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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Smart (02/27/2009) sp-6340

State v. Smart (02/27/2009) sp-6340, 202 P3d 1130

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


STATE OF ALASKA, )
) Supreme Court No. S- 12493
Petitioner, )
) Court of Appeals No. A-9025
v. ) Superior Court No. 1KE-01-01382 CR
)
TROY SMART, ) O P I N I O N
)
Respondent. ) No. 6340 - February 27, 2009
)
STATE OF ALASKA,           )
                              )    Supreme Court No. S-12543
          Petitioner,              )
                              )    Court of Appeals No. A-8934
     v.                        )     Superior Court  No.  2KB-98-
00491 CR
                              )
HENRY DOUGLAS,           )
                              )
          Respondent.              )
                              )



          Petition for Hearing in File No. S-12493 from
          the  Court of Appeals of the State of Alaska,
          on  appeal  from the Superior  Court  of  the
          State  of  Alaska,  First Judicial  District,
          Ketchikan,  Larry R. Weeks, Judge.   Petition
          for  Hearing  in  File No. S-12543  from  the
          Court  of Appeals of the State of Alaska,  on
          appeal  from the Superior Court of the  State
          of    Alaska,   Second   Judicial   District,
          Kotzebue, Ben J. Esch, Judge.

          Appearances:   Timothy W. Terrell,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for  Petitioner.  Linda K. Wilson,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for Respondents.  Joshua
          P.  Fink,  Public  Advocate,  Anchorage,  for
          Amicus Curiae Office of Public Advocacy.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION
          The  question presented in these two cases  is  whether
the  right  to  a jury trial announced in Blakely v.  Washington1
should  be  retroactively applied to two state  defendants,  Troy
Smart  and Henry Douglas, whose sentences were final before  June
24,  2004, when Blakely was decided.  Blakely requires  that  any
fact   except a fact admitted by the defendant or the fact  of  a
prior  conviction   necessary to increase a  sentence  above  the
statutory  presumptive  maximum be proved  to  a  jury  beyond  a
reasonable doubt.  We decline to give Blakely full retroactivity.
We  conclude  that the purpose of Blakely does not raise  serious
questions  about  the  accuracy of past  sentences  and  must  be
weighed  against  the states reliance on the old  rule  for  over
twenty  years  and the administrative burden of implementing  the
new  rule retroactively.  We therefore reverse the rulings of the
court of appeals in these two cases and remand.
II.  FACTS AND PROCEEDINGS
          A  jury  convicted Troy Smart of second-degree assault.
Because Smart was a second felony offender he faced a presumptive
sentence  of  four years with a maximum sentence of  ten  years.2
The  sentencing judge found an aggravating factor and in May 2002
sentenced  Smart  to  serve ten years, with six  of  those  years
suspended.3   The  court of appeals affirmed Smarts  sentence  in
January 2003.4  Smart did not seek further review of his sentence
at that time.
          Henry   Douglas  pleaded  no  contest  to  first-degree
robbery.  As a second felony offender Douglas faced a presumptive
sentence  of  ten years and a maximum sentence of twenty  years.5
In  August  1999 the sentencing judge found multiple  aggravating
factors and sentenced Douglas to serve eighteen years, with eight
of  those years suspended.6  Douglas appealed but his appeal  was
dismissed in April 2000.7
            In June 2000 the United States Supreme Court held  in
Apprendi  v.  New  Jersey that defendants have  a  constitutional
right  to  have a jury decide any disputed fact  other  than  the
fact of a prior conviction  that increases a sentence beyond  the
statutory  maximum, and to have each such fact  proved  beyond  a
reasonable doubt.8  In June 2004 the Supreme Court in Blakely  v.
Washington  for  the first time applied Apprendi  to  a  sentence
imposed  under  a  presumptive sentencing scheme.9   It  held  in
          Blakely that a defendants sentence was invalid because the
aggravating facts, which supported an increase above the sentence
that  was  authorized  by the jurys verdict alone,  were  neither
admitted by the defendant nor found by a jury.10
          After  Blakely  was  issued, Douglas  filed  an  Alaska
Criminal Rule 35(a) motion claiming that his sentence was illegal
under  Blakely.  Superior Court Judge Ben J. Esch denied Douglass
motion,  holding  that Blakely is not retroactive  and  does  not
apply to this case because it is not on . . . direct appeal.
          Likewise,  Smart  filed an Alaska Criminal  Rule  35(a)
motion  in  2004,  claiming that his sentence was  illegal  under
Blakely.   Superior  Court Judge Larry R.  Weeks  concluded  that
Smarts request could only be presented as an Alaska Criminal Rule
35.1 petition for post-conviction relief.  Treating the motion as
a  Rule  35.1 petition, Judge Weeks denied Smarts motion, holding
that  Blakely did not apply retroactively to cases that have been
decided on appeal.
          Smart  and Douglas both appealed.  The court of appeals
decided  Smarts  appeal  first.  It first  held  that  the  state
retroactivity test announced in Judd v. State11  not the  federal
retroactivity test announced in Teague v. Lane12  applied.13   It
then  held  that Blakely should be fully retroactive in Alaska.14
It  therefore  vacated Smarts sentence and remanded  for  further
proceedings  on the disputed aggravating factor.15  In  resolving
Douglass  appeal, the court of appeals relied on its decision  in
Smart  and remanded for further proceedings on Douglass contested
aggravators.16
          The  state filed petitions for hearing challenging both
decisions.  We granted the petitions, ordered full briefing,  and
consolidated the cases for decision.
III.      DISCUSSION
     A.   Standard of Review

