                                                                                                                                                                                                         



element, suggests that our legislature did not intend AS 12.55.145(a)(1)(B) to exclude                                                                                                                                                                                                                                                                                                                                                       



felony DUI convictions from Montana and all the other states listed in footnote 2, where                                                                                                                                                                                                                                                                                                                                                              



a defendant's prior convictions are, by law, litigated to the sentencing judge.                                                                                                                                                                                                                                                                                                                                                  



                                                                         This conclusion is bolstered by the                                                                                                                                                                 Alaska Supreme Court's decision in                                                                                                                                                             



State v.                                    Smart,   202 P.3d 1130 (Alaska 2009).                                                                                                                                                                                        The question litigated in                                                                                                                        Smart   was  



whether the right to jury trial announced in                                                                                                                                                                                                         Apprendi  v.  New Jersey                                                                                                                       and   Blakely v.   



  Washington   should   be   applied   retroactively   -   in   other   words,   whether   criminal  



defendants whowere convicted and sentenced before                                                                                                                                                                                                                                         Apprendi  and  Blakely  were decided   



                  7                  51 P.3d 938, 941-42 (Alaska App. 2002).                                                                                                                                                                                 



                                                                                                                                                                                                                                 - 7 -                                                                                                                                                                                                                             2605
  


----------------------- Page 8-----------------------

 could collaterally attack their convictions or sentences based on the fact that they did not                                                                                      



receive a jury trial on aggravating factors as required by                                                              Apprendi  or  Blakely.  



                             In resolving this issue, our supreme court considered whether the require-                                                                  



ment of a jury trial was intended to ensure the fundamental                                                                            fairness of the judicial           



proceedings - or, phrased another way, whether it was fundamentally unfair to have a                                                                                                   

                                                                                                 8    The supreme court concluded that the  

judge decide these issues rather than a jury.                                                                                                                                     



 answer to this question was "no":  

                                                             



                               

                                           The  [United  States]  Supreme  Court,  in  Schriro  v.  

                                                                                                                                                        

                             Summerlin,  has  already  [held]  that  judicial  fact-finding,  

                                                                                                                                  

                             instead of jury fact-finding, does not "so seriously  diminish  

                                                                                                                                           

                             accuracy  as  to  produce  an  impermissibly  large  risk  of  

                                                                                                                                                       

                             injustice."  We think the Court's analysis is persuasive on this  

                                                                                                                                                      

                             point.            In  Summerlin,  ...  the  Court  concluded  that  the  

                                                                                                                                                     

                             evidence of whether judges or juries were better fact-finders  

                                                                                                                                     

                             was too equivocal to conclude that judges were less accurate  

                                                                                                                                           

                             fact-finders or to hold that "judicial factfinding so seriously  

                                                                                                                                         

                             diminishes accuracy that there is an impermissibly large risk  

                                                                                                                                                     

                             of punishing conduct the law does not reach."  ...  We think  

                                                                                                                                                  

                             it is highly likely that the [U.S. Supreme] Court would reach  

                                                                                                                                                 

                             the  same  conclusion  if  it  were  deciding whether  the  jury  

                                                                                                                                                    

                             fact-finding rule of Blakely is fully retroactive.  We therefore  

                                                                                                                                          

                             conclude that judicial fact-finding instead of jury fact-finding  

                                                                                                                                     

                             does not substantially impair the truth-finding function of the  

                                                                                                                                                      

                             criminal trial and does not raise serious questions about the  

                                                                                                                                                      

                             accuracy of fact-finding ... .  

                                                                                         



Smart, 202 P.3d at 1142-43 (emphasis in the original text of Schriro v. Summerlin).  

                                                                                                                                                                                     



                             The supreme court's resolution of this point in Smart obviously casts doubt  

                                                                                                                                                                              



 on this Court's decision in Peel - in particular, our conclusion that, unless a defendant  

                                                                                                                                                                    



        8      Smart, 202 P.3d at 1142-43.                                 



                                                                                        - 8 -                                                                                   2605
  


----------------------- Page 9-----------------------

                                                                                                                              

has the right to demand a trial by jury,  any  verdict  in a bench trial is "simply too  



                                                                                                                             

unreliable to be depended on".   But even assuming that Peel  remains good law with  



                                                                                                                        

respect to out-of-state findings of guilt , we will not extend Peel to out-of-state findings  



                                                             

that a defendant has prior convictions.  



                                                                                                                              

                    Based  on  our  supreme  court's  discussion  in  Smart,  and  based  on  our  



                                                                                                                          

conclusion that the Alaska legislature probably did not intend to exclude prior felony  



                                                                                                                             

DUI convictions  from  a third of our sister states,  we now hold that a felony DUI  



                                                                                                                        

conviction from Montana is a "prior  felony conviction" for purposes of AS 12.55.- 



                                                                                                                        

145(a)(1)(B).   More specifically, we hold that the elements of felony DUI as defined  



                                                                                                                                 

under Montana law are sufficiently similar to the elements of felony DUI as defined in  



                                                                                                                               

Alaska, even though, in Montana, a defendant has no right to demand a jury trial on the  



                                                      

question of their prior convictions.  



                                                                                                                          

                    Accordingly, we AFFIRM the superior court's decision to sentence Brown  



                                             

as a second felony offender.  



                                                              - 9 -                                                          2605
  

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