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Baker v. State (5/2/2008) ap-2165

Baker v. State (5/2/2008) ap-2165

     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-9480
Appellant, ) Trial Court No. 3AN-99-3658 CR
v. )
Appellee. ) [No. 2165 - May 2, 2008]
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Anchorage, Gregory J. Motyka, Judge Pro Tem.

          Appearances: Fred A. Baker, pro  se,  Seward,
          Dan  Lowery,  Assistant Public Defender,  and
          Quinlan  Steiner, Public Defender, Anchorage,
          for  the  Appellant.  Kenneth M.  Rosenstein,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          A  jury convicted Fred A. Baker of felony driving while
intoxicated,  felony refusal to submit to a breath test,  driving
with  a  revoked  license, and third-degree  criminal  mischief.1
Baker  was arrested for these offenses after an officer  observed
him  driving  erratically, speeding through a  parking  lot,  and
          driving on the sidewalk.  He was on bail release for another
driving  while  intoxicated offense at the time.  Superior  Court
Judge  Pro Tem Gregory J. Motyka found that Bakers offenses  were
aggravated and sentenced him to a composite term of 11  years  of
          Baker  appealed,  and we affirmed his  convictions  but
vacated  his sentence.  We ruled that Judge Motyka had  erred  in
finding  the  aggravating factor that Baker had  previously  been
convicted  of a more serious felony.2  We also ruled  that  Judge
Motyka  had erred in concluding that he was required  by  law  to
impose  a  minimum sentence of 6 years to serve.3   We  therefore
remanded the case to the superior court for resentencing.4
          On  remand,  Judge Motyka reimposed  the  11  years  of
imprisonment.    Baker  appeals,  contending  that  Judge  Motyka
committed  several errors at resentencing, including imposing  an
excessive  sentence.  For the reasons explained below, we  affirm
Judge Motykas sentencing decisions.
          Baker  first  contends  that  Judge  Motyka  erred   at
resentencing by not allowing him to challenge a prior  California
felony  conviction.  That conviction formed part of  the  factual
basis  for  the superior courts finding of aggravating factor  AS
12.55.155(c)(15)   that Baker had previously  been  convicted  of
three  or more felonies.  Baker conceded this aggravating  factor
at his original sentencing.5  But at resentencing, he argued that
he  was  entitled  to relitigate this issue  as  if  the  earlier
sentencing proceeding had not taken place.6
          Judge  Motyka  ruled  that our remand  was  limited  to
reconsideration  of  Bakers sentence,  and  that  Baker  was  not
entitled  to challenge his California conviction.  We agree  with
Judge  Motyka  that  our remand was for the purpose  of  allowing
Judge  Motyka to reconsider Bakers sentence, and that  Baker  was
not  entitled to relitigate other issues.  We therefore  conclude
that  Judge  Motyka did not abuse his discretion by  refusing  to
reconsider his finding that Baker had been convicted of three  or
more felonies.
          Judge Motyka did allow Baker to contest the aggravating
factors  on  the  ground that he was entitled  under  the  United
States Supreme Courts decision in Blakely v. Washington7 to  have
a jury find those aggravating factors.  Blakely was decided after
Bakers  original sentencing.  Baker now challenges Judge  Motykas
Blakely rulings.
          Baker  argues that, under Blakely, a jury was  required
to  find the AS 12.55.155(c)(15) aggravating factor that  he  had
previously been convicted of three or more felonies.  But we have
previously held that this aggravating factor is Blakely-compliant
when  it  is based on a defendants undisputed prior convictions.8
Because Baker conceded the existence of these convictions at  his
original  sentencing,  Judge Motyka could find  this  aggravating
factor without submitting the issue to a jury.
          Baker  also contends that Judge Motyka violated Blakely
by finding aggravating factor AS 12.55.155(c)(12)  that Baker was
on release for another felony charge or conviction at the time he
committed his present offense.  But Judge Motyka found that court
documents clearly established that Baker was on felony release at
the  time  of his offense, and Baker conceded this aggravator  at
