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Walsh v. State (4/28/2006) ap-2048

Walsh v. State (4/28/2006) ap-2048

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals Nos. A-8805 & A-8965
Appellant, ) Trial Court No. 4FA-03-3446 CR
v. )
) O P I N I O N
Appellee. ) No. 2048 April 28, 2006
          Appeal  from the Superior Court, Fourth  Judi
          cial  District, Fairbanks, Richard D. Savell,

          Appearances:   Karla Taylor-Welch,  Assistant
          Public Advocate, Fairbanks, and Joshua  Fink,
          Public    Advocate,   Anchorage,   for    the
          Appellant.  W. H. Hawley and Douglas Kossler,
          Assistant   Attorneys  General,   Office   of
          Special  Prosecutions and Appeals, Anchorage,
          and   David  W.  M rquez,  Attorney  General,
          Juneau, for the Appellee.

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

          STEWART, Judge.

          A  jury convicted John R. Walsh of first-degree vehicle
theft,  driving  under  the influence, refusal  to  submit  to  a
chemical  test,  leaving  the scene  of  an  accident,  resisting
arrest, and driving while his license was suspended.1
          Walsh  argues that the superior court failed to address
his  request  to change his appointed attorney.  But we  conclude
that  the superior court properly addressed the complaints  Walsh
raised about his attorney before and during trial.
          Superior Court Judge Richard D. Savell sentenced  Walsh
to  10  years with 4 years and 310 days suspended, a net 5  years
and  55  days to serve.  Walsh raises several objections  to  his
composite  sentence including claims that Judge Savells  findings
do  not  support  the  sentence.  We reject the  bulk  of  Walshs
arguments.  But, as the State concedes, the sentence Judge Savell
imposed  for leaving the scene of an accident, a net 120 days  to
serve,  is  not authorized.  The maximum allowable  sentence  for
this  offense  is  90 days of imprisonment.2  Judge  Savell  must
resentence  Walsh  on  this  count.  Because  Judge  Savell  will
resentence Walsh, he will have the opportunity to enter  findings
that address Walshs remaining objections.

          Background facts and proceedings
          On September 13, 2003, Walsh took a Home Depot delivery
truck  without  permission from the Home  Depot  parking  lot  in
Fairbanks.   Walsh drove onto the Mitchell Expressway,  where  he
collided  with  a  pickup truck and kept going,  causing  several
vehicles to take evasive action.
          Walsh  drove to the Fred Meyer West parking lot,  where
he  collided with three parked cars.  Walsh walked into the  Fred
Meyer building.
          Inside,  Walsh put some items in a shopping cart  while
snacking  on  food  he  had picked up  in  the  deli  and  bakery
sections.    Walsh  left  the  store  with  the  shopping   cart,
staggering as he walked.
          Outside  the store, Alaska State Trooper Rachel  Foster
approached  Walsh, identified herself, and asked  Walsh  for  his
name.  Walsh introduced himself as Trooper Walsh.
          Trooper  Foster observed that Walsh smelled of alcohol,
had  watery bloodshot eyes, and was not in control of  his  motor
functions.  Trooper Foster attempted to take Walsh into  custody,
but  he kept flailing his arms around and kicking his legs.  Even
though  Foster  told  Walsh  that  he  was  under  arrest,  Walsh
continued  to  struggle. Other troopers arrived  to  assist,  and
Walsh  was handcuffed and transported to the trooper post  for  a
DUI  investigation.   Walsh declined to perform  sobriety  tests.
The  troopers read Walsh the implied consent warning and gave him
an opportunity to submit to a breath test.  He refused.
          The  grand jury charged Walsh with one count of  first-
degree vehicle theft.  The district attorney filed an information
charging  six  misdemeanor counts:  driving under the  influence;
refusal  to  submit to a chemical test; leaving the scene  of  an
accident;  resisting or interfering with arrest;  concealment  of
merchandise;3  and driving while license canceled, suspended,  or

