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Linscott v. State (5/18/2007) ap-2100

Linscott v. State (5/18/2007) ap-2100

     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-9515
Appellant, ) Trial Court No. 3AN-05-1419 Cr
v. )
) O P I N I O N
Appellee. ) No. 2100 May 18, 2007
          Appeal  from the Superior Court,  Third  Judi
          cial   District,   Anchorage,   Michael    L.
          Wolverton, Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   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.

          In  2005,  Duane  A. Linscott was convicted  of  first-
degree  burglary  (burglary of a dwelling),  second-degree  theft
(for  taking  property  valued at approximately  $1000  from  the
dwelling),  and contributing to the delinquency of a  minor  (for
enlisting a minor to help him carry out the burglary).1   At  the
time  of  this burglary, Linscott was on probation from  a  prior
burglary conviction.
          Based  on Linscotts status as a second felony offender,
he  faced  a  4-year  presumptive term of  imprisonment  for  the
burglary and a 2-year presumptive term for the theft.2
          The   State   proposed  one  aggravating  factor:    AS
12.55.155(c)(20)   that Linscott was on felony probation  at  the
time   of  these  offenses.   Linscott  proposed  two  mitigating
factors:   AS  12.55.155(d)(4)   that  Linscott  was  a  youthful
offender  whose criminal conduct was substantially influenced  by
another person of greater maturity; and AS 12.55.155(d)(9) (which
has  since  been renumbered (d)(8))  that Linscotts  conduct  was
among  the  least serious within the definitions of  first-degree
burglary and second-degree theft.
          Superior  Court Judge Michael L. Wolverton  found  that
the  State  had proved aggravator (c)(20) and that  Linscott  had
failed to prove his proposed mitigators.
          Based   on  the  aggravating  factor,  Judge  Wolverton
increased  Linscotts burglary sentence to 6 years  with  2  years
suspended  (i.e., he added 2 suspended years of  imprisonment  to
the  4-year  presumptive  term).   However,  the  judge  did  not
increase  Linscotts theft sentence; he simply imposed the  2-year
presumptive  term   and  he  made this sentence  concurrent  with
Linscotts  burglary  sentence.  (Judge Wolverton  also  sentenced
Linscott  to 1 year of suspended imprisonment for the misdemeanor
of contributing to the delinquency of a minor.)
          In  this  appeal, Linscott argues that Judge  Wolverton
violated  his Sixth Amendment right to jury trial, as interpreted
in  Blakely  v.  Washington,3 when the  judge  failed  to  submit
aggravator (c)(20) to a jury.  Linscott further argues that Judge
Wolverton committed error when he found that Linscott had  failed
to prove mitigator (d)(9) (conduct among the least serious within
the definition of the offense).

     Linscotts Blakely claim
               Linscott  has  never  disputed  that,  as   a
     factual matter, he was on felony probation at the  time
     he  committed  his current offenses.  However,  in  the
     sentencing  proceedings in this case,  Linscott  argued
     that,  under  Blakely, Judge Wolverton was  obliged  to
     submit  aggravator (c)(20) to a jury rather than decide
     this matter himself.  The State, in response, took  the
     position  that  aggravator (c)(20) was covered  by  the
     Blakely  exception  for  prior  offenses,  and  thus  a
     sentencing  judge could decide this aggravator  without
     submitting the question to a jury.
               Judge  Wolverton  never explicitly  ruled  on
     this question of law.  He simply announced, Im going to
     find the aggravator.
               On appeal, Linscott renews his argument that,
     under  Blakely, he was entitled to have a  jury  decide
     whether he was on felony probation at the time  of  his
     current  offenses.   We  need  not  decide  this  issue
     because,  under  the facts of this  case,  any  Blakely
     error was harmless beyond a reasonable doubt.  We reach
     this  conclusion  because Judge  Wolverton  could  have
               imposed the same composite sentence without increasing
     Linscotts   burglary   sentence   above   the    4-year
     presumptive term.
          As explained above, Judge Wolverton sentenced
Linscott  to  6  years with 2 years suspended  for  the
burglary,  and  he imposed a concurrent sentence  of  2
years   to   serve  for  the  theft.   Thus,  Linscotts
composite  sentence for these two offenses is  6  years
with 2 years suspended.
          Even  in  the absence of aggravating factors,
Judge  Wolverton could have imposed this same composite
sentence   by imposing the 4-year presumptive term  for
burglary and the 2-year presumptive term for theft, but
suspending the 2-year theft sentence and imposing  this
theft  sentence consecutively instead of  concurrently.
We  note that, when Judge Wolverton sentenced Linscott,
he  declared  that  he  would  have  imposed  the  same
composite  sentence even if the presumptive  sentencing
law   had   not  governed  Linscotts  sentencing.    It
therefore  appears that Judge Wolverton structured  the
two   sentences  to  achieve  a  particular   composite
sentence,  rather than concentrating on the  individual
sentences for Linscotts separate crimes.
          Recently,  in Billum v. State, 151  P.3d  507
(Alaska  App. 2006), we held that a Blakely  error  was
harmless under analogous circumstances  that is,  where
(1) the defendant was being sentenced for more than one
crime,   (2)   the  sentencing  judge  structured   the
defendants individual sentences to achieve a particular
composite term of imprisonment, and (3) the judge could
have  imposed that same composite term without  relying
on aggravating factors (i.e., without increasing any of
the  defendants  presumptive  terms  of  imprisonment).
Id., 151 P.3d at 509-510.
          Applying  our holding in Billum to  Linscotts
case,  we  conclude that any Blakely error in Linscotts
case was harmless.