          his original sentencing.9  Since it was undisputed that Baker was
on  release  for  another felony at the  time  he  committed  his
present  offenses, any error in depriving him of a jury trial  on
this aggravating factor was harmless beyond a reasonable doubt.10
Furthermore,  to comply with Blakely, the court  needed  to  find
only a single Blakely-compliant aggravating factor.11  Thus,  the
(c)(15)  aggravator  of  three  or more  felony  convictions  was
independently sufficient authority for Bakers sentence.
          Baker  next  argues that, under the state constitution,
we  should  reject the federal cases adopting a prior  conviction
exception  to  Blakely.  In other words, he  argues  that,  under
state  law,  the fact of a prior conviction must be  found  by  a
jury, not a judge.  We recently rejected this claim in Active  v.
State.12   Baker  has  not convinced us that Active  was  wrongly
          Baker  also  argues that Judge Motyka erred by  finding
that he was a worst offender.  In Alaska, courts normally may not
impose  a maximum sentence for a felony offense without  a  worst
offender finding.13  Baker argues that, under Blakely, this worst
offender finding must be made by a jury.
          In Simon v. State,14 we observed that other states have
held  that  a worst offender classification need not be submitted
to  a  jury under Blakely.15  Some states have concluded  that  a
worst  offender  classification is  a  traditional  component  of
sentencing  a legal assessment of the significance of the  proved
facts  of  the defendants conduct and background for purposes  of
exercising sentencing discretion.16  Other states have held  that
a  worst  offender  finding is not covered by  Blakely  if  other
aggravating  factors have already been proved in conformity  with
Blakely   thus  establishing the judges  authority  to  impose  a
sentence  within  the  higher range.17  In  Simon,  we  found  it
unnecessary  to decide what rule to adopt as a matter  of  Alaska
          We  now hold that a defendant is not entitled to a jury
trial on the issue of whether he or she is a worst offender.   In
Bakers  case, the jurys verdict and Judge Motykas finding  of  at
least  one  Blakely-compliant  aggravating  factor  authorized  a
sentence  of up to 11 years of imprisonment.  State law  required
Judge  Motyka to find that Baker was a worst offender  before  he
imposed  that  maximum sentence. But that  finding  is  based  on
traditional sentencing criteria  that the characteristics of  the
offense  and/or the offender justify the imposition of a  maximum
sentence.19   The worst offender rule directs a sentencing  judge
to   articulate  substantial  reasons  for  imposing  a   maximum
sentence.   Requiring the sentencing judge to make  this  finding
facilitates appellate review of sentencing.  It also promotes the
legislatures  goals  of  eliminating  unjustified  disparity   in
sentencing  and attaining reasonable uniformity in  sentencing.20
Because we conclude that a worst offender finding is not the type
of  factual issue that must be submitted to a jury under Blakely,
we  reject  Bakers claim that the court erred in  finding  him  a
worst offender.
          Baker  next contends that Blakely aggravators  must  be
presented  to the grand jury. Baker concedes that this court  has
already  considered this issue and rejected  his  argument.    In
          State v. Dague,21 we determined that a defendant does not have a
right  to  grand jury indictment on an aggravating factor.22   We
adhere to that decision.
          Baker  contends that holding a hearing after  trial  to
determine  aggravating  factors violates his  federal  and  state
double  jeopardy rights.  But as we discussed in Dague, there  is
no  double jeopardy violation when a later proceeding is held  to
cure a Blakely error.23  We therefore reject Bakers claim.
          Baker  argues  that  convicting him for  driving  while
intoxicated  and  also convicting him for refusing  to  take  the
breath  test  violates the Double Jeopardy Clause of  the  United
States  and Alaska constitutions.  Bakers argument hinges on  his
contention  that  driving while intoxicated is a  lesser-included
offense of refusal to take the breath test.  But they are clearly
separate offenses.