          Walshs  claim  that  his  attorney  should  have   been
          The  court  appointed  the Public  Defender  Agency  to
represent  Walsh.  Walshs attorney calendared a  change  of  plea
hearing  on November 19, 2003, but at that hearing, Walsh  stated
that he had not reached an agreement on the plea bargain that his
attorney had negotiated with the State.  He said that he was told
that  [he  was] looking at three years here and if [he didnt]  go
along  with it then [he was] going to get five years.  He further
stated that he wanted more time because there was just some minor
stuff  in  there that we didnt get finished with  on  time.   The
court  continued the hearing for two days, at which  point  Walsh
said he wanted to go to trial.
          At  calendar call on December 4, 2003, Walsh told Judge
Savell, Weve had a slight conflict of interest.  Im asking for  a
new  counsel.  Judge Savell told Walsh that he should discuss the
issue  with  his attorney and that if it was an ethical  problem,
the attorney was obligated to inform the court.
          The  Court:  You  have the  right  to  court-
          appointed counsel.  You do not have the right
          to counsel of your choosing.  If, by conflict
          of  interest, you mean theres something  that
          fits  under the code of ethics, you  [should]
          bring that to your lawyers attention, and hes
          obligated to bring it to my attention.
The case went to trial without Walsh or his attorney returning to
this issue.
          On December 9, during the trial, Walsh personally moved
for  a  mistrial,  complaining about some of his trial  attorneys
tactics.   Judge Savell did not grant a mistrial and  told  Walsh
that   his   complaints  about  the  quality  of  his   attorneys
performance would be addressed at another time and place.
          Walsh  argues  that his conviction should  be  reversed
because  Judge  Savells  responses to his  complaints  about  his
attorney were insufficient.  Walsh contends that, while case  law
does not specifically hold that the court must examine the reason
behind a defendants request for new counsel, the need for inquiry
is implicit in that case law.
          Walsh  argues that a trial court must inquire when  the
court  learns  that there has been a breakdown in  the  attorney-
client  relationship.  An indigent defendant  with  an  appointed
attorney  is not entitled to counsel of his or her choice.4   But
when   there   has   been  a  breakdown  in  the  attorney-client
relationship,  a  defendant  may  be  entitled  to  a  change  in
representation.5  Case law implies that a court has an obligation
to  inquire  when  presented  with a substantial  claim  that  an
appointed attorney must withdraw.6
          But  at  calendar  call, Walsh only  contended  that  a
slight conflict existed between himself and his attorney.   Judge
Savell  responded reasonably to this report.  He  told  Walsh  to
discuss  the  issue with his attorney and advised  him  that  the
attorney  was  obliged to bring any ethical issue to  the  courts
attention.   Viewed  objectively, Walshs calendar-call  complaint
did  not show a breakdown in the attorney-client relationship,  a
          disqualifying conflict of interest, or a failure in communication
that required further action by Judge Savell beyond the direction
he offered.
          During the second day of trial, Walsh personally  moved
for   a  mistrial.   This  time,  Walsh  provided  more  explicit
criticisms of his attorney.
               Walsh:   I  need a mistrial declared  in
          this  case  for the following  reasons.   [My
          attorney] projected guilt to the jury without
          prior  consent  when  he  told  them  I   was
          shoplifting,  which is false.  He  has  never
          discussed  any trial strategy with  me.   The
          alleged  witness, Danielle Simmons  that  was
          added  to  the  states witness  list  without
          argument  from a lawyer is, to my  knowledge,
          not  common practice.  I also have never seen
          Mrs. Simmons name as a witness in the case in
          either  the grand jury tapes, police reports,
          or I didnt get anything else.
               All     due    process    was    denied,
          constitutional rights trampled.  Furthermore,
          theres  been a conflict of interest with  Mr.
          Spiers and myself from the beginning stemming
          from  an prior case.  He has filed no motions
          on  my  behalf  for suppression, evidentiary,
          conflict   or   anything   as   I   suggested
          throughout my case, but rather has  dismissed
          me as a jailhouse lawyer.
               I  have never received all discovery  or
          exculpatory evidence in my case as  requested
          to my knowledge.  Mr. Spiers has only seen me
