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Lockuk v. State (3/16/2007) ap-2090

Lockuk v. State (3/16/2007) ap-2090

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-9534
Appellant, ) Trial Court No. 3DI-01-488 Cr
v. )
) O P I N I O N
Appellee. ) No. 2090 March 16, 2007
          Appeal  from the Superior Court,  Third  Judi
          cial   District,  Dillingham,  Fred  Torrisi,

          Appearances:    David  W.   Miner,   Seattle,
          Washington,  for the Appellant.   Douglas  H.
          Kossler,  Assistant Attorney General,  Office
          of    Special   Prosecutions   and   Appeals,
          Anchorage,  and  David W.  Márquez,  Attorney
          General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          In  2002, Saul Lockuk Sr. was convicted of third-degree
assault.   This crime is a class C felony with a maximum sentence
of  5  years  imprisonment.1  Because Lockuk was a  first  felony
offender,    his    sentencing    was    governed    by    former
AS 12.55.125(k)(2).  This statute provided that the time to serve
component   of  Lockuks  sentence  could  not  exceed   2   years
imprisonment (the presumptive term that would apply to  a  second
felony offender convicted of the same offense2) unless the  State
          proved one or more of the aggravating factors listed in AS
12.55.155(c)  or  extraordinary circumstances as  defined  in  AS
          In  order to justify a sentence of more than 2 years to
serve, the State proposed four aggravating factors:  (c)(8)  that
Lockuks   criminal  history  included  aggravated   or   repeated
instances  of assaultive behavior; (c)(9)  that Lockuk knew  that
his  offense involved more than one victim; (c)(21)  that  Lockuk
had  a  history of criminal acts similar in nature to his current
offense; and (c)(28)  that Lockuks offense was directed against a
person  who  had  provided testimony or  other  evidence  against
Lockuk in another criminal proceeding.
          The  States  proof  of aggravating factors  (c)(8)  and
(c)(21)   rested  on  the  fact  that  Lockuk  had  seven   prior
convictions  for  misdemeanor  assault,  as  well  as  one  prior
conviction for resisting arrest.
          At  Lockuks  sentencing hearing, the parties  discussed
the  States  proposed aggravators.  Lockuks attorney objected  to
aggravators  (c)(9) and (c)(28), but he offered no  objection  to
aggravators (c)(8) and (c)(21)  that is, the two aggravators that
were based on Lockuks prior convictions.
          Superior Court Judge Fred Torrisi found that the  State
had proved three of its four proposed aggravators:  (c)(8) (prior
assaultive   conduct);  (c)(21)  (history  of  similar   criminal
offenses); and (c)(28) (offense committed upon a person  who  had
previously offered evidence against the defendant).
          Employing  the sentencing authority afforded  by  these
aggravating factors, Judge Torrisi sentenced Lockuk  to  5  years
imprisonment with 1 year suspended (i.e., 4 years to serve).
          Lockuks  sentencing took place at the end of May  2002.
Two  years  later, in June 2004, the United States Supreme  Court
issued  its decision in Blakely v. Washington, 542 U.S. 296,  124
S.Ct.  2531,  159  L.Ed.2d 403 (2004).  In Blakely,  the  Supreme
Court   held   that  the  Sixth  Amendment  guarantees   criminal
defendants the right to jury trial (and the right to demand proof
beyond  a  reasonable doubt) on any issue of fact  other  than  a
prior conviction  which, if resolved against the defendant, would
subject  the  defendant to a higher maximum sentence  than  would
otherwise be authorized by the jurys verdict.
          In  October  2005, Lockuk filed a motion  under  Alaska
Criminal Rule 35(a), contending that he had been subjected to  an
illegal sentence.  Lockuks argument was based on Blakely.
          Lockuk    pointed   out   that,   under    former    AS
12.55.125(k)(2),  the  time to serve component  of  his  sentence
would have been limited to 2 years imprisonment if the State  had
not  proved  aggravators.  Lockuk then argued that he was  denied
his  constitutional rights to grand jury indictment, jury  trial,
and  proof beyond a reasonable doubt because (1) the State raised
these   aggravators  in  a  post-trial  pleading,   rather   than
submitting  them to a grand jury for inclusion in the indictment;
(2)  Judge Torrisi made the rulings on these aggravators himself,