          These cases require interpretation of the United States
and   Alaska  Constitutions  and  federal  and  state  case   law
concerning the retroactivity of appellate decisions.  We use  our
independent judgment in reviewing rulings turning on federal  and
state constitutional law.17
     B.   Apprendi and Blakely
            Because  this  case turns on whether Blakely  applies
retroactively to cases on collateral review,18 we begin  with  an
overview of Blakely and its predecessor, Apprendi.
          Apprendi.  Apprendi fired bullets into the home  of  an
African-American  family.19   He entered  a  plea  agreement  and
pleaded  guilty  to  three of the twenty-three counts  charged.20
Under  Apprendis  plea agreement, the sentences  for  two  counts
would  run  consecutively and the sentence for  the  third  count
would  run concurrently with the other two.21  Apprendi  faced  a
maximum aggregate sentence of twenty years on the two counts (ten-
year  maximum for each count) if the judge found no basis  for  a
hate-crime  enhancement.22   But if  the  hate-crime  enhancement
applied  to one count, a New Jersey statute authorized a  twenty-
year  maximum  sentence  on  that  count  alone.23   Applying   a
preponderance  of  the  evidence standard, the  sentencing  judge
          found that the hate-crime enhancement applied to one count.24  He
sentenced  Apprendi to a twelve-year term on that  count  and  to
shorter concurrent sentences on the other two counts.25
          The  question  before the Supreme Court was  whether  a
jury  had to find on the basis of proof beyond a reasonable doubt
that there had been a hate crime.26  This question would determine
whether  the  twelve-year  sentence  on  the  single  count   was
permissible  given the ten-year maximum for that offense.27   The
Court  held that: Other than the fact of a prior conviction,  any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved  beyond
a reasonable doubt.28  The Court reversed the judgment of the New
Jersey Supreme Court, which had upheld Apprendis sentence.29
          Blakely.  In Blakely the Supreme Court applied Apprendi
to  a  presumptive sentencing system for the first time.  Blakely
pleaded  guilty  in Washington State to kidnaping  his  estranged
wife.30   Per  state  statute, the standard  range  for  Blakelys
conviction  was forty-nine to fifty-three months.31  The  statute
allowed  a  sentence above the standard range if the judge  found
substantial  and  compelling reasons  justifying  an  exceptional
sentence.32  The judge imposed an exceptional sentence of  ninety
months  (thirty-seven months above the maximum  of  the  standard
range)  because  he  found  that Blakely  acted  with  deliberate
cruelty   a  statutory aggravating factor.33  Reviewing  Blakelys
sentence, the Supreme Court concluded that the statutory  maximum
for  Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.34  In other words, the Court held, the
relevant  statutory maximum is not the maximum sentence  a  judge
may impose after finding additional facts, but the maximum he may
impose  without any additional findings.35  The Court  held  that
because  Blakelys  sentence  exceeded the  presumptive  sentence,
absent  a  jury  finding  of  the  enhancing  factor  under   the
reasonable  doubt  standard,  the  sentence  violated  the  Sixth
Amendment right to a jury trial.36  The Court made it clear  that
prior convictions and facts admitted by the defendant do not fall
within the requirements of Apprendi and Blakely.37
          The  question  facing state courts after  Apprendi  and
Blakely  was  whether  the Supreme Courts interpretation  of  the
Federal  Constitution  in  those  cases  should  be  given   full
retroactivity by a state reviewing its own criminal  convictions.
One  part of that question was whether the issue of retroactivity
should  be decided by applying an individual states retroactivity
standard or the federal retroactivity standard set out in  Teague
v.  Lane.38   That issue was squarely presented to the  Court  in
Danforth v. Minnesota.39
          The  Court  in  Danforth  v. Minnesota  summarized  the
Teague rule as follows:
          New  constitutional rules announced  by  this
          Court  that  place certain kinds  of  primary
          individual  conduct beyond the power  of  the
          States  to  proscribe, as well  as  watershed
          rules  of criminal procedure, must be applied
          in  all  future trials, all cases pending  on
          direct  review, and all federal habeas corpus
          proceedings.  All other new rules of criminal
          procedure  must be applied in  future  trials
          and  in  cases pending on direct review,  but
          may  not  provide  the basis  for  a  federal
          collateral    attack   on    a    state-court
          conviction.[40]
Thus,  under  Teague, to use the terms we identified in  footnote
eighteen,  limited retroactivity must be given  as  a  matter  of
course to new constitutional rules announced by the United States
Supreme Court.  In other words, when a new ruling is announced by
the  United States Supreme Court it must be applied to  any  case
still  pending  on  direct review in the state  system.   Because
neither of the cases before us was still pending on direct review
in  the  state system when Blakely was decided, the  question  in
these  cases is whether full retroactivity should be afforded  to
the   Blakely  ruling.   Under  the  Teague  standard  for   full
retroactivity,  full retroactivity would be required  if  Blakely
was  a  ruling  that placed a certain kind of primary  individual
conduct beyond the power of the states to proscribe or if it  was
a  watershed  rule  of criminal procedure.   Until  Danforth  was
decided,  it  was  an open question whether a state  court  could
grant  full  retroactive effect to a United States Supreme  Court
ruling   in  cases  in  which  the  Teague  standard   for   full
retroactivity was not met.  That issue was decided by  the  Court
in Danforth.
     C.   Danforth and the Applicable Test for Full Retroactivity
          The Supreme Court introduced the retroactivity issue in
Danforth as follows: The question in this case is whether  Teague
constrains  the authority of state courts to give broader  effect
to  new  rules  of  criminal procedure than is required  by  that
opinion.  We have never suggested that it does, and now hold that
it  does  not.41  The Court stated that [s]tates are  independent
sovereigns with plenary authority to make and enforce  their  own
laws  as  long  as they do not infringe on federal constitutional
guarantees.42  A state is thereby free to give its  citizens  the
benefit of [the Courts] rule in any fashion that does not  offend
federal  law.43   Danforth clarified that it  is  acceptable  for
states to give broader protection to defendants by applying state
retroactivity  law  in state post-conviction proceedings.44   The
Court  held  in  Danforth that Teague does not impose  a  binding
obligation on state courts and that a state court, when reviewing
its own state criminal convictions, [may] provide a remedy for  a
violation that is deemed nonretroactive under Teague.45
          Danforth therefore allows us to apply either the Teague
test  for  full retroactivity or a state constitutional  test  so
long  as  the  state  test is at least as  comprehensive  as  the
federal  test.  The Alaska Court of Appeals determined  that  the
three-factor test used in Judd v. State46 should be employed.  In
Judd  we identified three criteria which guide resolution of  the
question of the retroactivity of a new ruling:   (a) the  purpose
to be served by the new standards; (b) the extent of the reliance
by  law enforcement authorities on the old standards; and (c) the
          effect on the administration of justice of a retroactive
application of the new standards.47



          We  borrowed  these  standards from those  the  Supreme
Court discussed in Linkletter v. Walker.48  They were designed to
answer the question whether the Courts decision in Mapp v. Ohio49
requiring  that  state  courts exclude unconstitutionally  seized
evidence   would  apply  to  state  convictions  that   were   on
collateral review.50  The Linkletter Court in applying the three-
factor  test decided that Mapp should not be applied to cases  on
collateral review.51
          Subsequently, in Williams v. United States the  Supreme
Court  applied  the  Linkletter standards to  a  case  on  direct
review.52   Justice Harlan dissented from the Williams  decision,
noting  that  he  had come to regret the Linkletter  decision  in
which  he  had joined.53  In his view new constitutional  rulings
should as a matter of course be applied to state cases which  are
still  pending on direct review when a new ruling is announced.54
Justice Harlan decried the practice of prospective overruling  as
both  inequitable  to litigants who should  benefit  from  a  new
ruling  and  inconsistent with the role  of  a  reviewing  court:
Simply  fishing  one  case from the stream of  appellate  review,
using   it  as  a  vehicle  for  pronouncing  new  constitutional
standards,  and  then  permitting  a  stream  of  similar   cases
subsequently  to flow by unaffected by that new rule  constitutes
an  indefensible departure from this model of judicial  review.55
Justice Harlan also concluded that the Linkletter standards  were
inappropriate  for  determining whether a new  ruling  should  be
applied to cases on collateral review and suggested instead  that
retroactive  application in such cases should be limited  to  new
substantive  due process rulings and for claims of  nonobservance
of  .  .  . procedures that . . . are implicit in the concept  of
ordered  liberty. 56  Justice Marshall joined in Justice  Harlans
dissent in Williams with respect to cases on direct review.57  As
to  cases  on  collateral review, Justice  Marshall  was  of  the
opinion that the Linkletter standards were appropriate.  He wrote
that
          [t]he  method commends itself, once the point
          of finality after direct review is passed, as
          a careful and appropriate way of adjudicating
          the procedural rights of litigants in view of
          the purposes of a new decisional rule and the
          concerns  of  effective law enforcement.   In
          particular,  if the purposes of  a  new  rule
          implicate      decisively      the      basic
          truth-determining function  of  the  criminal
          trial,  then  I  believe the rule  should  be
          given  full retroactive application, for  the
          required   constitutional  procedure   itself
          would then stand as a concrete embodiment  of
          the concept of ordered liberty.[58]
          Use  of  the Linkletter standards for cases  on  direct
          review did not long survive in the United States Supreme Court.
In  United  States v. Johnson, the Court adopted Justice  Harlans
view,  save for cases where the new ruling was said to be a clear
break  with the past.59  Thus, a clear break rule was not  to  be
applied retroactively to cases on direct review.  In Griffith  v.
Kentucky the Court decided that the clear break exception was not
tenable  and  held  that a new rule for the conduct  of  criminal
prosecutions  is to be applied retroactively to all cases,  state
or  federal, pending on direct review or not yet final,  with  no
exception  for  cases in which the new rule constitutes  a  clear
break  with the past.60  Griffith, however, left undisturbed  the
application  of  the  Linkletter standards to  cases  pending  on
collateral review.  Two years after Griffith, Teague decided that
question  and  overruled the use of the Linkletter standards  for
cases on collateral review in favor of the approach advocated  by
Justice Harlan in his dissent in Williams.61
          In  light of the force of Justice Harlans rationale, it
may  be  difficult  to  defend  the use  of  the  Linkletter/Judd
standards  in  cases involving direct review on the state  level.
No  party argues that any standard other than those discussed  in
Teague  and  Judd  should be applied here on  collateral  review.
Absent  meaningful argument on the issue, we decline to  consider
whether to apply some other standard in these cases.
          Using Judd as the test for full retroactivity, we  must
first determine whether the disputed cases announced a new rule.62
If so, we then examine the purpose of the new rule and, depending
on  that  purpose,  balance multiple factors  to  determine  full
retroactivity.63   By  contrast, Teague only  treats  two  narrow
categories  of rules as retroactive: (1) those that render  types
of  conduct beyond the power of the criminal law-making authority
to   proscribe  and  (2)  watershed  rules  that  implicate   the
fundamental  fairness  of the trial.64   The  Supreme  Court  has
applied exceptionally few rules retroactively under Teague.65
          To  confirm  that Judd is no less protective  than  the
federal  standard,  and  that  it can  therefore  be  applied  to
determine  full  retroactivity of Blakely,  we  consider  whether
Blakely  would be fully retroactive under Teague.  To do  so,  we
look  to  how the federal courts have applied Teague to  Blakely.
So  long as Judd at least meets the federal standard, it does not
offend  federal law.66  That is, if Blakely would  not  be  fully
retroactive  under Teague, we can proceed to determining  whether
Blakely is fully retroactive under state law.
          The  federal  courts  of appeals  that  have  carefully
considered  the issue have concluded that Blakely  is  not  fully
retroactive under Teague.67  These courts have held that  Blakely
announced  a new procedural rule, that this rule does  not  place
certain  kinds  of conduct beyond the power of the criminal  law-
making authority to prohibit, and that Blakely did not announce a
watershed  rule  of criminal procedure.68  State courts  applying
Teague  have  reached the same conclusion.69  Because  Smart  and
Douglas  could  not  succeed  on a Blakely  challenge  under  the
federal  retroactivity  standard,  we  conclude  that  our  state
standard is no less protective than the federal standard.70
     D.   Is  Blakely  a  New  Rule or Was It  Compelled  by  the
     Holding in Apprendi?
          