          In   1999,  the  crime  of  DWI  was  defined   in   AS
28.35.030(a)(1) as follows:
A  person commits the crime of driving while intoxicated  if  the
person operates or drives a motor vehicle or operates an aircraft
or  a  watercraft  while  under  the  influence  of  intoxicating
liquor.24  In 1999, the crime of breath test refusal was  defined
in AS 28.35.032(a) as follows:
          If  a  person  under arrest for  operating  a
          motor  vehicle or aircraft while  intoxicated
          refuses  the  request of  a  law  enforcement
          officer   to   submit  to  a  chemical   test
          authorized  under  AS 28.33.031(a)(1)  or  AS
          28.35.031(a), ... after being advised by  the
          officer that the refusal will result  in  the
          denial  or revocation of the drivers license,
          privilege to drive, or privilege to obtain  a
          license, that the refusal may be used against
          the  person in a civil or criminal action  or
          proceeding  arising out of an act alleged  to
          have  been  committed  by  the  person  while
          operating  a motor vehicle or aircraft  while
          intoxicated, and that the refusal is a crime,
          a chemical test may not be given.[25]
To  convict Baker of DWI, the State had to prove that  Baker  was
actually driving while intoxicated.26  In contrast, the State did
not  have  to  prove that Baker was driving while intoxicated  to
convict  him  of  breath test refusal, only that he  was  legally
under arrest for DWI.27
          Similarly, the State had to prove that Baker refused to
submit  to  a  breath test in order for Baker to be convicted  of
breath  test  refusal.28  The State did not have  to  prove  that
Baker  refused  to  submit  to a breath  test  for  Baker  to  be
convicted of DWI.29           In Wilson v. State,30 we noted that
there  is  nothing  inconsistent in a jury  finding  a  defendant
guilty  of  breath test refusal but not reaching  a  decision  on
whether  the  defendant  was guilty of  DWI.31   In  Garrison  v.
State,32  an  unpublished  decision,  we  held  that  the  double
jeopardy  clause  does not prohibit the State from  convicting  a
defendant of both driving while intoxicated and refusal to take a
          breath test arising from the same incident.33  Lastly, in Brown
v. State,34 we stated:  Driving while intoxicated and refusing  a
breath  or  blood test are separate offenses permitting  separate
convictions and separate sentences.35  We therefore reject Bakers
double jeopardy arguments.
          Baker  contends that his fines for DWI and breath  test
refusal should be concurrent.  At resentencing, Baker asked Judge
Motyka  to  impose the fines concurrently. Judge  Motyka  granted
this request.  But the written judgment states that the fines are
consecutive.  The State concedes error. We have  previously  held
that   a   judges  oral  sentencing  remarks  control  over   any
conflicting  provision in the written judgment.36   We  therefore
direct the trial court to correct the written judgment to reflect
that the fines for DWI and breath test refusal are concurrent.
          Judge Motyka ordered Bakers drivers license revoked for
5 years for each conviction, and he ordered these sentences to be
consecutive  to each other.  Baker argues that Judge  Motyka  did
not  have the authority to impose the drivers license revocations
consecutively.  But  in Snyder v. State,37 we  indicated  that  a
sentencing  judge  has  the  discretion  to  impose  the  license
revocation   penalties   for  DWI   and   breath   test   refusal
consecutively  or  concurrently.38  The record shows  that  Judge
Motyka  considered imposing the license revocations  concurrently
but  concluded  that  it was appropriate to  impose  the  license
revocations  consecutively.  Given Bakers  extensive  record,  we
conclude  that  Judge Motykas decision to impose the  revocations
consecutively was not clearly mistaken.39

          Bakers claim that his sentence is excessive
          To  understand Bakers sentence, we need to consider two
incidents,  approximately one month apart, in which  Baker  drove
while intoxicated.  The first incident occurred in Kenai on April
5,  1999.   We discussed this incident in our former decision  in
this case:
               On  April  5,  1999, motorists  reported
          seeing Baker drive through a red light,  over
          curbs,  and in excess of 80 miles  per  hour.
          Soldotna Police Officer Joseph Shoemaker  saw
          Baker lose control of his car just before  he
          stopped him.  Shoemaker concluded that  Baker
          was intoxicated and arrested him.

               At  the police station, Baker yelled and
          screamed  while the officer read the  implied
          consent warning.  Baker refused to submit  to
          a breath test.