rather  than  submitting these issues to a jury;  and  (3)  Judge
Torrisi applied a clear and convincing evidence standard of proof
(the  standard  of  proof  specified in former  AS  12.55.155(f))
rather  than employing the beyond a reasonable doubt standard  of
proof specified in Blakely.
          Lockuk conceded that two of the aggravators, (c)(8) and
(c)(21), were based on his prior criminal convictions  and  that,
therefore,  these  two  aggravators apparently  fell  within  the
Blakely exception for prior convictions.  However, Lockuk  argued
that  recent federal cases cast doubt on the continuing  validity
of  Blakelys  prior-conviction  exception.   And  Lockuk  further
argued  that, no matter what federal law might say on this issue,
there was no prior-conviction exception under Alaska law.
          The  State opposed Lockuks motion.  The State took  the
position that Blakelys exception for prior convictions was  still
good  law,  that the proof of aggravators (c)(8) and  (c)(21)  in
Lockuks case rested solely on Lockuks prior criminal convictions,
and that therefore these two aggravators were Blakely-compliant.
          After  considering  these  competing  arguments,  Judge
Torrisi  denied Lockuks motion.  Lockuk now asks  us  to  reverse
that decision.
          Lockuk  first argues that all aggravating factors  that
can  potentially increase a defendants sentence  must  be  deemed
elements  of  the  defendants  crime   and  that,  therefore,   a
defendant  has both a federal constitutional right and an  Alaska
constitutional   right  to  grand  jury   indictment   on   these
aggravating factors.  We recently rejected this contention (under
both federal and state constitutional law) in State v. Dague, 143
P.3d 988, 1007, 1010 (Alaska App. 2006).
          Lockuk  next addresses the Blakely exception for  prior
convictions.   As  explained  above,  Lockuk  has   seven   prior
convictions   for  misdemeanor  assault,  as  well   as   another
conviction  for  resisting arrest.  These convictions  ostensibly
comprise a Blakely-compliant basis for finding aggravator  (c)(8)
(history  of assaultive conduct) and aggravator (c)(21)  (history
of   similar  offenses).   But  Lockuk  argues  that  his   prior
convictions for assault and resisting arrest can not properly  be
used to prove these two aggravators.
          Lockuk  first  contends  that, even  under  the  United
States Supreme Courts own decisions on this subject, [t]he  prior
conviction  exception  [first recognized in Almendárez-Torres  v.
United  States3]  is as near to a dead letter as  any  [doctrine]
that  has  not been specifically overruled.  Lockuk  argues  that
subsequent  decisions  of  the  Supreme  Court  have  essentially
limited Almendárez-Torres to its facts.
          We do not agree.  First, the prior conviction exception
continues  to make sense, even in light of Blakely.  We explained
the  rationale  of the prior conviction exception in  Edmonds  v.
State, 118 P.3d 17, 20 (Alaska App. 2005):
               For [a] defendant to be convicted of [a]
          crime ..., one of three things had to happen:
          either  (1)  the  defendant  exercised  their
          right  to  trial by jury, and the jury  found
          the  defendant  guilty; or (2) the  defendant
          was  offered  a  jury trial  but  waived  it,
          choosing instead to be tried by a judge,  and
          the  judge found the defendant guilty; or (3)
          the  defendant was offered a jury  trial  but
               waived trial altogether, choosing instead to
          enter   a  plea  of  guilty  or  no  contest.
          Regardless  of  how the defendant  was  found
          guilty,  the defendants right to  jury  trial
          and  the  defendants right to proof beyond  a
          reasonable doubt were both honored  and  thus
          Blakely is satisfied.
          Second,  as  we recently noted in Tyler v.  State,  133
P.3d 686 (Alaska App. 2006), even though lawyers and judges might
reasonably   dispute  the  continuing  vitality  of   the   prior
conviction  exception,  the  United  States  Supreme  Court   has
cautioned lower courts that they should not deviate from  Supreme
Court  precedent,  even when the Supreme Courts  later  decisions
seemingly  invalidate that precedent or call  it  into  question.