          Under  Alaska  law,  as a preliminary  matter  we  must
decide  whether  Blakely announced a new rule or  was  instead  a
compelled application of then-existing precedent.71  We only apply
the Judd retroactivity balancing analysis if there is a new rule.
Smart argues that Blakely did not announce a new rule because  it
was  compelled by the Supreme Courts earlier holding in Apprendi.
This  issue is critical to Smart because his case had not  become
final when Apprendi was decided on June 26, 2000.72
          In  Teague Justice OConnor, who wrote the lead opinion,
stated that in general . . . a case announces a new rule when  it
breaks  new  ground  or, in other words, if the  result  was  not
dictated  by  precedent  existing  at  the  time  the  defendants
conviction became final.73  Justice OConnor noted that it is often
difficult to determine when a case announces a new rule, and  she
declined to define the spectrum of what may or may not constitute
a  new  rule  for  retroactivity purposes.74  The  Supreme  Court
recently  revisited  the question of how to determine  whether  a
case   creates  a  new  rule.   In  Beard  v.  Banks,  the  Court
instructed: We must . . . ask whether the rule later announced  .
.  .  was dictated by then-existing precedent  whether, that  is,
the   unlawfulness  of  [the]  conviction  was  apparent  to  all
reasonable jurists. 75
          The  Alaska Court of Appeals did not address this issue
before  analyzing retroactivity in its opinion in Smart, but  all
three  members of the court agreed that Blakely announced  a  new
rule.76   Although Blakely  relied on Apprendi, it  fundamentally
changed  courts  understanding of  maximum  sentence.77   Blakely
defined  the  maximum sentence not as the maximum  allowed  by  a
presumptive sentencing scheme, but as the maximum allowed by  the
jurys verdict.78  Before Blakely was decided, courts consistently
held  that  Apprendi  did  not  apply  to  sentences  within  the
statutory maximum.79  The rule in Blakely was clearly not apparent
to all courts and was not dictated by precedent.80
          We  consequently conclude that Blakely announced a  new
rule of law and that it therefore does not automatically apply on
collateral review.  We must apply Alaskas full retroactivity test
to determine whether this new rule applies retroactively to Smart
and Douglas.
     E.   Is Blakely Fully Retroactive Under  Judd?
          The  full  retroactivity standard adopted  in  Judd  v.
State requires us to consider three factors when deciding whether
to apply a new constitutional rule retroactively: (1) the purpose
to be served by the new standards; (2) the extent of the reliance
by  law enforcement authorities on the old standards; and (3) the
effect   on  the  administration  of  justice  of  a  retroactive
application of the new standards.81
          1.   The purpose of the rule announced in Blakely
          The purpose of the Blakely rule is to guarantee that  a
jury finds beyond a reasonable doubt the facts that determine the
maximum  sentence.   The Supreme Court explained  that  [w]hen  a
judge  inflicts punishment that the jurys verdict alone does  not
allow,  the jury has not found all the facts which the law  makes
          essential to the punishment, and the judge exceeds his proper
authority.82  A violation of Blakely does not call into  question
the  guilt  of  the  defendant, but  it  undermines  the  factual
foundation  of  the  sentencing courts  authority  to  impose  an
increased punishment.83
          Applying  the  Judd  standard,  the  court  of  appeals
concluded  that  Blakely should be applied fully retroactively.84
The  court  parsed the two elements of Apprendi: the right  to  a
jury,  and  the  right  to demand that the government  prove  the
disputed issue of fact beyond a reasonable doubt.85  Focusing  on
the  requirement of proof beyond a reasonable doubt,86 the  court
concluded  that the  reasonable doubt component of  Apprendi  and
Blakely  is  the  type  of rule . . . whose  primary  purpose  is
related to the integrity of the verdict, and whose function is to
cure  a flaw that raises serious questions about the accuracy  of
guilty verdicts. 87
          The court relied on our opinion in Rutherford v. State,
which quoted from Justice Whites plurality opinion in Williams v.
United  States88:  Where the major purpose of new  constitutional
doctrine  is  to overcome an aspect of the criminal  trial  which
substantially  impairs its truth-finding function and  so  raises
serious  questions about the accuracy of guilty verdicts in  past
trials,  the  new  rule  [is  to be] given  complete  retroactive
effect.89   The court of appeals also relied on our statement  in
Rutherford  that the first Judd factor (purpose)  will  supersede
other  considerations whenever the purpose of  the  new  rule  is
primarily  related  to the integrity of the  verdict.90   Because
[t]he Blakely requirement of proof beyond a reasonable doubt is .
. . designed to prevent unconstitutional punishment, the court of
appeals concluded that full retroactivity should be granted  even
if  the other two parts of the Alaska retroactivity test  .  .  .
would militate against retroactive application.91
          The  Rutherford  language relied on  by  the  court  of
appeals in holding that the first factor was determinative sets a
high   standard.   That  standard  ensures  that  only  the  most
exceptional new rules are not subject to the three-part balancing
test.   The  new  rule must raise[] serious questions  about  the
accuracy  of  previous verdicts and overcome  an  aspect  of  the
criminal  trial which  substantially impair[ed] its truth-finding
function.92  We stated in Rutherford that where the purpose of the
new  rule  is primarily related to the integrity of the  verdict,
the  new  rule is generally applied to all cases.93  But we  also
recognized  that  where  the  purpose  of  a  new  constitutional
standard is not to minimize arbitrary or unreliable fact findings
.  .  . retroactive application has generally been denied.94   We
acknowledged  that [d]ifficult analytical problems  arise  [that]
necessitate  reference  to the other two criteria,  because  with
many  new  constitutional  doctrines, (t)he  extent  to  which  a
condemned practice infects the integrity of the truth-determining
process at trial is a question of probabilities.95  In Rutherford
we gave limited retroactive effect to the speedy trial right, but
we did so only after weighing all three Judd factors.96
          Here  we must decide whether to balance the three  Judd
factors, as we did in Rutherford, or whether Blakelys purpose  is
          so closely related to the accuracy of guilty verdicts that it
supersedes  the other factors.  The proper comparisons  here  are
(1)  between  judge and jury as fact-finder, and (2) between  the
clear  and  convincing  proof standard and  the  proof  beyond  a
reasonable doubt standard.  The Rutherford standard asks  whether
permitting a judge to find facts under a lower standard of  proof
substantially   impairs   [the  criminal  trials]   truth-finding
function  and  raises  serious questions about  the  accuracy  of
guilty  verdicts in past trials.97  If the answer is yes, Blakely
must be given retroactive effect regardless of the outcome of the
other  two  factors.  If not, all three factors must be  weighed.
This  question turns on that question of probabilities98: whether
the  likelihood of accurate verdicts is seriously  diminished  if
the  requirements of Blakely  both the right to a  jury  and  the
standard of proof  are not met.
          Jury  Trial.     The  Supreme  Court,  in  Schriro   v.
Summerlin,  has already resolved the first comparison   judge  to
jury  by holding that judicial fact-finding, instead of jury fact-
finding, does not  so seriously diminish[] accuracy as to produce
an  impermissibly large risk of injustice.99  We think the Courts
analysis is persuasive on this point.  In Summerlin, decided  the
same  day  as  Blakely and written by the author  of  the  Courts
opinion  in  Blakely,  the  Court  determined  that  a  new  rule
requiring  that aggravating factors be proved to  a  jury  rather
than  a judge was procedural, not substantive, and concluded that
the  rule does not apply retroactively to cases already final  on
direct review.100  There an Arizona statute authorized the  death
penalty if a judge found certain aggravating factors.101  The Court
noted that this judicial fact-finding violated Apprendi.102   But
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.103   The  Court  held  that the  rule  that  a  jury  find
aggravating factors does not apply retroactively to cases already
final on direct review.104  We think it is highly likely that the
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 during  sentencing
such that this factor must supersede the other considerations  of
our Judd test.
          Standard  of  Proof.   The more difficult  question  is
whether  finding  an  aggravator under the clear  and  convincing
standard  instead of Blakelys reasonable doubt standard seriously
diminishes the likelihood of accurate fact-finding for sentences.
We  conclude that failure to fully retroactively impose  Blakelys
requirement that aggravators be found under the reasonable  doubt
standard does not impair truth-finding so substantially that  the
factors in Judd need not be weighed.
          To   begin,   we  review  some  of  the  constitutional
          principles that do impact truth-finding so substantially that the
importance  of their purposes precludes balancing other  factors.
Rutherford  listed cases in which this standard was  applied  and
the purpose of the new rule was held to be outcome-determinative.
For  example,  the Supreme Court held that the right  to  counsel
applied retroactively because the denial of the right must almost
invariably  deny a fair trial. 105  The Court reasoned  that  the
assistance  of  counsel was necessary for marshaling  the  facts,
introducing evidence of mitigating circumstances and  in  general
aiding and assisting the defendant to present his case106 and that
only  the aid of counsel could . . . enable[] the accused to know
all  the  defenses available . . . and to plead intelligently.107
Likewise  the  Court  held that the right to  confront  witnesses
significantly affected the integrity of the fact-finding  process
and  therefore applied retroactively because one of the important
objects of the right of confrontation [is] to guarantee that  the
fact   finder  ha[s]  an  adequate  opportunity  to  assess   the
credibility of witnesses.108
          Both  the  right to counsel and the right  to  confront
witnesses  are central to a fair and accurate trial.109   Without
counsel, an indigent defendant would be severely disadvantaged at
all  stages  of  the  process.  Without  the  right  to  confront
witnesses,  the fact-finder may not be able to fairly assess  the
accuracy  of  the facts on which the case is decided.   The  rule
announced  in Blakely does not have as substantial an  impact  on
the truth-finding function of a criminal trial.
          The  court  of  appeals relied heavily on  the  Supreme
Courts  discussion  of the reasonable doubt  standard  in  In  re
Winship.110  The Court there held that the Due Process Clause  of
the  Fourteenth Amendment requires that every fact  necessary  to
constitute  a crime be proved beyond a reasonable doubt.111   The
Court  stated  that the reasonable doubt standard plays  a  vital
role in the American scheme of criminal procedure and that it  is
indispensable.112  The Court later held that the rule announced in
Winship must be given retroactive effect.113  But Winship focused
only   on  the  adjudicatory  phase  of  the  trial;  the   Court
specifically noted that it did not direct [its] attention to  the
post-adjudicative or dispositional process.114
          Not  every rule involving the reasonable doubt standard
is  as important as the rule announced in Winship.115  In a  case
holding  that  Apprendi  did not apply retroactively,  the  Ninth
Circuit Court of Appeals reasoned that [t]he rule[] announced  in
Winship. . . [was] given retroactive effect because [it  was]  to
overcome  an  aspect  of  the criminal trial  that  substantially
impairs   its  truth-finding  function  and  so  raises   serious
questions  about  the  accuracy of  guilty  verdicts[.]  116   In
contrast,  and like the rule in Apprendi, the rule  announced  in
Blakely  affects the enhancement of a defendants  sentence  after
guilt  is  found beyond a reasonable doubt.  Put another  way,  a
defendant sentenced in violation of Blakely cannot complain  that
his  entire  conviction  is tainted, only that  the  fact-finding
underlying an aggravating sentencing factor might not  have  been
accurate   a  complaint  that, given  the  heightened  clear  and
convincing  standard applied by judges before Blakely,  does  not
          raise serious questions about the accuracy of the sentence.
          That a Blakely violation does not rise to the level  of
substantially  impairing  the  truth-finding  function   of   the
criminal  trial  is also demonstrated by its remedy.   A  Blakely
violation requires remand for resentencing.  It does not  require
a  new trial or vacating the conviction.117  We think the Supreme
Court of Minnesota stated this point well in its consideration of
Blakely:  We  are  hard-pressed to see  how  a  rule  that,  when
violated,  merely requires re-sentencing can be said  to  be  one
without  which  the  likelihood  of  an  accurate  conviction  is
seriously diminished.118
          Because  the  standard-of-proof aspect  of  Blakely  is
dictated by the Federal Constitution, we also look to the federal
courts  for guidance.  We find their logic persuasive even though
the   federal   courts  apply  a  different  standard   of   full
retroactivity.   Every court of appeals that has dealt  with  the
issue,  whether  calling it the Blakely  or  Apprendi  rule,  has
concluded that the rule is procedural.119
          A  new  procedural rule is only given fully retroactive
effect under the federal standard if it is a  watershed rule[] of
criminal  procedure  implicating  the  fundamental  fairness  and
accuracy of the criminal proceeding.120  The procedural rule must
be  one without which the likelihood of an accurate conviction is
seriously diminished.121  If the beyond a reasonable doubt standard
is  a rule without which the likelihood of accurate sentences  is
seriously diminished, one would expect the federal courts to  say
so.   To  the contrary, every federal court of appeals which  has
addressed  Apprendi has held that it did not create  a  watershed
rule  of  criminal  procedure.122  One federal court  of  appeals
recognized  that the reasonable doubt standard rule will  promote
marginally more accurate results but held that the rule  did  not
alter our understanding of the bedrock elements essential to  the
fairness  of  a proceeding such that it seriously diminishes  the
accuracy of guilty verdicts.123  The courts addressing Blakely have
likewise  held  that Blakely did not create a watershed  rule  of
criminal procedure.124  The logical conclusion to be derived from
their   treatment  of  Apprendi  and  Blakely  is  that  Blakelys
reasonable  doubt  requirement is not a  watershed  rule  or  one
without which the likelihood of an accurate sentence is seriously
diminished.
          We  conclude  that Blakely announced a procedural  rule
that  does  not  raise  serious questions about  the  fundamental
fairness  and  accuracy of our criminal trials.   The  clear  and
convincing  standard  applied  to  Douglas  and  Smart  did   not
seriously  diminish the accuracy of fact-finding when  they  were
sentenced.   The  purpose of Blakely is to ensure  constitutional
sentences   punishment matching the facts found by the  jury   by
requiring that aggravating factors be proved to a jury  beyond  a
reasonable doubt.  The right to jury findings and proof beyond  a
reasonable  doubt  is  fundamental  in  our  system  of  criminal
procedure.   But  because the purpose of the  rule  announced  in
Blakely   is   not,   under  Rutherford,   conclusive   of   full
retroactivity, we must balance all three of the Judd factors.
          2.   The extent of reliance on the pre-Blakely rule
          Although the court of appealss decision did not balance
the  three factors of the Judd test, it nonetheless discussed the
second  and  third factors.125  The court stated that the  second
factor  extent of reliance  favored non-retroactivity because the
state   relied  for  more  than  two  decades  on  the   presumed
constitutionality of the sentencing procedures . . . for  proving
the  aggravating  factors  that increased  a  defendants  maximum
sentence under Alaskas presumptive sentencing law.126
          The  state points out that the court of appeals  upheld
judicial  fact-finding over twenty years ago  and  asserts  that,
before  Blakely  was  published, hundreds, if  not  thousands  of
appellate opinions were issued without questioning this  rule.127
After   Apprendi,  the  state  argues,  Alaska  appellate  courts
continued to hold that presumptive sentencing was not affected by
Apprendi.128  The state correctly points out that Judds reasonable-
reliance  factor does not require state officials to predict  the
outcomes  of 5-4 Supreme Court splits in evolving lines  of  case
law.129   Because the reliance on the pre-Blakely  standards  was
reasonable  and  consistent for over twenty  years,  this  factor
militates against full retroactivity.
          3.   The  effect  on the administration of  justice  of
               applying Blakely retroactively
               