          twice  for 15 minutes and threatened me  with
          six  to  13  years if I didnt take  his  plea
Judge  Savell denied Walshs motion for a mistrial.  He  responded
to  Walshs  complaints  regarding his  attorneys  performance  as
               The  Court:  You have a lawyer  in  this
          case.   There are certain decisions that  are
          entrusted  to  lawyers under  the  law.   The
          lawyers make tactical and strategic decisions
          during   a  trial,  and  there  are   certain
          decisions  that are only the defendants.   If
          and  when  you continue to have  a  complaint
          about [your attorneys] performance, that will
          be  examined at another time and  in  another
          place. ... I could explain all the reasons in
          answer  to all of your complaints but do  not
          feel this is the right time or place[.]
          The  State argues that this court should not treat  the
statements  Walsh  made on the second day of trial  as  a  second
request  for  new  counsel  because,  instead  of  asking  for  a
substitution  of  counsel, Walsh moved for a  mistrial.   As  the
State  points  out,  this court normally  does  not  address  new
arguments  or  theories on appeal that were  not  raised  in  the
superior  court.7  The State argues that Walsh is  attempting  to
raise  a  new  claim  on appeal  that Judge  Savell  should  have
appointed a new attorney based on Walshs mistrial motion.
          But it is apparent from the content of Walshs complaint
that  he  was  objecting to his attorneys performance.   And,  in
addition   to  denying  Walshs  mistrial  motion,  Judge   Savell
addressed  the substance of Walshs complaint about his  attorney.
We therefore conclude that Walsh preserved this point on appeal.
          There   is   substantial  authority  holding   that   a
defendants request to replace an attorney is untimely  if  it  is
made  just before or during trial.8  We have never been asked  to
adopt  or reject this line of cases.  Indeed, in prior cases,  we
have examined trial judges rulings on defendants complaints about
their  attorneys  and defendants requests for new  counsel,  even
when those requests were made on the eve of trial.9
          But  even  assuming  that Walshs  complaint  about  his
attorneys performance and strategy should not have been  rejected
on  grounds of timeliness, we have nevertheless cautioned  judges
to  be  hesitant  about injecting themselves into  the  attorney-
client  relationship  when  presented  with  complaints  about  a
defense  attorneys performance.  In Mute v. State,10   we  stated
          absent   extraordinary  circumstances,   [the
          trial judge] was rightfully hesitant to enter
          into   an   extended  examination   of   [the
          attorneys]  view of the case  and  his  trial
          strategy,  or to otherwise insinuate  herself
          as    referee    in    the    attorney-client
          relationship. [The judge] therefore  did  not
          abuse  her  discretion when she denied  Mutes
          motion to discharge [his attorney].[11]
          Here, Judge Savell responded to Walshs complaints about
the  adequacy of his attorneys performance by telling Walsh  that
these  complaints could be addressed at a later  time.   Although
Judge   Savell  did  not  describe  the  details  of  this  later
proceeding  to  Walsh,  it is clear that if  Walsh  continued  to
believe  that his attorneys performance was not competent,  Walsh
would  be  entitled to pursue an application for  post-conviction
relief or a motion for a new trial.
          Judge  Savell did not abuse his discretion  in  dealing
with  Walshs complaints in this fashion.  Our prior decisions  on
this  issue  clearly suggest that a trial judge who is confronted
by  challenges to a defense attorneys performance on the  eve  of
trial, or during trial, should not interrupt the trial to conduct
an investigation of the defendants complaints.  The only cases in
which a trial judge is required to take precautionary or curative
action  are  when  there is reason to believe the attorney-client
relationship has deteriorated to the point where the attorney  is
incapable  of  effective  communication  with  the  defendant  or
objective decision-making about the case.12
          Here,  Walshs  mistrial request did not  present  Judge
Savell  with reason to believe that Walshs relationship with  his
attorney  had  deteriorated to this point.  Walshs criticisms  of
          his attorneys decisions and performance did not indicate that his
attorney  was incapable of effective communication with Walsh  or
that  his  attorney could not make objective decisions about  the
case.   Accordingly,  Judge Savell did not abuse  his  discretion
when  he declined to interrupt Walshs trial to investigate  these