               On  the  way to a correctional facility,
          Baker managed to release his safety belt  and
          to  bring  his handcuffed hands in  front  of
          him.   He  cursed  at Officer  Shoemaker  and
          threatened the officer and his family.[40]

As noted earlier, Baker was ultimately convicted of driving while
intoxicated  and  felony refusal to submit to  a  breath  test.41
Both  offenses  are  class C felonies.42   Superior  Court  Judge
Jonathan  H.  Link  sentenced Baker to a  composite  5  years  of
imprisonment for these  offenses.43
          Baker  was released on bond from the Kenai offenses  on
April  16, 1999.  His present offense occurred in Anchorage three
weeks later on May 4, 1999.  We discussed that case in our former
               On May 4, 1999, Anchorage Police Officer
          Richard  Steiding  observed  Fred  A.   Baker
          driving  erratically.  Baker stopped abruptly
          at 13th Avenue, proceeded through the parking
          lot of the Carrs supermarket at the speed  of
          15-20  miles per hour, cut across the parking
          lot,  and  drove down the sidewalk, traveling
          eastbound  on 13th Avenue.  Officer  Steiding
          pursued Baker and located the vehicle  parked
          in  the Carrs parking lot, parked in front of
          a  No Parking sign.  Anchorage Police Officer
          Joel   Breiner   arrived   to   assist    and
          subsequently arrested Baker.  Officer Breiner
          transported Baker to a police substation  for

               Baker  twice  refused to take  a  breath
          test.   Baker  asked for an independent  test
          and   was   transported  to  Alaska  Regional
          Hospital, where he insisted on having only  a
          urine test.  Bakers urine tested positive for
          alcohol, cocaine and marijuana.  While he was
          being  taken  to the magistrate  for  a  bail
          hearing, Baker began growling and biting  the
          backseat  of  the officers patrol  car.   The
          officers  restrained Baker, but  he  remained
          combative despite the restraints.

               Baker was indicted on one count each  of
          felony  driving while intoxicated and  felony
          refusal to submit to a chemical test.  He was
          also   charged  with  driving  while  license
          revoked,  and third-degree criminal mischief.
          A   jury   convicted   Baker   of   all   the

In  our  former decision, we also discussed Bakers prior criminal
               Baker  was 37 years old at the  time  he
          committed  the  Anchorage  offenses.   Bakers
          first  felony conviction took place  in  1981
          when  he  was 19 years old.  He was convicted
          of  possession  of  marijuana  for  sale  and
          sentenced to 120 days in jail.  In the 1980s,
          Baker     accumulated    approximately     12
          misdemeanor offenses.  Most of these offenses
          are  for driving without an operators license
          or   for   driving  while  his  license   was
               suspended.  In 1990, Baker was convicted of
          his  second  felony offense, making  a  false
          statement on a title application.  Baker  was
          sentenced to 1 year suspended and placed on 3
          years  probation.   But  his  probation   was
          revoked  in  1992 and Baker  was  ordered  to
          serve  1  year of imprisonment.  In September
          1991,   Baker  was  convicted  of  misconduct
          involving a weapon in the first degree,  then
          a  class  C  felony.  He was sentenced  to  3
          years with 1 year suspended.

               In   1997,  Baker  committed  his  first
          driving  while intoxicated offense.  In  this
          case,  Baker was involved in a motor  vehicle
          collision.   Less than a month  later,  Baker
          was  convicted  of his second  driving  while
          intoxicated offense and for driving while his
          license  was  suspended.  Two  months  later,
          Baker  again  drove  while  his  license  was
          suspended.   Bakers  Kenai offenses  occurred
          April  5,  1999  and  his Anchorage  offenses
          occurred less than 30 days after.[45]

