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Woodbury v. State (1/26/2007) ap-2081

Woodbury v. State (1/26/2007) ap-2081

     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-9402
Appellant, ) Trial Court No. 3PA-04-1355 Cr
v. )
) O P I N I O N
) No. 2081 January 26, 2007
Appellee. )
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:   Linda  K.  Wilson  and  Morgan
          White,   Assistant  Public   Defenders,   and
          Quinlan  Steiner, Public Defender, 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.

          MANNHEIMER, Judge.

          In 2004, the State charged William Robert Woodbury with
felony  driving under the influence and driving while his license
was   suspended  or  revoked.1   These  charges  were  ultimately
resolved  with  a  plea bargain.  Under the terms  of  this  plea
bargain,  Woodbury agreed to plead no contest to the  felony  DUI
          charge.  In addition, Woodbury agreed that he would receive the
maximum  term of imprisonment for that offense  5 years,  all  to
serve  and that his vehicle would be forfeited to the State.  The
State, for its part, agreed to dismiss the charge of driving with
a suspended or revoked license.
          But  when  the  parties appeared in front  of  Superior
Court  Judge  Eric  Smith  for  Woodburys  change  of  plea   and
sentencing, Judge Smith noted a potential problem with  the  plea
agreement:  Woodbury was a third felony offender convicted  of  a
class  C  felony,  and  he was therefore subject  to  presumptive
sentencing.   Specifically, Woodbury  was  subject  to  a  3-year
presumptive  term  of  imprisonment.2  Under Alaskas  presumptive
sentencing  law  (the pre-March 2005 version of  that  law),  the
judge could not sentence Woodbury to the agreed-upon 5-year  term
of  imprisonment unless the State proved one or more  aggravating
          Woodburys  case  was  recessed briefly,  and  when  the
parties again stood in front of Judge Smith, the defense attorney
announced  that Woodbury wanted to go forward with the agreement.
Woodbury  then  told Judge Smith that he had  been  on  mandatory
parole  from a prior felony when he committed the present  crime.
That  is, Woodbury conceded aggravator AS 12.55.155(c)(20)   thus
allowing  Judge Smith to exceed the 3-year presumptive  term  and
impose the agreed-upon sentence:  5 years imprisonment.
          Woodburys  sentencing occurred in August 2004   several
weeks  after  the  United  States  Supreme  Court  announced  its
decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct.  2531,
159  L.Ed.2d 403 (2004).  At the time of his sentencing, Woodbury
did  not  raise any Blakely objection to Judge Smiths finding  of
aggravator (c)(20).  However, nearly a year later (in July 2005),
Woodbury filed a motion to correct his sentence.  In this motion,
Woodbury argued that Judge Smith had abridged his right to  trial
by  jury  when  the  judge  found  aggravator  (c)(20)  based  on
Woodburys  stipulation that he had been on felony parole  at  the
time  of  his  offense.  As a consequence, Woodbury  argued,  his
sentence  should be reduced to the 3-year presumptive  term  that
would  have  been  the  sentencing  ceiling  in  the  absence  of
aggravating factors.
          In  ruling on Woodburys motion, Judge Smith noted  that
Woodbury  had  not  raised a Blakely objection  at  the  time  of
sentencing.    The  judge  then  concluded  that  any   potential
violation of Blakely in Woodburys case would not constitute plain
          Judge  Smith noted that Woodbury had expressly conceded
aggravator (c)(20) at the sentencing hearing.  The judge  further
noted that, even after filing the motion to correct his sentence,
Woodbury still did not dispute that he had been on felony  parole
at  the  time  he  committed the offense.  Judge Smith  concluded
that,  even  if this factual question were to be submitted  to  a
jury,  no  reasonable  jury  would  find  otherwise.   For  these
reasons,  Judge  Smith  denied Woodburys motion  to  correct  his
          Woodbury now appeals Judge Smiths ruling.
          Woodbury first argues that, because of the decision  in
Blakely, all aggravating factors must be deemed elements  of  the
          offense.  We recently rejected this argument in State v. Dague,
143 P.3d 988 (Alaska App. 2006).
          Woodbury  next argues that, whether or not  aggravators
are  elements of the offense, the Blakely decision requires  that
all  aggravators  be proved to a jury beyond a reasonable  doubt.
This assertion is only partially true.
          Blakely holds that, generally speaking, a defendant  is
entitled to a jury trial on any issue of fact (other than a prior
conviction) which, if found against the defendant, will raise the
defendants  potential  maximum sentence.  But  when  a  defendant
fails  to  raise  a  contemporaneous Blakely objection  to  their
sentencing proceedings, the defendant must demonstrate  that  the
Blakely flaw amounted to plain error.3
          In   Woodburys  case,  it  is  not  evident  that   his
sentencing was flawed by a Blakely error.  Blakely holds  that  a
sentencing  judge  can  rely  on  aggravating  factors  expressly
conceded  by  the  defendant.4   That  is  what  happened   here:
Woodbury  expressly conceded aggravator (c)(20)  that he  was  on
felony probation or parole at the time of his present offense.
          Woodbury  argues  that he should not  be  held  to  his
concession.   He  argues  that when he stipulated  to  aggravator
(c)(20),  he was essentially waiving his right to jury  trial  on
this aggravator.  Accordingly, Woodbury contends, Judge Smith was
obliged  to formally advise Woodbury of his right to jury  trial,
and  to have Woodbury formally waive that right, before the judge