Id.  at 689-690.  Thus, even though there may be reason to  doubt
whether the prior conviction exception still commands five  votes
among   the  members  of  the  Supreme  Court,  [t]his  exception
continues  to be the law of the land unless and until the  United
States  Supreme Court expressly abandons or modifies it.  Id.  at
          We  have explicitly held that, consistent with Blakely,
a  judge  imposing a sentence under Alaskas pre-2005  presumptive
sentencing  laws  could  properly  rely  on  a  defendants  prior
convictions  as  a  basis  for finding  aggravators  (c)(8)4  and
(c)(21)5  at least when the defendant did not dispute the fact of
those  convictions,  and  when the State  relied  simply  on  the
convictions  themselves and the legal elements of  those  crimes,
rather  than  attempting to introduce evidence of the  particular
facts underlying the prior convictions.6
          Lockuk  has  never contested (either at his  sentencing
hearing,  or  in his Criminal Rule 35(a) motion in  the  superior
court,  or  in his appellate briefs to this Court)  that  he  has
seven prior convictions for assault and one prior conviction  for
resisting arrest. Therefore, under this Courts prior decisions on
this  topic,  Judge Torrisi committed no Blakely  error  when  he
relied  on  these  prior  convictions as the  basis  for  finding
aggravating factors (c)(8) and (c)(21).
          Lockuk  argues  in  the alternative that,  even  if  an
exception   remains   under  Blakely  for  a   defendants   prior
convictions,  that exception is limited to situations  where  the
defendant personally and expressly concedes the existence of  the
prior  convictions.  Thus, even though neither Lockuk nor  either
of  his lawyers has ever disputed the existence of Lockuks  prior
convictions,  Lockuk  nevertheless contends  that  Judge  Torrisi
committed error under Blakely when he neglected to address Lockuk
personally  and obtain Lockuks express concession of those  prior
          To  prevail on this point, Lockuk must show that  Judge
Torrisis reliance on the undisputed prior convictions constituted
plain  error.    Lockuks argument rests on a particularly  narrow
reading of Almendárez-Torres  a reading that conflicts with  this
Courts   own   previous  applications  of  the  prior  conviction
exception.   Whatever  might be said in favor  of  Lockuks  legal
argument,  it is no more than debatable.  This means that  Lockuk
          can not show plain error  for when reasonable judges could differ
as to what the law requires, there is no plain error.7
          The  same  holds  true with respect to Lockuks  related
argument   that,  because  Lockuks  right  to  jury   trial   was
potentially  involved,  Judge Torrisi  was  required  to  address
Lockuk personally and obtain his affirmative waiver of the  right
to  jury  trial  on the aggravators (even in the absence  of  any
dispute concerning them).
          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.   Lockuks  case  is  similar.    As
explained  above, the States pre-sentencincg memorandum expressly
relied  on Lockuks prior convictions as the basis for the  States
proposed  aggravators (c)(8) and (c)(21).  And  Lockuks  attorney
implicitly conceded the existence of those prior convictions,  in
that  the  defense  attorney  never  offered  an  opposition   to
aggravators (c)(8) and (c)(21), nor did he dispute the  existence
of the underlying criminal convictions.
          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,8 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,  Lockuks  position  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.
Thus,  Judge  Torrisi did not commit plain error  when  he  found
aggravators (c)(8) and (c)(21) without obtaining Lockuks personal
waiver of the right to jury trial.
          Moreover,  Lockuks  claim  of  plain  error  fails  for
another  reason.   Lockuk  has never disputed that  he  does,  in
fact,  have  seven prior convictions for assault  and  one  prior
conviction  for resisting arrest.  In other words,  there  is  no
reasonable  possibility that, if aggravators (c)(8)  and  (c)(21)
had  been  submitted  to a jury, the jury  would  have  found  in
          Lockuks favor on either aggravator.
          We  have  repeatedly held that, in such  circumstances,
any  Blakely error in failing to present an aggravator to a  jury
