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State v. Moreno (12/8/2006) ap-2075

State v. Moreno (12/8/2006) ap-2075

     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

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) Court of Appeals No. A-9148
Petitioner, ) Trial Court No. 3AN-99-8227 CR )
v. )
) O P I N I O N
Respondent. ) No. 2075 December 8, 2006
          Petition for Review from the Superior  Court,
          Third Judicial District, Anchorage, Philip R.
          Volland, Judge.

          Appearances:    Nancy  R.  Simel,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for   the   Petitioner.   John  M.   Murtagh,
          Anchorage, for the Respondent.

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

          STEWART, Judge.

          In  2004, Ronnie Moreno was convicted of two counts  of
first-degree  sexual   abuse  of a minor.1   As  a  first  felony
offender, Moreno faced an 8-year presumptive term of imprisonment
under   the   pre-March  2005  version  of  Alaskas   presumptive
sentencing  law.2   The  State proposed no  aggravating  factors.
Accordingly, Moreno would apparently have  received the specified
8-year  term  of  imprisonment on each count.   But  rather  than
sentence Moreno, the superior court ruled that Alaskas entire pre-
          2005 presumptive sentencing law was unconstitutional.
          Superior   Court   Judge  Philip   R.   Volland   noted
(correctly) that the procedures specified in the presumptive  law
for  adjudicating aggravating factors violated the right to  jury
trial  announced in Blakely v. Washington.3  Judge  Volland  then
ruled  that  these  procedures were so  crucial  to  the  overall
functioning  of  presumptive sentencing that they  could  not  be
severed or amended by judicial decision, and that the presumptive
sentencing  law  as a whole had to be struck down.   Accordingly,
the  court announced its intention to sentence Moreno as  if  the
presumptive  sentencing  law did not  exist   with  indeterminate
sentencing  within  the range of imprisonment  specified  by  the
legislature  for  first-degree sexual abuse of a  minor  (Morenos
misconduct occurred in 1998, when the sentencing range for first-
degree sexual abuse of a minor was 0 to 30 years4).
          The  State  has  petitioned us to review  the  superior
courts decision.
          It is true that Alaskas pre-2005 presumptive sentencing
law  violated the Sixth Amendment right to jury trial  recognized
in  Blakely  because, under that law, aggravating factors  (i.e.,
factors authorizing the superior court to impose a higher maximum
sentence)  were litigated to the sentencing judge under  a  clear
and convincing evidence standard,5 rather than to a jury under  a
beyond  a  reasonable doubt standard.           Nevertheless,  we
conclude  that  these constitutionally flawed procedures  can  be
replaced   by   jury  trial  procedures  that  conform   to   the
requirements   of  Blakely  without  destroying   the   essential
functioning and purpose of Alaskas presumptive sentencing scheme.
We  therefore reverse the superior court and uphold  the  overall
constitutionality   of   Alaskas   pre-March   2005   presumptive
sentencing law.
          When  portions of a statute or particular  applications
of a statute are unconstitutional, the courts must decide whether
the  invalid  portions or applications may be  severed  from  the
operation  of  the statute (thus allowing the valid  portions  to
remain  in  effect),  or whether the statute should  be  declared
unconstitutional as a whole.6
          The  Alaska  Statutes  contain a  general  severability
clause, AS 01.10.030, that is designed to preserve to as great an
extent as possible all valid portions of enactments by the Alaska
State Legislature.7  This statute reads:

               Any   law  ...  enacted  by  the  Alaska
          legislature which lacks a severability clause
          shall be construed as though it contained the
          clause  in  the following language:   If  any
          provision  of  this Act, or  the  application
          thereof to any person or circumstance is held
          invalid,  the remainder of this Act  and  the
          application to other persons or circumstances
          shall not be affected thereby.