could accept Woodburys concession of aggravator (c)(20).
          There is some case law to support this argument.5   But
many   courts  have  rejected  this  attempt  to  draw  a  strict
equivalence between the Blakely right to jury trial on sentencing
factors  and the general right to trial by jury on the underlying
offense.    These  courts  have  held  that,  under  Blakely,   a
defendants  express  admissions  (even  statements  made  by  the
defendant during the discussion of the proposed plea), as well as
a  defendants  implied  admissions (for example,  the  defendants
failure  to object to statements in the pre-sentence report)  can
properly  be  relied  on  by  a  sentencing  judge  when  finding
aggravating  factors.6   And because courts  are  split  on  this
issue,  Woodbury  can not show that Judge Smith  committed  plain
error  when  he  accepted  Woodburys   concession  of  aggravator
          As  this  Court has repeatedly explained, an  error  is
plain  only if the error is so obvious that any reasonable  judge
would  have perceived the error and taken action to correct  it.7
For  this  reason,  a  claim of plain error fails  if  reasonable
judges  could  differ  as to what the law requires.8   Given  the
state  of the law when Woodbury was sentenced  indeed, given  the
state  of  the law today  Judge Smith did not commit plain  error
when he relied on an aggravator that Woodbury expressly conceded.
          Moreover, as Judge Smith noted when he denied Woodburys
motion  to correct the sentence, Woodbury has never disputed  the
fact  that  he was on felony parole at the time he committed  the
present offense.  We have repeatedly held that a Blakely error is
harmless  if  the underlying facts are not in dispute   so  that,
even  if the factual issue were to be presented to a jury,  there
is  no  reasonable  possibility that a jury  would  find  in  the
          defendants favor.9  Thus, in Tyler v. State, we held that any
Blakely  error  with respect to aggravator (c)(20)  was  harmless
beyond a reasonable doubt, given the fact that the defendant  did
not dispute that he was on felony parole or probation at the time
of his offense.10
          In Woodburys brief to this Court, his attorneys suggest
that Woodbury did not really concede that he was on felony parole
at  the  time of his offense.  According to Woodburys  attorneys,
Woodbury  merely told Judge Smith that he had been on  parole  at
some  prior, unspecified time.  This argument completely  ignores
the context in which Woodbury spoke to Judge Smith.
          As  explained  above, Woodburys plea bargain  with  the
State  came  up against an unforeseen obstacle when  Judge  Smith
pointed out that the agreed-upon sentence  5 years to serve   was
legally  impossible unless one or more aggravating  factors  were
proved.   The  parties took some time to confer,  and  when  they
returned to court, Woodbury announced, I was on mandatory parole.
His attorney then said, He was on parole.
          It is true that Woodbury never uttered the words at the
time of this offense, nor did he specify that his parole was  for
a  felony  that  qualified  as a prior  felony  for  purposes  of
presumptive sentencing as defined in AS 12.55.145(a)(1)(B).   But
in  context,  it  is  clear that Woodbury and his  attorney  were
asserting  that  the  plea  agreement could  go  forward  because
aggravator  (c)(20)  was present  i.e., the  contemplated  5-year
sentence  could  lawfully  be imposed because,  at  the  time  of
Woodburys offense, he was on felony parole.
          If   Woodbury   wished  to  retract  or   modify   this
concession,  he had the opportunity to do so when  he  filed  his
extensive  motion to correct his sentence.  But  as  Judge  Smith
pointed out, Woodbury never suggested that he really had not been
on  felony parole at the time of his offense.  Thus, any  Blakely
error was harmless beyond a reasonable doubt.
          In  addition  to the points we have already  discussed,
there  is  one  more reason why any potential  Blakely  error  in
Woodburys sentencing proceedings would not be plain error:  these
proceedings involved a plea bargain.
          Woodburys  5-year  sentence was an element  of  a  plea
bargain  that  he negotiated with the State.  In  his  motion  to
correct his sentence, Woodbury asked Judge Smith (1) to hold  the
State  to  its side of the bargain, but at the same time  (2)  to
reduce  Woodburys agreed-upon sentence from 5  years  down  to  3
          To  prove  plain error, a defendant must show that  the
error was so prejudicial to the fairness of the proceedings  that
failure  to  correct  it  would perpetuate manifest  injustice.11
Here, if Judge Smith had granted Woodburys motion to correct  his
sentence, this would have created injustice, not cured it.
          When,  as  in  Woodburys case, a  defendant  wishes  to
challenge  an  already  consummated  plea  agreement   as   being
unlawful,  the  defendant must seek rescission of  the  agreement
not  selective enforcement of only those provisions favorable  to
the  defendant.  We addressed a similar situation in  Grasser  v.
State, 119 P.3d 1016 (Alaska App. 2005):
If  Grasser now believes that he agreed to an
illegal procedure or an illegal sentence when
he  negotiated  his  plea  bargain  with  the
State, his proper course of action is to  ask
the  [trial]  court to allow him to  withdraw
his  pleas  (i.e., rescind the plea bargain).
Because  Grasser negotiated a plea  agreement
with  the  government,  and  because  he  was
sentenced  under the terms of that agreement,
Grasser can not now claim the benefit of  the
portions  of  the  agreement  that  he  likes
while,   at   the  same  time,  mounting   an
appellate attack on the portions that he does
not like.

