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Billum v. State (12/22/2006) ap-2079

Billum v. State (12/22/2006) ap-2079

     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-9004
Appellant, ) Trial Court No. 3VA-94-27 CR
v. )
) O P I N I O N
Appellee. ) No. 2079 December 22, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Valdez, Donald  D.  Hopwood,

          Appearances:   Linda  K.  Wilson,   Assistant
          Public  Defender,  and  Quinlan  Steiner  and
          Barbara    K.    Brink,   Public   Defenders,
          Anchorage,  for  the  Appellant.   Diane   L.
          Wendlandt, Assistant Attorney 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.

          In  February 1994, Steven A. Billum drove while he  was
intoxicated,  caused an accident, and injured four  people.   For
this  conduct,  Billum  was convicted of  four  felonies:   three
counts  of  first-degree  assault (for seriously  injuring  three
people)  and one count of third-degree assault (for injuring  the
fourth person).1  In addition, Billum was convicted on a plea  of
no  contest of misdemeanor driving while intoxicated and  driving
while his license was suspended or revoked.2
          As  a first felony offender, Billum faced a presumptive
term of 5 years imprisonment on each of the three counts of first-
degree  assault (a class A felony).3  Based in part  on  evidence
that  Billum  had  been explicitly warned not to  drive,  Billums
sentencing  judge, Superior Court Judge Glen C.  Anderson,  found
that   the   State   had  proved  one  aggravating   factor,   AS
12.55.155(c)(10)  (Billums conduct was  among  the  most  serious
within the definition of first-degree assault).  The presence  of
this aggravating factor authorized Judge Anderson to exceed the 5-
year  presumptive term and impose any sentence up to the  20-year
maximum term for a class A felony.4
          Based   on   the  aggravating  factor,  Judge  Anderson
increased  Billums sentence on one count of first-degree  assault
by  adding  5  suspended years of imprisonment;  that  is,  Judge
Anderson  sentenced Billum to 10 years with 5 years suspended  on
this count.  On the remaining two counts of first-degree assault,
Judge  Anderson  sentenced Billum to the  unadjusted  presumptive
term  of  years.  Finally, the judge sentenced Billum to 2  years
with  1  year  suspended on the third-degree assault  conviction.
The  judge  ran  all four sentences concurrently.  Thus,  Billums
composite  sentence  on these four counts was  the  same  as  his
sentence on Count I:  10 years with 5 years suspended.
          Billum  appealed his convictions  which we affirmed  in
Billum  v. State,5  but he did not appeal his sentence.  However,
after  the  United States Supreme Court issued  its  decision  in
Blakely  v.  Washington,6  Billum filed  a  motion  under  Alaska
Criminal Rule 35(a), seeking a correction of his sentence.
          In  this motion, Billum argued that he had been  denied
his  Sixth  Amendment  right to jury  trial  (as  interpreted  in
Blakely) because Judge Anderson had decided aggravator (c)(10) by
himself,  rather than submitting the aggravator to  a  jury,  and
because  Judge  Anderson had employed the  clear  and  convincing
evidence  standard  of  proof specified  by  Alaskas  presumptive
sentencing  law,7  rather  than the  beyond  a  reasonable  doubt
standard required by Blakely.
          Because  Judge  Anderson had retired  in  the  interim,
Billums  motion  was assigned to Superior Court Judge  Donald  D.
Hopwood.   Judge  Hopwood  ruled that defendants  could  not  use
Criminal  Rule 35(a) to attack their sentences based  on  Blakely
violations.   He  further ruled that the Blakely  right  to  jury
trial  was  not  retroactive   that  is,  it  did  not  apply  to
defendants whose convictions were already final when Blakely  was
decided.  Accordingly, Judge Hopwood denied Billums motion.
          Since  the time that Judge Hopwood issued his decision,
we  held in Walsh v. State8 that Criminal Rule 35(a) is a  proper
procedural  vehicle for raising a Blakely attack on a  sentence.9
We  have also held in Smart v. State10 that the Blakely right  to
jury trial is retroactive under Alaska law.11  Thus, the superior
court  should  have reached the merits of Billums  Criminal  Rule
35(a) motion.
          However, in Washington v. Recuenco,12 the United States
Supreme Court held that a Blakely error will not require reversal
of  a  defendants sentence if the error is shown to  be  harmless
beyond a reasonable doubt.13  In Billums case, even though it may
have  been  error  for Judge Anderson to find aggravator  (c)(10)
without  submitting this issue to a jury, the record  shows  that
this error was harmless beyond a reasonable doubt.
          The  transcript of Billums original sentencing  hearing
demonstrates  that Judge Anderson consciously structured  Billums
three  first-degree  assault sentences  to  achieve  a  composite
result    10  years  with  5  years  suspended.   Judge  Anderson
concluded  that  the time to serve component of Billums  sentence
did not need to exceed the 5-year presumptive term, but the judge
added  a  5-year suspended term of imprisonment to  deter  Billum
from future misconduct.
          Judge Anderson elected to reach this composite sentence
by   using  aggravator  (c)(10)  to  add  5  suspended  years  of
imprisonment  to  Billums sentence on Count I, and  then  running
Billums  two  other first-degree assault sentences  concurrently.
However,  Judge  Anderson could just as easily have  reached  the
same composite sentence without resort to aggravating factors and
sentence enhancements.
          Billum  faced a 5-year presumptive term on each of  his
three  convictions for first-degree assault.  Judge Anderson  had
the   authority   to   impose  these  three   presumptive   terms
concurrently, consecutively, or partially consecutively.14  And we
have held that the Blakely right to jury trial does not extend to
a  judges decision to impose sentences consecutively (as  opposed
to concurrently).15
          Thus,   Billums   sentencing  was   governed   by   the
interpretation of the presumptive sentencing law that this  Court
announced in Griffith v. State.16  In Griffith, we held that if a
judge is sentencing a defendant for two or more offenses governed
by  presumptive  sentencing (i.e., offenses  that  each  carry  a
presumptive  term  of imprisonment), and if  the  judge  has  the
discretion   to   impose   the   defendants   sentences    either
consecutively  or  concurrently, then  the  judge  also  has  the
authority to impose these presumptive terms consecutively but  to
suspend some or all of the presumptive terms  so long as the time
to  serve  component of the defendants composite sentence  is  at
least  as  great as the single longest presumptive term to  which
the defendant is subject.17
          Applying this rule to Billums case, Judge Anderson  had
the  authority   even in the absence of aggravating  factors   to
impose  the  5-year  presumptive term on each  of  Billums  three
          convictions for first-degree assault, and to order that one of
these presumptive terms would run consecutively to the other two,
and then to suspend this consecutive 5-year term.
          The  resulting composite sentence is the same one  that
Billum   received:   10  years  with  5  years  suspended.    The
difference  is  that, configured in this manner, Judge  Andersons
authority  to impose this composite sentence does not  depend  on
the  existence of aggravating factors or any other issue of  fact
governed by Blakely.
          The sentencing record shows that Judge Anderson did not
concentrate on Billums individual sentences for the three  counts
of  first-degree  assault.  Rather, he  focused  on  achieving  a
composite  sentence of 10 years with 5 years  suspended.   It  is
wholly  fortuitous  that Judge Anderson  chose  to  achieve  this
composite sentence by adding 5 suspended years of imprisonment to
Count  I,  rather than imposing a consecutive 5-year sentence  on
either Count II or Count III and then suspending this consecutive
          If  we were not completely convinced of Judge Andersons
intention to create a certain composite sentence, we would remand
for  resentencing.  However, in this case, the record  is  clear.
Under  Griffith, Judge Anderson had the authority to impose  this
same  composite term without relying on aggravating  factors,  so
any  Blakely error with respect to aggravator (c)(10) is harmless
beyond a reasonable doubt.19
          However,  if Billum wishes, he is technically  entitled
to  have  his  judgment amended.  Currently, the judgment  states
that  Billum  received  a  sentence of  10  years  with  5  years
suspended  on  Count  I, and that he received  concurrent  5-year
terms on Counts II and III.  As we have explained here, Billum is
entitled  to have the judgment rewritten so that it reflects  the
imposition of the unadjusted 5-year presumptive term on all three
counts, with the 5-year sentence on either Count II or Count  III
running  consecutively to the sentences on the other two  counts,
and with this consecutive sentence suspended.