            The  court of appeals concluded that the third factor
the  effect  on  the administration of justice of  a  retroactive
application of Blakely  favored retroactivity.130  The court noted
that  many  of the defendants who were sentenced in violation  of
Blakely  have  completed their sentences and stated  that  giving
full retroactivity to Blakely would not affect the administration
of justice in those cases.131  The court then estimated that there
were  a  few  hundred  cases that might be affected  by  Blakely,
basing  this  estimate  on  the  Appellate  Court  Clerks  Office
statement  that slightly over 250 Blakely appeals [are] currently
stayed  and awaiting our decision of this retroactivity issue.132
But  based on the Blakely cases it had already decided, the court
of appeals concluded that only a few defendants would be entitled
to relief.133  The court concluded that there would be a relatively
small  impact on the criminal justice system and that this factor
favored retroactivity.134
          Judd asks what effect retroactive application will have
on  the administration of justice, not how many appeals might  be
successful.   Full  retroactive application  thus  looks  at  the
entire  number of retroactivity claims that will be  brought  and
asks  how  those cases will affect the administration of justice.
Review  of even 250 cases would take up a great amount  of  court
and  staff  time and it seems certain that there may be  hundreds
more  cases  that  have not yet been brought back  to  the  trial
courts.  We agree with the observations of Chief Judge Coats, who
stated  in  dissent  that [d]efendants who  conceded  aggravating
factors  .  . . can claim that they would not have conceded  [the
factor] had they known they were entitled to a jury trial.135  If a
defendants  sentence is overturned, more time will be  spent  re-
litigating  aggravating  factors.   Prosecutors  will   have   to
reevaluate whether to bring the charges, old witnesses will  have
          to be found, juries may have to be empaneled, court time will be
spent relitigating, defense attorney and prosecutor time will  be
spent  relitigating, and Department of Corrections time  will  be
spent  transporting convicted defendants to  the  courtroom.   We
think  Chief  Judge  Coats  correctly summarized  the  result  as
follows:  By making Blakely retroactive, we are not advancing  an
important  constitutional principle.  We  are  creating  a  major
administrative  problem.   Whether a  person  gets  his  sentence
reduced may turn more on good fortune than anything else.136   We
conclude   that   the   burden   factor   weighs   against   full
retroactivity.
          4.   Conclusion:  no full retroactivity
          Weighing  all  three  factors of the  Judd  test  is  a
difficult  exercise.   It is clear that many defendants  received
sentences that are inconsistent with Blakely, because aggravating
factors were not proved to a jury beyond a reasonable doubt.  But
defendants   sentenced  before  Blakely  were  not  deprived   of
procedural safeguards.  The aggravating factors had to be  proved
by  the  elevated clear and convincing evidence standard.   There
is,  as the Supreme Court stated in Summerlin, no reason to think
judges  are  less  accurate  than  juries  in  finding  facts.137
Furthermore, all actors in the criminal justice system relied  on
the  old  standard for over twenty years with no warning that  it
was  unconstitutional.  The sentencing guidelines provided notice
to the defendants of the consequences of their acts and helped to
ensure  equal  protection by providing uniformity.  Finally,  the
administrative  burden of full retroactive application  would  be
overwhelming and would severely impact current criminal procedure
by  affecting  the time all participants in the criminal  justice
system  have  available  to  spend  on  current  trials.    After
considering  the  purpose  of the procedural  rule  announced  in
Blakely, the reliance on the pre-Blakely rule, and the burden  of
full retroactive application of Blakely, we conclude that Blakely
does  not  merit  full  retroactive application  under  the  Judd
standard.
     F.   Other Issues
          The  parties and the amicus raise other related issues:
whether we should adopt Blakely as a matter of state law; whether
a  Blakely  claim is properly brought under Alaska Criminal  Rule
35(a)  or Criminal Rule 35.1; and whether post-conviction  relief
actions  are  governed  by  the  retroactivity  standard  in   AS
12.72.010.  We briefly address each of these issues in turn.
          1.   Should we adopt Blakely under Alaska law?
          Smart,  Douglas, and the amicus argue  that  we  should
adopt  the  Blakely reasoning as a matter of state law under  the
Alaska  Constitutions due process and right to  a  jury  clauses.
Even  if we were to adopt Blakely as a matter of state law,  Judd
would   govern  full  retroactivity.   The  new  standard   would
consequently not apply to Smart and Douglas.  It is therefore not
necessary to decide the issue here.
          2.   Are  Blakely  challenges  properly  brought  under
               Alaska Criminal Rule 35(a)?
               