We discussed Judge Motykas sentencing findings as follows:
               In   sentencing  Baker,   Judge   Motyka
          considered Bakers prior criminal history.  He
          concluded  that  Baker was a  worst  offender
          with  poor prospects for rehabilitation.   He
          pointed   out  that  Baker  had  consistently
          failed  on  probation.  He considered  Bakers
          actions  and his sentence [in the Kenai  case
          6  years  at  the time, later  reduced  to  5
          years].  He  pointed out, at  the  time  that
          Baker  committed the Anchorage  offenses,  he
          had  just  been  released on  felony  driving
          while intoxicated and refusal charges knowing
          that  he faced a substantial sentence in  the
          Kenai  case.   Yet  he had committed  similar
          offenses  in  Anchorage.  He  concluded  that
          this sequence of events showed that Baker was
          completely  out  of  control.   Judge  Motyka
          imposed  a  sentence of 5  years  for  felony
          driving while intoxicated, 5 years for felony
          refusal to take the chemical test, 1 year for
          license  revoked  and 6 months  for  criminal
          mischief  in the third degree.  Judge  Motyka
          imposed these sentences consecutively to each
          other   for  a  composite  sentence  on   the
          Anchorage    case    of    11    years     of

In our former decision we stated that, since Judge Motyka had not
specified  whether his sentence was concurrent or consecutive  to
the  Kenai  sentence, Judge Motykas  sentencing remarks  on  this
point  were at best, ambiguous.47   We therefore concluded   that
it  was reasonable to interpret Judge Motykas remarks as imposing
a  sentence of 11 years to be served concurrently with the  Kenai
          We  also  concluded  that Judge  Motyka  had  erred  in
finding  the  aggravating factor that Baker had  previously  been
convicted of a more serious felony and in concluding that he  was
required by law to impose Bakers 3-year presumptive sentence  for
felony  refusal  to  take  a  breath test  consecutively  to  the
sentence  for  felony driving while intoxicated.49  We  therefore
remanded for resentencing.
          At resentencing, Judge Motyka again imposed 11 years of
imprisonment.  Judge Motyka again found that Baker  was  a  worst
offender.   He emphasized that, based on Bakers extensive  record
of driving while intoxicated offenses and his complete failure to
address  his  substance abuse problems, Baker was a  demonstrated
danger  to the public.  He pointed out that Baker was on  release
for  only  a short period of time on the Kenai offenses  when  he
committed  his  present  offenses,  knowing  that  he   faced   a
substantial  sentence.   He pointed out that  in  Bakers  current
driving while intoxicated offense, Baker could easily have killed
          On appeal, Baker claims that his sentence is excessive.
In  particular, Baker contends that his sentence  is  similar  to
sentences  in  which defendants have killed or seriously  injured
someone  when they are driving while intoxicated.  For  instance,
in Pusich v. State,50 we pointed out that a survey of prior cases
reveals  that both the supreme court and this court have affirmed
sentences   of   10  to  13  years  imprisonment  for   vehicular
homicide.51  (In Pusich, we upheld a sentence of 25 years with  7
years suspended based on the particularly egregious facts of that
          In  analyzing the sentence Baker received, we note that
the  sentence is concurrent with the 5-year sentence  that  Baker
was  already serving for his Kenai conviction.  Baker was a third
felony  offender  for  purposes of  presumptive  sentencing.   He
therefore faced a presumptive term of 3 years of imprisonment  on
each of the two class C felonies (breath test refusal and DWI).53
The minimum sentences for the breath test refusal and DWI had  to
be  consecutive, so the starting point for Bakers sentence was  3
years,  120 days.   At the time of his Anchorage offenses,  Baker
was facing serious felony charges in Kenai, yet he left his third-
party  custodian, drove in Anchorage while intoxicated, and  then
drove  on the sidewalk.  Under these circumstances, Judge Motyka,
in  Bakers  original  sentence, could have  properly  decided  to
impose a substantial sentence consecutive to the time that  Baker
faced on the Kenai convictions.
          In  addition, Baker was almost forty years old  at  the
time of the charged conduct and had a total of twenty-four  prior
convictions, including several felonies.  In addition to his  DWI
offenses, Baker had been convicted seven times for driving  while
his  license was suspended and five times for driving  without  a
valid  license.  Judge Motyka concluded, based upon Bakers  prior
record  and  his  current convictions, that it was  necessary  to
impose  11  years of imprisonment to protect the public,  because
          Baker was eventually going to kill someone if he was  not
incarcerated.  Judge Motykas findings are supported by the record
and  support the sentence that he imposed.  We conclude that  the
sentence is not clearly mistaken.54
          AFFIRMED and REMANDED.
     1  Baker  v.  State,  110 P.3d 996, 997 (Alaska  App.  2005)
(citing  AS  28.35.030(a)(1),  (n);  AS  28.35.032(a),  (p);   AS
28.15.291(a); and AS 11.46.484(a)(1), respectively).