          The judgment of the superior court is AFFIRMED, subject
to  Billums  right to seek amendment of the written  judgment  as
explained in the preceding paragraph.
     1 AS 11.41.200(a) and 11.41.220(a), respectively.

     2 Former AS 28.35.030(a) and AS 28.15.291(a), respectively.

     3  Former  AS  12.55.125(c)(1) (pre-March 2005 version),  as
interpreted  in Pruett v. State, 742 P.2d 257, 263  (Alaska  App.

     4 Former AS 12.55.155(a)(2) (pre-March 2005 version).

     5 Alaska App. Memorandum Opinion and Judgment No. 3381 (Apr.
24, 1996), 1996 WL 341792.

     6 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

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

     8 134 P.3d 366 (Alaska App. 2006).

     9 Id. at 373-74.

     10 __ P.3d __, Alaska App. Opinion No. 2070 (Oct. 27, 2006),
2006 WL 3042821.

     11 Id. at 3, 2006 WL 3042821 at *1.

     12 __ U.S. __, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).

     13 Id., ___ U.S. at ___, 126 S. Ct. at 2252-53.

     14 Former AS 12.55.025(e) and (g) (pre-March 2005 versions).

     15  Vandergriff  v. State, 125 P.3d 360,  363  (Alaska  App.

     16 675 P.2d 662 (Alaska App. 1984).

     17 Id. at 665.

     18  See  Allain v. State, 810 P.2d 1019, 1022  (Alaska  App.

     19 Id.

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