          The  state argues that a Blakely challenge is  a  claim
          that the manner or procedure of imposing the sentence was
illegal,  not  that the sentence itself was illegal.   The  state
points  out  that  the term illegal sentence  has  been  narrowly
construed  and argues that Rule 35(a) does not permit  challenges
to  sentences  that  were imposed through  procedures  that  were
legally defective.138  The state concludes that a Blakely challenge
can only be brought under Rule 35.1.139
          Smart  and Douglas assert that Rule 35(a) is the proper
means  to  bring  a  Blakely challenge.  They  argue  that  their
sentences  are  illegal  because  each  exceeded  the  prescribed
statutory  maximum and were not authorized by either judgment  of
conviction.
             We  do  not  have  to  decide  the  issue.   Because
Blakely  is not fully retroactive, neither the sentences nor  the
procedures used to impose the sentences were illegal.
          3.   Are post-conviction relief actions governed by the
               retroactivity  standard in AS 12.72.010  and  Rule
               35.1?
               
          The  state argues that if a Blakely challenge  must  be
brought  under Rule 35.1,  both Rule 35.1 and AS 12.72.010  adopt
the Teague standard to determine whether Blakely is retroactive.140
Because we hold that Blakely is not fully retroactive, we do  not
reach this issue and express no opinion about it.141
IV.  CONCLUSION
          Applying  Alaskas standard first announced in  Judd  to
the  present question of full retroactivity, we hold that Blakely
is  not  retroactive as to defendants whose sentences were  final
when  Blakely was decided on June 24, 2004.  We therefore REVERSE
the  holdings  of  the court of appeals in  Smart  v.  State  and
Douglas v. State and REMAND for proceedings consistent with  this
opinion.
_______________________________
     1    Blakely v. Washington, 542 U.S. 296 (2004).

     2     Smart  v. State, Mem. Op. & J. No. 4653 at  1  (Alaska
App., January 15, 2003); see former AS 12.55.125(d)(1).

     3     Id. at 1.  The court found the aggravating factor  set
out  in AS 12.55.155(c)(13) (the defendant knowingly directed the
conduct  constituting  the offense at an active  officer  of  the
court  or  at  an active or former judicial officer,  prosecuting
attorney,  law  enforcement officer, correctional employee,  fire
fighter,   emergency  medical  technician,  paramedic,  ambulance
attendant, or other emergency responder during or because of  the
exercise of official duties).

     4    Id.

     5    Former AS 12.55.125(c)(3).

     6     The judge found the following aggravating factors  set
out  in AS 12.55.155(c): (3) (leader of a group of three or  more
persons who participated in the offense), (6) (conduct created  a
risk  of imminent physical injury to three or more persons, other
than  accomplices), (14) (member of organized group  of  five  or
more  persons,  and  the  offense was committed  to  further  the
criminal  objectives of the group), and (22) (knowingly  directed
the  conduct . . . at a victim because of that persons race, sex,
color,  creed,  physical  or  mental  disability,  ancestry,   or
national origin).

     7     Court of Appeals Case No. A-7528; see also Douglas  v.
State, Mem. Op. & J. No. 5155 (Alaska App., December 20, 2006).

     8    Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000).

     9    Blakely v. Washington, 542 U.S. 296, 305 (2004).

     10    Id.

     11    Judd v. State, 482 P.2d 273 (Alaska 1971).

     12     Teague  v. Lane, 489 U.S. 288 (1989).  Teague  was  a
plurality  opinion  that  has  subsequently  been  adopted  by  a
majority  of  the Court.  See, e.g., Danforth v.  Minnesota,  552
U.S.  __,  128 S. Ct. 1029 (2008); Saffle v. Parks, 494 U.S.  484
(1990).