Linscotts  argument  that Judge Wolverton  should  have
found mitigator (d)(9)

          At   Linscotts  sentencing,  in  support   of
proposed mitigator (d)(9), the defense attorney  argued
that  Linscotts burglary and theft were not as  serious
as  the  State  portrayed  them.   In  particular,  the
defense  attorney attacked the States  contention  that
Linscotts crimes had affected two victims.  Even though
the  defense  attorney  conceded  that  Linscott  stole
property belonging to both the homeowner and her  minor
son,  the  defense attorney argued that the son  should
not really be considered a victim because, according to
the  sons  testimony, he no longer  used  the  item  of
property stolen from him (a viola).
          Even assuming that the homeowners son was  no
longer using the viola, we conclude that this fact does
not  place Linscotts burglary and theft among the least
          In  Linscotts brief to this Court, he  points
to  several other factors that arguably make  Linscotts
crimes  less  serious.  In particular, Linscott  argues
that (1) the burglary occurred during the daytime,  (2)
the  residents of the dwelling were not  home,  (3)  no
damage was done to the residence, (4) the value of  the
property  stolen  during  the  burglary  (approximately
$1000)  was toward the low end of the range for second-
degree   theft  ($500  to  $25,000),5  (5)  the  stolen
property  was  quickly recovered, and (6) the  burglary
and theft were unsophisticated.
          Whatever may be the merit of these arguments,
they  are not properly before us  because none of these
arguments were presented to Judge Wolverton.
          It is true that, once the facts of a case are
established,  the existence (or non-existence)  of  the
conduct among the least serious mitigating factor is  a
question  of law.6  Thus, to the extent that  Linscotts
current  arguments rest on facts that  are  undisputed,
one  might  argue that this Court should  independently
evaluate  Linscotts arguments and re-determine  whether
the mitigator was proved.
          This  is, in fact, the approach we would take
if  the  superior  court had decided the  mitigator  in
Linscotts  favor,  and  Linscott  were  defending   the
superior   courts  ruling   because   this   Court   is
authorized to affirm the decision of a lower  court  on
any ground revealed by the record.7
          But   the   superior  court  concluded   that
Linscott  had  failed to prove the proposed  mitigator,
and  Linscott is attacking the superior courts  ruling.
Under  these circumstances, Linscott is not allowed  to
use  the  appeal  process as a forum  for  raising  new
theories  as  to  why mitigator (d)(9) might  be  found
under the facts of his case.
          Although we have never had occasion to  apply
this  principle to mitigating factors, both this  Court
and   the  Alaska  Supreme  Court  have  applied   this
principle  to  analogous situations in the  past.   For
instance, when a trial judge excludes evidence  offered
by the defense, the defendant may not argue a different
theory of admissibility on appeal.8  Similarly, when  a
defendant  objects  to the governments  evidence  on  a
particular  ground,  but the trial  judge  nevertheless
admits  the  evidence, the defendant may  not  argue  a
different  evidentiary objection on appeal.9   We  have
also  held  that  when a defendant objects  to  a  jury
instruction  at  trial,  and the  judge  overrules  the
defendants objection, the defendant can not rely on new
grounds  when  arguing on appeal that the jury  instruc
tion was improper.10
          Applying  this same principle, we  hold  that
Linscott is not permitted to rely on new theories as to
          why Judge Wolverton should have found that his conduct
was among the least serious.


          The  superior courts sentencing  decision  is

     1AS    11.46.300(a)(1),   AS   11.46.130(a)(1),    and    AS
11.51.130(a)(1), respectively.

2See   former   AS   12.55.125(d)  and  125(e)  (pre-March   2005

     3542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

4See  Michael v. State, 115 P.3d 517, 519-520 (Alaska  2005)
(holding  that it is a question of law  i.e., a question  to
be  decided by an appellate court without deference  to  the
sentencing   judge   whether  given  facts   establish   the
mitigator of conduct among the least serious).

5See AS 11.46.130(a)(1).

6Michael v. State, 115 P.3d 517, 519-520 (Alaska 2005).

7See  Torrey  v. Hamilton, 872 P.2d 186, 188 (Alaska  1994);
Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Millman  v.
State,  841  P.2d  190, 195 (Alaska App. 1992);  Russell  v.
Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981).

8Jones  v. State, 576 P.2d 997, 1000-01 (Alaska 1978);  Dyer
v. State, 666 P.2d 438, 450-51 (Alaska App. 1983).

9Deal  v. State, 626 P.2d 1073, 1077-78 (Alaska 1980);  Post
v. State, 580 P.2d 304, 308 (Alaska 1978).

10Ladd  v.  State,  568  P.2d  960,  967-68  (Alaska  1977);
Williams v. State, 648 P.2d 603, 608 (Alaska App. 1982).

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