          Walshs attack on the length of his sentence
          Judge  Savell sentenced Walsh to 10 years with 4  years
and  310  days  suspended, a net 5 years and 55  days  to  serve.
Walsh  raises  several objections to his composite sentence.   We
reject the bulk of Walshs arguments.  But, as the State concedes,
the  sentence Judge Savell imposed for leaving the  scene  of  an
accident,  1  year with 245 days suspended, a  net  120  days  to
serve,  is  not authorized.  The maximum allowable  sentence  for
this  offense  is 90 days of imprisonment.13  Judge  Savell  must
resentence  Walsh  on  this  count.  Because  Judge  Savell  will
resentence Walsh, he will have the opportunity to enter  findings
that address Walshs remaining objections.
          As  a second felony offender, Walsh was subject to a 2-
year  presumptive term for vehicle theft.14  The  State  proposed
three  aggravating  factors under AS 12.55.155(c):  (c)(6),  that
Walshs  conduct  created a risk of imminent  physical  injury  to
three or more persons; (c)(8), that the defendants prior criminal
history   includes  conduct  involving  aggravated  or   repeated
instances of assaultive behavior; and (c)(21), that the defendant
has a criminal history of repeated instances of conduct violative
of criminal laws, whether punishable as felonies or misdemeanors,
similar in nature to the offense for which the defendant is being
sentenced.    Walsh  conceded  those  aggravators  applied.    At
sentencing, Judge Savell asked Walshs attorney, In this case, for
me  to  exceed a five-year sentence, I must find that that excess
is necessary to protect the public and tie that in with a finding
of dangerousness; isnt that right ... ?
          Judge  Savell  was apparently referring  to  the  Neal-
Mutschler rule, a sentencing rule announced by the Alaska Supreme
Court   that  provides  a  sentencing  judge  should  not  impose
consecutive  sentences that total more than the maximum  sentence
for  the  defendants most serious offense unless  the  sentencing
judge  expressly  finds  that such a  sentence  is  necessary  to
protect the public.15  Moreover, while he acknowledged that Walsh
was  an  alcoholic with a criminal record (Walsh had  a  criminal
history  of  over  forty-five prior criminal convictions),  Judge
Savell  expressed hope that Walsh could be rehabilitated.   Judge
Savell imposed a composite 10-year term with 4 years and 310 days
suspended, a net 5 years and 55 days to serve.
          Walsh  argues  that  his sentence is excessive  because
Judge  Savell  imposed this sentence without making  the  express
findings  required by the Neal-Mutschler rule and the  rule  from
Farmer  v.  State.16   The State points out  that  Judge  Savells
expressed  awareness of the rule indicates that  his  failure  to
make an express finding was an oversight.
          Judge  Savell began his sentencing remarks as  follows:
Case  law indicates that I must make certain findings if Im going
          to impose a sentence that is greater than the maximum sentence
for  the  most  serious crime of which an offender  is  committed
[sic].   In  this case, for me to exceed a five-year sentence,  I
must find that that excess is necessary to protect the public and
tie that in with a finding of dangerousness[.]  He also explained
that  he was required to protect the public and isolate Mr. Walsh
to the degree that is necessary.
          Like  the offenders in Powell v. State17 and Waters  v.
State,18 cases in which we upheld a composite term exceeding  the
maximum term for the defendants  most serious offense despite the
lack  of  an  express Neal-Mutschler finding, Walsh is  a  mature
offender  with a long criminal record and a significant substance
abuse problem.  Although the record in this case is sufficient to
support  a  composite  term for Walsh in  excess  of  the  5-year
maximum  for vehicle theft, because we must remand the  case  for
resentencing,  as we explain below, Judge Savell  will  have  the
opportunity  to  enter an express Neal-Mutschler findings  if  he
elects to re-impose a composite term in excess of 5 years.
          Walsh  points  out  that Judge  Savell  did  not  enter
express  findings to satisfy the Farmer rule.  The  State  argues
that  this  requirement is not necessary because if a  sentencing
judge   satisfies  the  Neal-Mutschler   rule,   those   findings
implicitly  satisfy  the Farmer rule.  The  States  argument  has
merit.   But  here, a Neal-Mutschler finding is not necessary  to
satisfy  Farmer.  In Randall v. State,19 we held that, where  the
sentencing  judge  was authorized to exceed the presumptive  term
because  he found aggravating factors, these aggravating  factors
constituted  the  good  cause required by  Farmer  to  support  a
composite sentence exceeding that presumptive term.20  Thus,  the
aggravating factors conceded by Walsh constituted good cause  for
exceeding the presumptive term for vehicle theft.
          The  State  concedes that Judge Savell  erred  when  he
imposed  1 year with 245 days suspended for leaving the scene  of
an  accident.  The maximum penalty for this offense  is  90  days
          The  State  points out, however, that under  Allain  v.
State,22  the  superior court is authorized to  impose  the  same
composite  term  on  remand.23  Judge  Savell  indicated  in  his
sentencing  remarks that he knew where [he] want[ed] to  go  with
the  composite sentence, apparently finding 10 years with 4 years
and 310 days suspended  appropriate as a total sentence.  Because
he  fashioned  a composite term appropriate for the  totality  of
Walshs conduct, the court may resentence him on remand to a  term
that does not exceed the composite sentence originally imposed in
this case.24