     13    Smart v. State, 146 P.3d 15, 29 (Alaska App. 2006).

     14    Id. at 38.

     15    Id. at 38-39.

     16    Douglas v. State, Mem. Op. & J. No. 5155 (Alaska App.,
December 20, 2006).

     17     Grinols v. State, 74 P.3d 889, 891 (Alaska 2003)  (We
interpret   the   Alaska  Constitution  using   our   independent
judgment.);  Todd  v.  State, 917 P.2d  674,  677  (Alaska  1996)
(applying   independent  judgment  standard  to  issue  involving
questions of federal and state constitutional law).

     18     Applying  a new constitutional principle to  criminal
cases   on   collateral   review   gives   the   principle   full
retroactivity.  See, e.g., Yerrington v. Anchorage, 675 P.2d 649,
651   (Alaska   App.   1983)  (defining  full  retroactivity   as
application [of new rules] to final decisions challenged in post-
conviction   relief  proceedings  as  well  as  pending   cases).
Applying a  new principle to cases on direct review, to cases  at
the  trial level, to any case not yet charged, and to crimes  not
yet  committed  gives the principle limited  retroactivity.   Id.
(stating  that  new rules that did not meet the requirements  for
full  retroactivity  would  be given  limited  retroactivity  and
applied   to  cases  then  pending  on  appeal).   We  use   this
terminology in this opinion.

     19    Apprendi, 530 U.S. at 490.

     20    Id. at 469-70.

     21    Id. at 470.

     22    Id.

     23    Id.

     24    Id. at 471.

     25    Id.

     26    Id. at 468-69.

     27    Id. at 474.

     28    Id. at 490.

     29    Id. at 472, 497.

     30    Blakely v. Washington, 542 U.S. 296, 298 (2004).

     31    Id. at 299.

     32    Id.

     33    Id. at 300.

     34    Id. at 303 (emphasis in original).

     35    Id. at 303-04 (emphasis in original).

     36    Id. at 305.

     37    Id. at 301, 303.

     38     Teague  v.  Lane,  489  U.S.  288  (1989)  (plurality
opinion).

     39     Danforth v. Minnesota, 552 U.S. __, 128 S.  Ct.  1029
(2008).

     40    Id. at 1032.

     41     Id.  at  1031.  This holding makes it unnecessary  to
consider  whether  Teague is binding on state courts.   Only  the
states  reply brief was filed after Danforth.  The opening briefs
of  the state, Douglas, and Smart anticipated that Danforth, when
published,  would control which standard applies to these  cases.
The   state  argues  that   Teague  is  binding  in  state  court
collateral proceedings deciding the retroactivity of a  new  rule
based  on  the Federal Constitution.  The respondents argue  that
Teague  is  only  binding on federal courts in a  federal  habeas
corpus collateral proceeding, and is not binding on state courts.
Danforths ruling renders this dispute moot.

     42    Id. at 1041.

     43    Id.

     44    Id. at 1046.

     45    Id. at 1042.

     46    Judd v. State, 482 P.2d 273 (Alaska 1971).

     47    Id. at 278.

     48    Linkletter v. Walker, 381 U.S. 618 (1965).

     49    Mapp v. Ohio, 367 U.S. 643 (1961).

     50    Linkletter, 381 U.S. at 622.  The Court noted that Mapp
had  been applied to cases still pending on direct review at  the
time it was decided.  Id.

     51    Id. at 640.

     52    Williams v. United States, 401 U.S. 646, 651-52 (1971).

     53    Williams v. United States, 401 U.S. 667, 676 (1971).

     54    Id. at 679.

     55    Id.

     56    Id. at 693 (quoting Palko v. Connecticut, 302 U.S. 319
(1937)).

     57    Id. at 665.

     58    Id. at 666.

     59    United States v. Johnson, 457 U.S. 537 (1982).

     60    Griffith v. Kentucky, 479 U.S. 314 (1987).

     61     Teague  v. Lane, 489 U.S. 288, 292 (1989)  (plurality
opinion).

     62     We  use  rule  in this context to mean  a  judicially
adopted  principle of law, not a court procedural  rule.   Blacks
Law  Dictionary  generally defines rule  as  an  established  and
authoritative standard or principle, and the rule of law as [t]he
doctrine that general constitutional principles are the result of
judicial  decisions determining the rights of private individuals
in  the courts.  Blacks Law Dictionary 1357, 1359 (8th ed. 2004).
Justice Stevens explained in Danforth that a new rule  the result
of  a  case  not  dictated by precedent  is not a  rule  of  [the
Courts]  devising or the product of [its] own views  about  sound
policy.   Danforth, 128 S. Ct. at 1035.  [T]he source  of  a  new
rule is the Constitution itself, not any judicial power to create
new  rules  of  law,  and,  according  to  Justice  Stevens,  the
underlying right necessarily pre-exists [the Courts] articulation
of the new rule.  Id.

     63     As  noted, under Judd we look at the following  three
criteria to determine questions of retroactivity: (a) the purpose
to be served by the new standards; (b) the extent of the reliance
by  law enforcement authorities on the old standards; and (c) the
effect   on  the  administration  of  justice  of  a  retroactive
application of the new standards.  Judd v. State, 482  P.2d  273,
277-78  (Alaska 1971); see also State v. Semancik, 99  P.3d  538,
543  (Alaska  2004)  (reaffirming Judd).  As  we  discuss  later,
[w]here  the  purpose  of the rule is primarily  related  to  the
integrity  of the verdict, the application thereof has  generally
extended  to all cases.  Rutherford v. State, 486 P.2d  946,  952
(Alaska 1971).  New constitutional doctrines that only marginally
or  secondarily concern the integrity of the fact-finding process
require  a careful balancing analysis of all three factors.   Id.
at 953.

     64    Teague, 489 U.S. at 311-12.

     65     See  Brian Hoffstadt, How Congress Might  Redesign  a
Leaner,  Cleaner Writ of Habeas Corpus, 49 Duke L.J. 947,  976-77
(2000) (noting that since Teague only one new rule has fit  under
the first exception and none has fit under the second exception).
The Supreme Court has stated that the second Teague exception  is
reserved  only  for  truly watershed rules .  .  .  [and]  it  is
unlikely  that any of these watershed rules ha[s] yet  to  emerge
[since  Teague].   Tyler v. Cain, 533 U.S. 656,  667  n.7  (2001)
(internal citations omitted).  The Court later stated that Gideon
v.   Wainwright,  372  U.S.  335  (1963),  qualifies  under  this
exception.  Whorton v. Bockting, 549 U.S. 406, 419 (2007).

     66     In Danforth the Court agreed with Minnesotas argument
that  it  may  grant  its citizens broader  protection  than  the
Federal Constitution requires by enacting appropriate legislation
or by judicial interpretation of its own Constitution.  Danforth,
128  S.  Ct. at 1046.  The Court stated that [s]tates  that  give
broader  retroactive effect to this Courts new rules of  criminal
procedure  do  not  do  so by misconstruing  the  federal  Teague
standard.   Rather,  they  have developed  state  law  to  govern
retroactivity in state postconviction proceedings.  Id. (emphasis
in original).

     67     United States v. Price, 400 F.3d 844, 849 (10th  Cir.
2005)  (holding  that Blakely is not retroactive  under  Teague);
Schardt  v.  Payne, 414 F.3d 1025, 1036 (9th Cir.  2005)  (same).
Other  federal courts of appeals have stated that Blakely is  not
fully retroactive but have limited their analysis to noting  that
the  Supreme Court has not yet declared Blakely retroactive. See,
e.g., Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004)
(dismissing  motion  for authorization, and  holding  that  [t]he
Supreme  Court has not made the Blakely rule applicable to  cases
on collateral review); In re Dean, 375 F.3d 1287, 1290 (11th Cir.
2004) (denying application for leave to file second or successive
motion to vacate sentence, and stating that Supreme Court had not
expressly declared Blakely retroactive).

     68     Price, 400 F.3d at 848-49; Schardt, 414 F.3d at 1035-
37.

     69    See Carmichael v. State, 927 A.2d 1172, 1179 (Me. 2007)
(applying   Teague  test  and  holding  that   Blakely   is   not
retroactive); State v. Houston, 702 N.W.2d 268, 273 (Minn.  2005)
(same); State v. Evans, 114 P.3d 627, 633 (Wash. 2005) (same).

