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Cooper v. State (3/9/2007) ap-2087

Cooper v. State (3/9/2007) ap-2087

     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-9426
Appellant, ) Trial Court No. 3KN-03-1984 Cr
v. )
) O P I N I O N
Appellee. ) No. 2087 March 9, 2007
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kenai, Harold M. Brown, Judge.

          Appearances:   Dan S. Bair, Assistant  Public
          Advocate,   and  Chad  W.  Holt,  Supervising
          Assistant Public Advocate, Anchorage, for the
          Appellant.   Tamara  E. de  Lucia,  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.

          Jeremy  L. Cooper was convicted of first-degree robbery
and  second-degree assault.  Cooper was a second felony offender,
having previously been convicted of third-degree assault.   As  a
consequence of this prior felony conviction, Cooper faced  a  10-
year  presumptive  term  of  imprisonment  for  the  first-degree
robbery  conviction and a 4-year presumptive term of imprisonment
for the second-degree assault conviction (under Alaskas pre-March
2005 presumptive sentencing law).1
          The  State  alleged  one aggravating  factor  under  AS
12.55.155(c):  (c)(20)  that Cooper had been on felony  probation
or parole (from his prior conviction for third-degree assault) at
the time he committed his present crimes.
          Even  though Coopers sentencing proceedings took  place
in the summer of 2005  i.e., long after the United States Supreme
Court decided Blakely v. Washington2  Cooper did not contest  the
States proposed aggravator, nor did he ask the superior court  to
schedule a jury trial on this aggravator.
          In Coopers pre-sentencing brief (which was filed in May
2005),  his attorney conceded this aggravator.  In fact,  Coopers
attorney pointed out that, based on Coopers commission of the two
new  felonies, the superior court had already found  that  Cooper
had  violated  the  conditions of his probation  from  the  prior
felony.    And  at  Coopers  sentencing  hearing,  his   attorney
expressly  told Superior Court Judge Harold M. Brown that  Cooper
was willing to stipulate that aggravator (c)(20) was proved:
               The Court [to the defense attorney]:  If
          I  read your sentencing brief correctly,  you
          are willing to stipulate to the existence  of
          aggravator [(c)](20) ... , that [Cooper]  was
          ... on parole or probation for another felony
          charge   specifically, his  prior  conviction
          for assault in the third degree.