          Walshs arguments based on Blakely v. Washington
          While  this  appeal was pending, Walsh filed  a  motion
under  Alaska  Criminal  Rule 35(a),  seeking  correction  of  an
allegedly  illegal sentence.  This motion concerned the  legality
of  the  sentence Walsh received for first-degree vehicle  theft.
Walsh  contended that his sentence was illegal under  Blakely  v.
Washington25 because (1) Walsh was subject to a 2-year presumptive
term of imprisonment for this offense, (2) Judge Savell relied on
          various aggravators codified in AS 12.55.155(c) as authority to
impose a sentence exceeding this 2-year presumptive term, and (3)
Judge  Savell  decided  these  aggravators  by  himself,  without
referring these matters to a jury.
          Judge Savell denied Walshs Rule 35(a) motion, and Walsh
now raises this same argument on appeal in File No. A-8965.
          The State argues that Judge Savell was entitled to deny
Walshs motion on purely procedural grounds.  The State takes  the
position  that  even  if a sentence is imposed  in  violation  of
Blakely, the sentence is not illegal  and, thus, a defendant   is
not  entitled  to  raise a Blakely claim in a motion  under  Rule
35(a) to correct an illegal sentence.
          The  State acknowledges that, in Paige v. State,26 this
Court  instructed  the defendant to bring his  Blakely  claim  as
either  a Rule 35(a) motion or an application for post-conviction
relief.27   But,  the State contends that this was  an  erroneous
dictum  and   the  sole  vehicle for  raising  a  post-sentencing
Blakely claim is an application for post-conviction relief.
          In Bishop v. Anchorage,28 this Court held that Criminal
Rule  35(a) employs the term illegal sentence in a narrow  sense;
the term refers only to sentences that the judgment of conviction
did  not  authorize.29   We  offered three  examples  of  illegal
sentences:   (1) a sentence that [is] contrary to the  applicable
statute;  (2)  a  written  judgment not conforming  to  the  oral
pronouncement of sentence; and (3) a sentence that  is  ambiguous
with respect to the time and manner in which it is to be served.30
          The  State suggests that, because Walshs attack on  his
vehicle  theft  sentence  does  not  fall  within  any  of  these
categories,  it  is  not  an  illegal sentence  for  purposes  of
Criminal  Rule  35(a).  The State further argues that  a  Blakely
claim  challenges  the manner in which a defendants  sentence  is
imposed, rather than the legality of the sentence itself.31
          We  find  the States arguments unconvincing.   Although
our decision in Bishop lists three types of sentences that may be
challenged as illegal under Criminal Rule 35(a), this list is not
exhaustive.  Instead, the guiding principle (as stated in Bishop)
is  whether  the defendant asserts that the court has  imposed  a
sentence [that] the judgment of conviction did not authorize.
          Under  Alaskas  pre-2005 presumptive  sentencing  laws,
Judge  Savell was not authorized to exceed the 2-year presumptive
term  that  applied  to Walshs offense unless  the  State  proved
aggravating  factors  or extraordinary circumstances.32   Blakely
stands  for the proposition that when a sentencing judge  has  no
authority  to  exceed  a  specified  sentencing  ceiling   unless
particular  aggravating factors are proved, the defendant  has  a
right to demand a jury trial on those aggravating factors.33
          Therefore,  a sentence imposed in violation of  Blakely
that is, a sentence greater than would be authorized by the jurys
verdict  alone  is an illegal sentence for purposes  of  Criminal
Rule  35(a).  For this reason, Walsh was entitled to  pursue  his
Blakely claim under Criminal Rule 35(a).
          We now turn to the merits of Walshs Blakely argument.
          As  we  explained  above, the State argued  that  three
aggravating  factors applied to Walshs case, and  Walsh  conceded
          all three of these factors.
          The  States  proof  of aggravators (c)(21)  and  (c)(8)
rested  on Walshs uncontested prior criminal convictions.   Under
these  circumstances, both aggravators fell  within  the  Blakely
exception for a defendants prior convictions.  Thus, Judge Savell
was not obligated to submit these two aggravators to a jury.34
          This  leaves  aggravator (c)(6)   the  allegation  that
Walshs  conduct placed three or more persons at risk of  imminent
physical  injury.  It was plain error, under Blakely,  for  Judge
Savell not to submit this aggravator to a jury.
          We  nevertheless conclude that this error was  harmless
beyond a reasonable doubt.35  When Walshs underlying criminal case
was litigated, Walsh never disputed that the driver of the stolen
vehicle  engaged in erratic and dangerous driving that  put  many
people  at risk.  Instead, Walsh contended that he had  not  been
that driver.
          The  jury  convicted  Walsh of vehicle  theft,  driving
under  the  influence, and driving with a suspended license.   In
other  words, the jury found beyond a reasonable doubt that Walsh
had been driving the stolen vehicle.
          Given  the jurys verdicts, and given the way  in  which
Walsh  litigated this case, we conclude that the error in failing
to  submit  aggravator  (c)(6) to a jury was  harmless  beyond  a
reasonable  doubt.   Or,  stated another  way,  given  the  jurys
finding that Walsh was the driver of the stolen vehicle, there is
no  reasonable possibility that a jury would find in Walshs favor
on  the question of whether his driving endangered three or  more