     70      Based on the Supreme Courts reasoning in Schriro  v.
Summerlin,  542  U.S.  348, 356 (2004),  the  federal  courts  of
appeals  treatment of Blakely as non-retroactive,  and  the  fact
that  no  case  has been found to fall within one of  the  Teague
exceptions, we think it is unlikely the Supreme Court  will  hold
that  Blakely  is  fully  retroactive.  The  Court  in  Summerlin
considered  a  claim that a new rule requiring  that  aggravating
factors resulting in the death penalty be found by a jury  was  a
watershed   rule[]   of   criminal  procedure   implicating   the
fundamental  fairness  and accuracy of the  criminal  proceeding.
Id.  at   355  (internal citations omitted).  But the Court  held
that  allowing judicial fact-finding instead of jury fact-finding
did not create an impermissibly large risk of injustice.  Id.  at
356.

     71    State v. Glass, 596 P.2d 10, 12 (Alaska 1979); see also
Wright  v.  West, 505 U.S. 277, 304 (1992); Teague v.  Lane,  489
U.S. 288, 301 (1989) (plurality opinion).

     72     Apprendi  v.  New Jersey, 530 U.S. 466,  466  (2000);
Smart v. State, Mem. Op. & J. No. 4653 (Alaska App., January  15,
2003).

     73    Teague, 489 U.S. at 301 (emphasis in original).

     74    Id.

     75     Beard v. Banks, 542 U.S. 406, 413 (2004) (emphasis in
original)  (quoting Lambix v. Singletary, 520  U.S.  518,  527-28
(1997)).

     76     See  Smart v. State, 146 P.3d 15, 40-41 (Alaska  App.
2006)  (Stewart,  J.,  concurring); id. at  41-42  (Coats,  C.J.,
dissenting); id. at 48-49 (Mannheimer, J., concurring).

     77    See Blakely v. Washington, 542 U.S. 296, 301-04 (2004).

     78    Id. at 303.

     79     See Simpson v. United States, 376 F.3d 679, 681  (7th
Cir.  2004)  (stating  that  before Blakely  was  decided,  every
federal court of appeals had held that Apprendi did not apply  to
guideline calculations made within the statutory maximum  (citing
United  States  v. Hughes, 369 F.3d 941, 947 (6th  Cir.  2004)));
United  States  v.  Francis, 367 F.3d 805, 820 (8th  Cir.  2004);
United  States v. Jardine, 364 F.3d 1200, 1209 (10th Cir.  2004);
United States v. Alvarez, 358 F.3d 1194, 1211-12 (9th Cir. 2004);
United  States  v. Phillips, 349 F.3d 138, 143  (3d  Cir.  2003);
United States v. Patterson, 348 F.3d 218, 228-29 (7th Cir. 2003);
United  States  v.  Randle, 304 F.3d 373, 378  (5th  Cir.  2002);
United  States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir.  2001);
United States v. Webb, 255 F.3d 890, 898 (D.C. Cir. 2001); United
States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001); United States
v.  Caba,  241  F.3d 98, 100 (1st Cir. 2001);  United  States  v.
Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001).

     80    The state likewise argues that Apprendis application to
presumptive  sentencing  was subject to debate  among  reasonable
jurists.  This is consistent with the views of federal courts  of
appeals considering similar arguments.  See Schardt v. Payne, 414
F.3d 1025, 1035 (9th Cir. 2005) (holding that Blakely is new rule
and  pointing  out  that [e]very circuit court  of  appeals  that
addressed the question presented in Blakely reached the  opposite
conclusion  from the rule subsequently announced by  the  Supreme
Court).   But see Carmona v. United States, 390 F.3d 200,  203  &
n.1  (2d  Cir.  2004) (declining to allow Blakely  challenge  but
suggesting  Supreme Court might decide it is not new  rule).   We
agree  with  the  states contention here,  and  therefore  reject
Smarts  argument that after Apprendi but before  Blakely  it  was
unreasonable for judges to continue finding proposed  aggravating
factors by clear and convincing evidence.

     81     Judd  v.  State, 482 P.2d 273, 277-78  (Alaska  1971)
(adopting  retroactivity test announced in Linkletter v.  Walker,
381 U.S. 618, 636-38 (1965)).

     82    Blakely, 542 U.S. at 304 (internal citation omitted).

     83    Smart v. State, 146 P.3d 15, 33 (Alaska App. 2006).

     84    Id. at 29, 38.
          
     85    Id. at 30.

     86     The court of appeals focused on the standard of proof
even  though  the  Supreme Courts focus in  Blakely  was  on  the
centrality  of  the right to a jurys decision.   In  Blakely  the
Supreme Court stated that the rule it expressed in Apprendi,

          reflects  two longstanding tenets of  common-
          law  criminal jurisprudence:  that the  truth
          of   every  accusation  against  a  defendant
          should   afterward   be  confirmed   by   the
          unanimous  suffrage of twelve of  his  equals
          and neighbours, 4 W. Blackstone, Commentaries
          on  the Laws of England 343 (1769), and  that
          an accusation which lacks any particular fact
          which   the  law  makes  essential   to   the
          punishment is . . . no accusation within  the
          requirements of the common law, and it is not
          accusation  in reason, 1 J. Bishop,  Criminal
          Procedure  87, p. 55 (2d ed. 1872).
          
Blakely,  542 U.S. at 301-02.  Furthermore, the Court  stated  in
Blakely  that its commitment to Apprendi in this context reflects
not just respect for longstanding precedent, but the need to give
intelligible  content  to the right of jury  trial,[which  is]  a
fundamental reservation of power in our constitutional structure.
Id. at 305-06.

     87    Smart, 146 P.3d at 32 (quoting Rutherford v. State, 486
P.2d 946, 952-53 (1971)).

     88    Williams v. United States, 401 U.S. 646, 653 (1971).

     89    Smart, 146 P.3d at 32.  The question in Rutherford was
whether to apply Glasgow v. State, 469 P.2d 682 (Alaska 1970), to
a  case that was still on direct review when Glasgow was decided.
Rutherford,  486  P.2d at 952.  Glasgow held  that  a  defendants
failure  to demand a speedy trial did not waive his speedy  trial
right.  Glasgow, 469 P.2d at 688-89.

     90    Smart, 146 P.3d at 32 (quoting Rutherford, 486 P.2d at
952).

     91    Id. at 33.

     92    Rutherford, 486 P.2d at 952-53.

     93    Id. at 952.
          
     94    Id. at 953.

     95    Id. (internal citation and quotations omitted).

     96    Id. at 954.

     97    Id. at 952-53.

     98    Id. at 953.

     99     Schriro  v.  Summerlin,  542  U.S.  348,  356  (2004)
(emphasis in original) (internal quotations omitted).  While  the
Court  answered this question as part of its Teague analysis,  it
applies  as  well  to  the  same question  presented  in  a  Judd
analysis.

     100     Id.  at  355-58.  Summerlin concerned the  new  rule
announced  by the Court in Ring v. Arizona, 536 U.S. 584  (2002).
Ring  applied  Apprendi  to a death sentence  imposed  under  the
Arizona sentencing scheme and concluded that the existence of  an
aggravating factor necessary to authorize the death penalty  must
be  proved to a jury rather than a judge.  Summerlin, 542 U.S. at
351 (discussing Ring).

     101    Id. at 350.

     102    Id. at 351.  In Summerlin the Court applied Teague to
determine  that  Rings  holding,  which  applied  Apprendi,   was
properly  classified as procedural and was not a  watershed  rule
implicating  the  fundamental fairness and accuracy  of  criminal
procedure.  Id. at 353-58.  Ring held that a jury must find facts
supporting aggravating factors.  Ring, 536 U.S. at 609.

     103     Summerlin,  542 U.S. at 355-56 (internal  quotations
omitted) (emphasis in original).

     104     Id.  at 358. Justice OConnor, dissenting in Blakely,
suggested  that  the  Courts conclusion in  Summerlin  held  that
Apprendi does not apply retroactively on habeas review.   Blakely
v.   Washington,   542  U.S.  296,  323  (2004)   (OConnor,   J.,
dissenting).

     105     Arsenault  v. Massachusetts, 393 U.S.  5,  6  (1968)
(quoting  Stovall v. Denno, 388 U.S. 293, 297 (1967));  see  also
McConnell v. Rhay, 393 U.S. 2, 3 (1968).