     Defense Attorney:  That is correct, Your

          Based  on this aggravating  factor,
Judge   Brown  added  3  years  of  suspended
imprisonment  to Coopers 10-year  presumptive
term  for  the robbery conviction;  that  is,
Judge Brown sentenced Cooper to 13 years with
3  years  suspended.   Judge  Brown  did  not
increase Coopers 4-year presumptive term  for
the    second-degree   assault    conviction;
moreover, the judge imposed this 4-year  term
of imprisonment concurrent to Coopers robbery
          On  appeal,  Cooper  contends  that
Judge   Brown  committed  plain  error  under
Blakely  when the judge accepted the  defense
attorneys  concession of aggravator  (c)(20),
rather  than  addressing Cooper  himself  and
asking  Cooper  whether he,  personally,  was
willing  to waive his right to jury trial  on
this aggravator.  Cooper concedes that he did
not  raise this claim in the superior  court,
and  that he therefore must show plain  error
on appeal.
          In  Paige v. State, 115 P.3d  1244,
1248  (Alaska App. 2005), a case  that  dealt
with  a pre-Blakely sentencing, we held  that
          the sentencing judge did not commit plain
error under Blakely when the judge relied  on
an   aggravating  factor  that  the   defense
attorney    conceded.    Coopers   sentencing
occurred after Blakely, but we reach the same
conclusion:  Judge Brown did not commit plain
error when he relied on the defense attorneys
concession of aggravator (c)(20).
          Even  though  one might  reasonably
argue that, after Blakely, a sentencing judge
must  personally  address the  defendant  and
obtain a knowing waiver of the right to  jury
trial,3 this is only one potential resolution
of  the  issue.  Several courts have rejected
this  argument.   See  Chupp  v.  State,  830
N.E.2d  119,  126 n. 12 (Ind. App.  2005)  (a
defendants  failure to object to  information
contained  in  the  pre-sentence  report   is
tantamount to an admission [of] the  accuracy
of  the  facts contained therein for purposes
of  Blakely); Caron v. State, 824 N.E.2d 745,
755  (Ind.  App. 2005) (there was no  Blakely
error  when the defense attorney acknowledged
the accuracy of pertinent information recited
in   the  pre-sentence  report);  Trusley  v.
State,  829  N.E.2d 923, 925-26  (Ind.  2005)
(holding that the defense attorneys statement
during  the  plea  colloquy  constituted   an
admission  of  fact relevant to the  sentence
enhancement); State v. Leake, 699 N.W.2d 312,
324-25 (Minn. 2005) (the sentencing judge did
not  violate  Blakely  by  relying  on  facts
admitted by the defendant as part of  a  plea
agreement); State v. Miranda-Cabrera, 99 P.3d
35,  41-42 (Ariz. App. 2004) (holding that  a
defendants    admissions   at   trial    were
admissions of fact for purposes of Blakely).
          Thus,  Coopers  position  in   this
appeal is no more than debatable.  Reasonable
judges   could   differ  as  to   whether   a
sentencing  judge must obtain the  defendants
personal  waiver of the right to  jury  trial
with  regard to aggravating factors when  the
existence  of those aggravators is  expressly
conceded,  or  when  the  existence  of   the
aggravators is plain from the record  and  is
not  disputed.  And because reasonable judges
could  differ as to what the law requires  in
this  situation, Judge Brown did  not  commit
plain  error  when he relied on  the  defense
attorneys concession of aggravator (c)(20).4
          Moreover,  Coopers claim  of  plain
error  fails for another reason.  Cooper  has
never  disputed  that he  was,  in  fact,  on
felony probation and/or parole at the time he
          committed the offenses in this case.  In
other   words,   there   is   no   reasonable
possibility  that, if aggravator (c)(20)  had
been submitted to a jury, the jury would have
found in Coopers favor on this issue.
          In  Snelling  v.  State,  123  P.3d
1096,  1098-99  (Alaska App. 2005),  we  held
that,  in  such  circumstances,  any  Blakely
error   in   failing  to  present  aggravator
(c)(20)  to  a  jury  is  harmless  beyond  a
reasonable doubt, and thus the error does not
require   alteration  or  vacation   of   the
defendants   sentence.    Our   decision   in
Snelling is dispositive of Coopers claim.
          The judgement of the superior court

     1See  AS  11.41.500(b) (first-degree robbery is  a  class  A
felony);  former  AS  12.55.125(c)(3)  (pre-March  2005  version)
(specifying   a  10-year  presumptive  term  for  second   felony
offenders convicted of a class A felony); AS 11.41.210(b) (second-
degree  assault  is a class B felony); former AS  12.55.125(d)(1)
(pre-March  2005  version) (specifying a 4-year presumptive  term
for second felony offenders convicted of a class B felony).

     2542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

3Compare McGlauflin v. State, 857 P.2d 366, 369 (Alaska App.
1993)  (It  may seem natural to assume that a defendant
would  make  a decision of this importance  only  after
consulting with defense counsel, and that any competent
defense  attorney would carefully explain the right  to
jury  trial and the reasons why, in a particular  case,
it might further the defendants interests to waive this
right.  Nevertheless, ... the rule [in Alaska is]  that
a defendants waiver of jury trial cannot be upheld upon
such an assumption; instead, the record must explicitly
demonstrate   that   the   defendant   understood   and
personally relinquished the right to trial by jury.)

4See, e.g., Simon v. State, 121 P.3d 815, 820 (Alaska App.
2005):   To be plain error, an error must be so obvious
that   any  competent  judge  or  attorney  would  have
recognized  it.   If  a  claim of error  is  reasonably
debatable   if reasonable judges could differ  on  what
the  law  requires  then a claim of plain error  fails.
(Footnotes omitted)

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