Grasser, 119 P.3d at 1018.
          For   all  of  these  reasons,   we
conclude  that  the superior court  correctly
denied   Woodburys  motion  to  correct   his
sentence.   The  judgement  of  the  superior
court is AFFIRMED.

     1AS 28.35.030(n) and AS 28.15.291(a), respectively.

2Former AS 12.55.125(e)(2) (pre-March 2005 version).

3See  Tyler  v.  State,  133 P.3d 686, 688  (Alaska  App.  2006);
Haag  v.  State, 117 P.3d 775, 783 (Alaska App. 2005);  Paige  v.
State, 115 P.3d 1244, 1248 (Alaska App. 2005).

     4Blakely  v. Washington, 542 U.S. 296, 303; 124 S.Ct.  2531,
2537; 159 L.Ed.2d 403 (2004).

     5See State v. Barker, 705 N.W.2d 768, 773-74 (Minn. 2005).

     6See  Chupp  v. State, 830 N.E.2d 119, 126 n.12  (Ind.  App.
2005); State v. Leake, 699 N.W.2d 312, 324-25 (Minn. 2005); State
v. Miranda-Cabrera, 99 P.3d 35, 41-42 (Ariz. App. 2004).

     7See, e.g., Massey v. State, 771 P.2d 448, 453 (Alaska  App.
1989);  Carman  v. State, 658 P.2d 131, 137 (Alaska  App.  1983);
Marrone v. State, 653 P.2d 672, 675-76 (Alaska App. 1982).

     8Heaps v. State, 30 P.3d 109, 116 (Alaska App. 2001); Hansen
v. State, 845 P.2d 449, 457 (Alaska App. 1993); Marrone v. State,
653 P.2d 672, 676 (Alaska App. 1982).

     9Tyler  v.  State,  133 P.3d 686, 689  (Alaska  App.  2006);
Snelling  v.  State,  123  P.3d 1096, 1099  (Alaska  App.  2005);
Milligrock v. State, 118 P.3d 11, 17 (Alaska App. 2005).

     10Tyler, 133 P.3d at 689.

     11Hosier v. State, 1 P.3d 107, 112 n. 11 (Alaska App. 2000);
Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985).

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