is  harmless beyond a reasonable doubt  and, thus, the error does
not  require alteration or vacation of the defendants  sentence.9
This rule of harmless error is dispositive of Lockuks claims.
          Lockuk  argues  that any Blakely error  is  structural.
That  is,  he argues that the Blakely right to jury trial  is  so
fundamental  that a violation of this right is not subject  to  a
harmless  error  analysis,  but must instead  lead  to  automatic
reversal.    The  Supreme  Court  rejected  this  contention   in
Washington  v. Recuenco, 548 U.S. __, 126 S.Ct. 2546,  2553;  165
L.Ed.2d 466 (2006).
          Lockuk  next argues that even if Blakely recognizes  an
exception   for   aggravators  based  on   a   defendants   prior
convictions,  the Alaska constitutional guarantee of  jury  trial
also  applies  to the aggravators listed in AS 12.55.155(c),  and
Lockuk  further  argues  that the Alaska  Constitution  makes  no
exception for aggravators based on prior convictions.
          Lockuks  argument hinges on an expansive interpretation
of  the  Alaska Supreme Courts decision in Donlun v.  State,  527
P.2d  472  (Alaska 1974)  an interpretation that runs counter  to
the  Alaska Supreme Courts later decision in State v. Malloy,  46
P.3d  949  (Alaska 2002).  In Malloy, the supreme court  rejected
the  notion  that Donlun required the State to allege aggravating
factors in the indictment and ultimately prove these factors to a
jury.  The supreme court stated: Donlun ... recognize[s] that  an
increased   sentence  resulting  from  a  finding  of   statutory
aggravating circumstances is not a harsher maximum sentence [ and
thus  does  not  trigger  a right to jury  trial  under  Donlun].
Malloy, 46 P.3d at 955.
          Given the supreme courts decision in Malloy (a decision
which  essentially rejected, on state law grounds,  the  position
that  the  United States Supreme Court later adopted in Blakely),
it  is  obvious that Lockuk can not show that the superior  court
committed error by failing to recognize, sua sponte, a  right  to
jury  trial under the Alaska Constitution for aggravating factors
much  less  a  right  to  jury trial that does  not  include  any
exception for aggravators based on prior convictions.
          Finally,  Lockuk  argues that it  is  inappropriate  to
analyze  any  of  his claims  under the rubric  of  plain  error.
Lockuk  concedes that he never raised any of these claims  during
his sentencing proceedings, but he notes that when he finally did
raise  these  claims (three years later), he  raised  them  in  a
motion  under Alaska Criminal Rule 35(a).  Unlike a petition  for
post-conviction  relief, which is litigated as a  separate  civil
case,10   a  motion for correction of an illegal  sentence  under
Criminal Rule 35(a) is treated as part of the defendants original
criminal  case.  For this reason, Lockuk argues, his claims  were
fully presented in the trial court, and thus the very use of  the
... plain error doctrine is inappropriate.
          Lockuk  cites  no case law or other legal authority  to
support his position.  And, in fact, the case law is contrary  to
his position.
          In  two recent published decisions  Walsh v. State, 134
          P.3d 366, 374 (Alaska App. 2006), and Tyler v. State, 133 P.3d
686,  688  (Alaska App. 2006)  this Court employed a plain  error
analysis  in  situations  like  Lockuks  case:   instances  where
defendants  employed  a  Rule 35(a) motion  to  litigate  Blakely
claims that were not raised at the defendants original sentencing
          Other  states follow this same approach.  See State  v.
Schroeder,  880 P.2d 192, 207 (Hawaii 1994) (defendants  sentence
was  properly  vacated under Hawaiis equivalent to  our  Criminal
Rule  35(a) when it was shown that the sentencing court committed
plain  error);  Miller v. State, 856 So.2d 420, 425  (Miss.  App.
2003)  (the legality of a sentence is reviewed for plain  error),
reversed on other grounds 875 So.2d 194, 200 (Miss. 2004); Taylor
v.  State,  995  S.W.2d  78,  84-85  (Tenn.  1999)  (a  defendant
attacking a sentence under Tennessees equivalent to our  Criminal
Rule 35(a) must show that the sentence is void and illegal on its
face   i.e.,  that the sentence is in direct contravention  of  a
statute  [that  was] in existence at the time the sentence  [was]
imposed);  State  v.  Brooks, 908 P.2d 856, 860  (Utah  1995)  (a