With  this  rule  in  mind,  we examine  Alaskas  pre-March  2005
presumptive sentencing law.
          The  manner in which aggravating factors are  litigated
          under the pre-2005 law does not conform to Blakely.  But the
essential  functioning of the presumptive sentencing law  is  not
defeated when aggravating factors are litigated to a jury under a
beyond  a  reasonable doubt standard.  Indeed,  when  the  Alaska
legislature amended the presumptive sentencing law in the  spring
of 2005 to bring it into conformity with Blakely, the legislature
did  not return to indeterminate sentencing (which existed before
the   enactment   of   presumptive  sentencing).    Rather,   the
legislature   retained   the  basic  framework   of   presumptive
sentencing, including the same scheme of aggravating factors  and
mitigating  factors   but with the proviso  that  many  of  these
aggravating  factors are to be litigated to  a  jury  and  proved
beyond a reasonable doubt.  See AS 12.55.155(f).
          When  the  legislature enacted this amended version  of
the  presumptive sentencing law, it declared that its purpose was
to preserve the basic structure of Alaskas presumptive sentencing
system [and to] avoid disparate sentences.8  The legislature  has
clearly  indicated that it believes these goals are best achieved
not  by throwing out presumptive sentencing, but by altering  the
pre-2005 sentencing procedures to incorporate the right  to  jury
trial announced in Blakely.
          When  the  superior  court decided Morenos  case,  this
court  had  yet  to  issue many of our decisions  clarifying  the
effect  of  Blakely on Alaskas presumptive sentencing  laws.   In
particular,  this court had not issued Cleveland  v.  State,9  in
which  we explained how Alaskas pre-2005 law differed in  crucial
ways  from the types of presumptive sentencing laws at  issue  in
Blakely and in United States v. Booker.10  Nor had we issued  our
decision  in  State v. Dague,11 in which we held that aggravating
factors  need not be charged in the indictment, and in  which  we
addressed  many  of  the potential constitutional  objections  to
having  a  second jury trial to resolve aggravating factors  that
were not originally proved in conformity with Blakely.
          Thus, even though the constitutional difficulties posed
by  the  pre-2005  presumptive sentencing law may  have  appeared
insurmountable  in late 2004 when the superior court  issued  its
ruling  in Morenos case, the legal situation looks much different
          It is now clear that there are many situations in which
Alaskas  pre-March 2005 presumptive sentencing law can be applied
without violating Blakely.  The Blakely right to jury trial  does
not apply to aggravating factors that are based on the defendants
prior convictions, nor does it apply to aggravating factors  that
flow directly from the trial jurys verdicts, nor does it apply to
aggravating   factors  that  are  expressly   conceded   by   the
defendant.12  And, as we explained in Cleveland, the proof  of  a
single Blakely-compliant aggravating factor was sufficient  under
the  former  law to authorize the superior court  to  exceed  the
presumptive term of imprisonment for that offense.13
          Moreover,  in cases where there is no Blakely-compliant
aggravating  factor, and Blakely requires that a  jury  trial  be
held  on  the  States proposed aggravators, a jury trial  on  the
aggravators  is  a  permissible procedure.14  And,  as  explained
above,  the Alaska legislature endorsed this same procedure  when
it enacted the current version of presumptive sentencing.
          Moreno argues that the concept of severability does not
allow  a  court to fashion a remedial procedure or interpretation
to  cure  the  constitutional infirmity in  a  statute.   Rather,
Moreno argues, severability is limited to the subtraction of  the
offending statutory provisions or applications, and then  dealing
with  whatever remains.  In the present case, Moreno argues  that
what remains is a presumptive sentencing scheme that has no valid
procedure  for  proving aggravating factors  which,  in   Morenos
view,  means  that  we must decide whether the legislature  would
still want presumptive sentencing if no aggravating factors could
ever be proved.
          We  disagree.   It is within our judicial authority  to
alter  litigation  procedures  to ensure  that  they  conform  to
constitutional  guarantees.   In particular,  it  is  within  our
authority  to  order  that defendants receive  a  jury  trial  on
proposed aggravating factors that are not Blakely-compliant.
          The  Alaska Supreme Court faced a similar situation  in
R.L.R.  v. State.15  At the time of the R.L.R. litigation, former
AS  47.10.070 specified that all juvenile delinquency proceedings
in  Alaska  were to be adjudicated by a judge sitting  without  a
jury.16  In R.L.R., the Alaska Supreme Court held that, under the
due  process  and  equal  protection  guarantees  of  the  Alaska
Constitution,  the right to jury trial guaranteed by  Article  I,
Section  11  of  the Alaska Constitution had to  be  extended  to
juveniles  who  are charged with acts of delinquency  that  would
constitute jailable criminal offenses if committed by an adult.17
That  is, former AS 47.10.070 was unconstitutional to the  extent
that it specified trial by judge.
          Under  Morenos view of severability, the supreme  court
should  then  have declared the entire juvenile  delinquency  law
unconstitutional, and should have enjoined all delinquency trials
until  the  legislature  redrafted AS 47.10  to  conform  to  the
supreme  courts  expansion of the right to jury trial.   But,  of
course,  that  did  not happen.  Instead, AS  47.10  remained  in
force,  and delinquency trials continued  but with the  juveniles
now receiving their constitutionally mandated trial by jury.
          This same principle applies to the present case.  Under
Blakely,  the defendants who faced sentencing under the pre-March
2005  version of Alaskas presumptive sentencing law were entitled
to  trial by jury with respect to many of the aggravating factors
listed  in  AS 12.55.155(c).  The solution, however,  is  not  to
jettison presumptive sentencing.  Rather, the solution is to give
these   defendants   the   jury   trial   to   which   they   are
constitutionally entitled.
          For   this  reason,  we  reject  the  superior   courts
conclusion  that  the  pre-2005  presumptive  sentencing  law  is
irremediably  flawed.   We  uphold the  pre-2005  law   with  the
proviso  that defendants must receive a jury trial on aggravating
factors if mandated by Blakely.
          The  ruling  of the superior court  that  Alaskas  pre-
March  2005  presumptive sentencing law is unconstitutional,  and
that  indeterminate sentencing must be reinstated  for  all  pre-
March  2005  offenses   is REVERSED.  The  superior  court  shall
sentence  Moreno  in  accordance with  the  pre-2005  presumptive
sentencing law, modifying any procedures as necessary  to  comply
          with Blakely.