     106    McConnell, 393 U.S. at 4.

     107    Arsenault, 393 U.S. at 6.

     108    Berger v. California, 393 U.S. 314, 315 (1969) (quoting
Barber  v.  Page, 390 U.S. 719, 721 (1968)); see also Roberts  v.
Russell, 392 U.S. 293 (1968).

     109    This is not to say that any new rule interpreting the
confrontation clause or the right to counsel necessarily requires
full retroactivity.  We cite these cases to demonstrate that  the
functions  of  the  right to counsel and the  right  to  confront
witnesses are closely related to truth-finding in a way that  the
rule announced in Blakely is not.

     110    Smart v. State, 146 P.3d 15, 30-31 (Alaska App. 2006)
(citing and discussing In re Winship, 397 U.S. 358 (1970)).

     111    Winship, 397 U.S. at 364.

     112    Id. at 363-64.

     113    Ivan V. v. City of New York, 407 U.S. 203, 205 (1972).

     114    Winship, 397 U.S. at 359 n.1.

     115    See United States v. Sanchez-Cervantes, 282 F.3d 664,
671 (9th Cir. 2002).  In Sanchez-Cervantes the Ninth Circuit held
that  Apprendi  does  not  apply retroactively.  Id.   The  court
reasoned  that  [t]he application of Apprendi  only  affects  the
enhancement  of a defendants sentence once he or she has  already
been convicted beyond a reasonable doubt.  Therefore, it does not
rise to the level of importance of Winship . . . .  Id.

     116    Id. (quoting Hankerson v. North Carolina, 432 U.S. 233,
243 (1977) (emphasis in original)).

     117     In contrast, a Winship violation calls into question
the  defendants  actual  guilt or innocence  because  every  fact
necessary  to  constitute  the crime  was  not  proved  beyond  a
reasonable doubt and would probably require vacating the sentence
and remanding for a new trial.  See Winship, 397 U.S. at 364.

     118     State  v. Houston, 702 N.W.2d 268, 274 (Minn.  2005)
(internal  quotations  omitted)  (applying  Teague  retroactivity
standard and holding that Blakely is not retroactive).

     119    Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005)
(concluding  that Blakely is procedural rule); United  States  v.
Price,   400   F.3d  844,  848  (10th  Cir.  2005)  (Blakely   is
procedural);  Sepulveda v. United States, 330 F.3d  55,  61  (1st
Cir. 2003) (referring to rule announced in Apprendi as procedural
mandate);  Coleman v. United States, 329 F.3d  77,  83  (2d  Cir.
2003)  (Apprendi  announced procedural rule);  United  States  v.
Jenkins,  333 F.3d 151, 154 (3d Cir. 2003) (same); United  States
v.  Brown,  305 F.3d 304, 309 (5th Cir. 2002) (same);  Curtis  v.
United  States, 294 F.3d 841, 843 (7th Cir. 2002) (same);  United
States  v.  Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir.  2002)
(same); United States v. Moss, 252 F.3d 993, 998 (8th Cir.  2001)
(same);  McCoy v. United States, 266 F.3d 1245, 1257  n.16  (11th
Cir.  2001) (same); United States v. Sanders, 247 F.3d  139,  147
(4th  Cir. 2001) (Apprendi constitutes a procedural rule  because
it  dictates  what  fact-finding procedure must  be  employed  to
ensure a fair trial.).

     120    Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (citing
Saffle  v.  Parks,  494 U.S. 484, 495 (1990) (quoting  Teague  v.
Lane, 489 U.S. 288, 311 (1989) (plurality opinion))).

     121    Id. at 352 (internal quotations omitted).

     122     See Sepulveda, 330 F.3d at 61 (holding that Apprendi
does not apply retroactively); United States v. Swinton, 333 F.3d
481,  491 (3d Cir. 2003) (same);  Coleman, 329 F.3d at 90 (same);
Goode v. United States, 305 F.3d 378, 382 (6th Cir. 2002) (same);
Brown,  305  F.3d at 310 (same); Curtis, 294 F.3d at 844  (same);
United  States  v.  Mora, 293 F.3d 1213, 1219  (10th  Cir.  2002)
(same);  McCoy, 266 F.3d at 1258 (same); Moss, 252  F.3d  at  997
(same); Sanders, 247 F.3d at 151 (same); Jones v. Smith, 231 F.3d
1227, 1236 (9th Cir. 2000) (same).

     123    Sanders, 247 F.3d at 150; accord Moss, 252 F.3d at 999
(Apprendi  appears no more important to a fair trial  than  rules
previously addressed by the Court . . .  which the Court  refused
to  apply retroactively[.]); Sanchez-Cervantes, 282 F.3d  at  669
(We  do  not  believe  that requiring the jury  to  make  .  .  .
determinations beyond a reasonable doubt will greatly affect  the
accuracy  of convictions.  Nor is this rule a bedrock  procedural
element.).

     124    Schardt, 414 F.3d at 1036 (concluding that Blakely is
not watershed rule); Price, 400 F.3d at 848 (same).

     125    Smart v. State, 146 P.3d 15, 33-34 (Alaska App. 2006).

     126    Id. at 33-34.

     127    The state cites the court of appealss decision in Huf
v. State, 675 P.2d 268, 271-73 (Alaska App. 1984), as the initial
case upholding judicial fact-finding.

     128    The state correctly cites State v. Malloy, 46 P.3d 949
(Alaska  2002),  and Wright v. State, 46 P.3d  395  (Alaska  App.
2002), for this proposition.

     129     We  assume  the state is referring  to  Blakely  and
Apprendi,  both  of  which were 5-4 decisions.   See  Blakely  v.
Washington, 542 U.S. 296, 297 (2004); Apprendi v. New Jersey, 530
U.S. 466, 468 (2000).

     130    Smart, 146 P.3d at 34.

     131    Id.

     132    Id.  There are currently 268 stayed cases.

     133    Id.  The court stated that out of thirty-five appeals,
only two defendants were held entitled to relief.  Id.

     134    Id. at 35.

     135    Id. at 44 (Coats, C.J., dissenting).

     136    Id.

     137    Schriro v. Summerlin, 542 U.S. 348, 355-56 (2004).

     138     The  state relies heavily on the court  of  appealss
decision  in  Bishop v. Municipality of Anchorage, 685  P.2d  103
(Alaska  App. 1984).  In Bishop the court stated that under  Rule
35(a) [t]he term illegal sentence has been narrowly construed and
applies  only  to sentences which the judgment of conviction  did
not authorize.  Id. at 105.

     139    Rule 35(a) states, [t]he court may correct an illegal
sentence at any time.  Rule 35.1 in pertinent part states:

          (a)   Scope:  A person who has been convicted
          of  or sentenced for a crime may institute  a
          proceeding  for post-conviction relief  under
          AS 12.72.01012.72.040 if the person claims:
          (1)   that the conviction or the sentence was
          in  violation  of  the  constitution  of  the
          United States or the constitution or laws  of
          Alaska;
          (2)   that the court was without jurisdiction
          to impose sentence;
          . . . .
          (7)  that
               (A)  there has been a significant change
          in  law,  whether substantive or  procedural,
          applied  in  the  process  leading   to   the
          applicants conviction or sentence;
               (B)    the   change  in  law   was   not
          reasonably  foreseeable  by  a  judge  or   a
          competent attorney;
               (C)   it is appropriate to retroactively
          apply the change in law because the change in
          law requires observance of procedures without
          which the likelihood of an accurate and  fair
          conviction is seriously diminished; and
               (D)   the failure to retroactively apply
          the   change  in  law  would  result   in   a
          fundamental miscarriage of justice, which  is
          established  by demonstrating that,  had  the
          change  in law been in effect at the time  of
          the  applicants trial, a reasonable trier  of
          fact would have a reasonable doubt as to  the
          guilt of the applicant . . . .
          
     140     The  text of AS 12.72.010 is identical in  pertinent
parts to Rule 35.1.  See supra note 139 for text.  There are only
a  few minor differences in language between the two  for example
this state in AS 12.72.010(1) and Alaska in Rule 35.1(a)(1).

     141    There is likewise no reason to discuss the comment of
the  court of appeals that the legislatures adoption of a Teague-
like  analysis  in AS 12.72.010 raise[s] serious questions  under
the  doctrine of separation of powers.  Smart v. State, 146  P.3d
15, 29 (Alaska App. 2006).

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