          For  the  reasons  explained  here,  we  AFFIRM  Walshs
convictions  and we reject most of his attacks on his  sentences.
However,  we VACATE the sentence that Walsh received for  leaving
the  scene  of  an  accident, and we remand Walshs  case  to  the
superior court for resentencing, consistent with this opinion.
          We do not retain jurisdiction of this case.

  1  AS 11.46.360(a)(1), AS 28.35.030(a)(1), AS 28.35.032(a),  AS
28.35.050(b),   AS   11.56.700(a)(1),  and  AS   28.15.291(a)(1),

  2 AS 28.35.050; AS 28.40.050(b).

  3 AS 11.46.220(a)(1) & (c)(3).

  4 See Coleman v. State, 621 P.2d 869, 878 (Alaska 1980).

  5  See  Moore v. State, 123 P.3d 1081, 1088 (Alaska App. 2005);
Love  v.  State,  630 P.2d 21, 25 (Alaska App. 1981).   See  also
United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) .

  6  See  Coleman, 621 P.2d at  878-79 ([T]he denial of  Colemans
motion  for  private appointed counsel ... was not  error,  given
[the  superior  court  judges] examination  of  Coleman  and  his
appointed  public defender regarding whether the  attorney  could
properly represent Coleman.); Moore, 123 P.3d at 1088-89; Mute v.
State, 954 P.2d 1384, 1385 (Alaska App. 1998).