  1 AS 11.41.434(a)(1).

  2  Former  AS 12.55.125(i)(1) (Moreno was convicted  under  the
pre-September 2003 version).

3 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

  4 Former AS 12.55.125(I) (pre-September 2003 version).

  5 Former AS 12.55.155(f) (pre-March 2005 version).

  6  See,  e.g.,  Sonneman v. Hickel, 836 P.2d 936,  940  (Alaska

  7  Lynden  Transp., Inc. v. State, 532 P.2d  700,  711  (Alaska
1975).   This  intent is  bolstered by the rule of interpretation
that statutes should be construed if reasonably possible so as to
avoid a conclusion that they are unconstitutional.  Sonneman, 836
P.2d at 940.

  8 Ch. 2,  1, SLA 2005.

  9 143 P.3d 977 (Alaska App. 2006).

  10543  U.S.  220, 244, 125 S. Ct. 738, 756, 160 L. Ed.  2d  621

  11143 P.3d 988 (Alaska App. 2006).

  12Cleveland, 143 P.3d at 981-83.

  13Id. at 988.

  14Dague, 143 P.3d at 1010-14.

15487 P.2d 27 (Alaska 1971).

  16The  statute  read, in pertinent part:   All  hearings  under
this chapter are without a jury ... .  See R.L.R., 487 P.2d at 29

  17R.L.R., 487 P.2d at 32-33.

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