sentence  can be attacked under Utahs equivalent to our  Criminal
Rule  35(a),  even though no objection was made at the  time  the
sentence was imposed, if the sentence is patently illegal); State
v.  Scheel,  823  P.2d  470, 474 (Utah App.  1991)  (a  defendant
attacking  a sentence for purported illegality, when no objection
was made at the time, must show plain error).
          In  other  words, even though the law of  these  states
allows  a  defendant to petition the trial court at any  time  to
correct  a  purportedly illegal sentence, such a defendant  faces
the  normal procedural hurdles that apply to any claim  of  error
that was not raised contemporaneously.  Regardless of whether the
claim  of illegal sentence is raised for the first time on direct
appeal,  or in a petition for post-conviction relief, or under  a
rule  of  criminal  procedure similar to  Alaskas  Criminal  Rule
35(a),  the  defendant  must  show that  the  illegality  of  the
sentence is plain.
          See  also  Hamill v. State, 948 P.2d 1356,  1360  (Wyo.
1997),  where the court held that even though an illegal sentence
can  be  corrected at any time under Wyomings equivalent  to  our
Criminal  Rule  35(a), the doctrine of res judicata  prohibits  a
defendant  from  filing  successive  motions  for  correction  of
sentence, each arguing a different theory as to why the  sentence
is illegal.
          As  the Connecticut Court of Appeals explained in State
v.  Lawrence, 863 A.2d 235, 238 (Conn. App. 2005), the purpose of
procedural  rules  like  our Criminal Rule  35(a)  is  to  confer
continuing  jurisdiction  on a sentencing  court  to  correct  an
illegal sentence, even if the claimed error was not raised at the
time of sentencing or in the defendants direct appeal.  But these
procedural rules are not intended to allow defendants to litigate
claims  of  sentence  illegality on  a  clean  slate,  as  if  no
procedural default had occurred previously.
          For  these reasons, we reject Lockuks argument that  it
is  improper  to apply a plain error standard of  review  to  his
claims.  Rather, we re-affirm the approach that we took in  Walsh
and Tyler:  when a defendant raises a Blakely claim for the first
time  in  a motion to correct an illegal sentence under  Criminal
Rule 35(a), the defendant must demonstrate plain error.
          Here,  Lockuk has not shown plain error.   As  we  have
already  explained, some of his Blakely claims have no  merit  at
all.   And with respect to Lockuks remaining Blakely claims,  any
error  is  harmless beyond a reasonable doubt under the facts  of
Lockuks case.  We reach this conclusion for two reasons.   First,
we are bound to apply the Blakely exception for prior convictions
unless  and  until the United States Supreme Court  abolishes  or
modifies  this exception.  Second, Lockuk has never disputed  the
fact  that  he  has seven prior convictions for assault  and  one
prior  conviction  for resisting arrest.   Thus,  on  the  record
before  us, there is no reasonable possibility that a jury  would
find  in  Lockuks favor on the question of whether he  had  these
prior  convictions,  or  whether  these  convictions  constituted
instances of assaultive behavior (aggravator (c)(8)), or  whether
these  convictions  constituted instances  of  criminal  behavior
similar in nature to the assault for which he was being sentenced
(aggravator (c)(21)).
          For  these reasons, the judgement of the superior court

     1See  AS  11.41.220(d) (third-degree assault is  a  class  C
felony); AS 12.55.125(e) (pre-2003 version) (providing a  maximum
penalty of 5 years imprisonment for class C felonies).

     2See former AS 12.55.125(e)(1) (pre-March 2005 version).

3523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

4 Milligrock v. State, 118 P.3d 11, 16 (Alaska App. 2005).

     5Grohs v. State, 118 P.3d 1080, 1084 (Alaska App. 2005).

     6Grohs, 118 P.3d at 1084.

7See,  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)

     8Compare 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.)

9See,   e.g.,   Snelling  v.  State,  123  P.3d   1096,   1098-99
(Alaska  App. 2005); Milligrock v. State, 118 P.3d 11, 17 (Alaska
App. 2005).

     10See  Hensel v. State, 604 P.2d 222, 230-31 (Alaska  1979);
Plyler v. State, 10 P.3d 1173, 1175 (Alaska App. 2000).

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