  7  See,  e.g.,  Price  v. Eastham, 128 P.3d  725,  731  (Alaska
2006);  Conkey  v. State, 113 P.3d 1235, 1237 n.6 (Alaska  2005);
Gates v. Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991).

  8  See  United  States v. Trujillo, 376 F.3d 593,  606-07  (6th
Cir.  2004)  (motion for substitution of counsel made three  days
before  trial  was untimely); United States v. Reevey,  364  F.3d
151,  157  (4th Cir. 2004) (request for new counsel made  on  the
first day of trial was untimely); United States v. Franklin,  321
F.3d  1231, 1238-39 (9th Cir. 2003) (defendants request  for  new
counsel  made  ten  days  before trial and  attorneys  motion  to
withdraw made six days before trial were untimely); United States
v.  Gonzalez, 800 F.2d 895, 898 (9th Cir. 1986) (motion  made  on
second  day  of trial was untimely); United States v.  McClendon,
782  F.2d 785, 789 (9th Cir. 1986) (motion to substitute made  on
first day of trial was untimely); Hudson v. Rushen, 686 F.2d 826,
831  (9th  Cir. 1982) (motion to substitute made at the close  of
the prosecutions case was untimely).

  9 See, e.g., Mute, 954 P.2d at 1385.

  10 954 P.2d 1384.

  11 Id. at 1385-86.

  12  Mute,  954  P.2d  at 1385-86.  See also Gardner  v.  State,
Alaska  App.  Memorandum Opinion and Judgment No.  5064  at  9-11
(March  29,  2006),  2006  WL 829758 at *  4-6  (Mannheimer,  J.,
concurring);  3 Wayne R. LaFave, Jerold H. Israel, and  Nancy  J.
King, Criminal Procedure  11.4(b), at 554 (2nd ed. 1999).

  13 AS 28.35.050; AS 28.40.050(b).

  14 AS 12.55.125(e)(1).

  15  See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler
v. State, 560 P.2d 377, 381 (Alaska 1977).

  16  746 P.2d 1300, 1301 (Alaska App. 1987) (when an offender is
sentenced for multiple crimes, the presumptive term for the  most
serious  offense  is  a  benchmark that should  not  be  exceeded
without a good reason).

  17 88 P.3d 532 (Alaska App. 2004).

  18 64 P.3d 169 (Alaska App. 2003).

  19 44 P.3d 984 (Alaska App. 2002).

  20 Id. at 985.

  21 AS 28.40.050(b).

  22 810 P.2d 1019 (Alaska App. 1991).

  23 Id. at 1022.

  24 Id.

  25 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

  26 115 P.3d 1244 (Alaska App. 2005).

  27 Id. at 1248.

  28 685 P.2d 103 (Alaska App. 1984).

  29 Id. at 105.

  30 Id. (internal citations and quotations omitted).

  31 See id. at 105 n.3.

  32 See Haag v. State, 117 P.3d 775, 782 (Alaska App. 2005).

  33 Id. at 782 (internal citations omitted).

  34  See  Grohs  v.  State,  118 P.3d 1080,  1084  (Alaska  App.
2005)(Alaska App. 2005) (holding that when aggravator (c)(21)  is
based  on a defendants uncontested prior convictions, the Blakely
exception for prior convictions applies, and the aggravator  need
not be submitted to a jury); Milligrock v. State, 118 P.3d 11, 16
(same holding with respect to aggravator (c)(8)).

  35  See  United States v. Cotton, 535 U.S. 625, 633-34, 122  S.
Ct.  1781,  1786-87,  152 L. Ed. 2d 860 (2002),  and  Johnson  v.
United  States,  520 U.S. 461, 466-68, 117 S. Ct. 1544,  1548-49,
137 L. Ed. 2d 718 (1997), both holding that a denial of the right
to  jury  trial  does  not  require reversal  of  the  defendants
conviction  if  the error is harmless beyond a reasonable  doubt.
We  discussed both of these cases in Ned v. State, 119 P.3d  438,
443-44 (Alaska App. 2005).

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