2 Id. at 1004; AS 12.55.155(c)(7).

     3 Baker, 110 P.3d at 1004.

     4 Id.

     5 Id. at 1001.

     6 Tookak v. State, 680 P.2d 509, 511 (Alaska App. 1984).

     7 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

     8 State v. Avery, 130 P.3d 959, 962 (Alaska App. 2006).

9 Baker, 110 P.3d at 1001.

     10    See  Tyler  v. State, 133 P.3d 686, 689  (Alaska  App.

     11    See  Cleveland v. State, 143 P.3d 977, 984-85  (Alaska
App. 2006).

     12   153 P.3d 355, 367 (Alaska App. 2007).

     13   Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971).

     14   121 P.3d 815 (Alaska App. 2005).

     15   Id. at 819-20.

     16   Id. at 819.

     17   Id. at 820.

     18   Id.

     19    See  State  v.  Wortham, 537 P.2d 1117,  1120  (Alaska

     20    AS 12.55.005; cf. Vandergriff v. State, 125 P.3d  360,
363  (Alaska  App. 2005) and 370-72 (Mannheimer, J.,  concurring)
(explaining  that  the right to jury trial announced  in  Blakely
does not apply to a finding under the Neal-Mutschler rule that  a
composite  term  to  serve exceeding the  maximum  term  for  the
defendants single most serious crime is necessary to protect  the
public  (discussing Neal v. State, 628 P.2d 19 (Alaska 1981)  and
Mutschler v. State, 560 P.2d 377 (Alaska 1977))).

21   143 P.3d 988 (Alaska App. 2006).

     22   Id. at 991.

     23   Id. at 1013-14.

     24   Former AS 28.35.030(a)(1) (1999).

     25   Former AS 28.35.032(a) (1999).

     26   See former AS 28.35.030(a) (1999).

     27   See former AS 28.35.032(a) (1999).

     28   See former AS 28.35.032(a) (1999).

     29   See former AS 28.35.030(a) (1999).

     30   680 P.2d 1173 (Alaska App. 1984).

     31   Id. at 1179.

     32    Alaska App. Memorandum Opinion and Judgment  No.  4576
(May 29, 2002), 2002 WL 1150738.

33   Id. at 2, 2002 WL 1150738 at *1.

     34   739 P.2d 182 (Alaska App. 1987).

     35    Id.  at 183 n.1 (citing Whitton v. State, 479 P.2d 302
(Alaska 1970)).

     36    See,  e.g.,  Graybill v. State, 822  P.2d  1386,  1388
(Alaska  App. 1991); Figueroa v. State, 689 P.2d 512, 514 (Alaska
App. 1984).  See also Whittlesey v. State, 626 P.2d 1066, 1067-68
(Alaska 1980).

     37    879  P.2d  1025  (Alaska App.  1994),  revd  on  other
grounds, 930 P.2d 1274 (Alaska 1996).

     38   Id. at 1030.

     39    See  McClain  v. State, 519 P.2d 811,  813-14  (Alaska
     40   Baker, 110 P.3d at 1000 (internal footnotes omitted).

     41   Id.

42     Id.   (citing   AS  28.35.030(a)(1)  or   (2),   (n);   AS
28.35.032(a), (p)).

     43   Id.

     44   Id. at 997-98.

45   Id. at 1001.

     46   Id. at 1001.

47   Id. at 1002.

     48   Id. at 1003.

     49   Id. at 1003-04.

     50   907 P.2d 29 (Alaska App. 1995).

     51   Id. at 38.

     52   Id. at 31, 39.

     53   Baker, 110 P.3d at 1000.

     54   See McClain, 519 P.2d at 813-14.

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