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Alexiadis v. State (7/17/2015) ap-2463

Alexiadis v. State (7/17/2015) ap-2463


         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 Courts:   

                                   303 K Street, Anchorage, Alaska  99501

                                              Fax:  (907) 264-0878

                                      E-mail:  corrections @



                                                                     Court of Appeals No. A-12101  

                                     Petitioner,                   Trial Court No. 3AN-14-1088 CR  


                                                                                 O P I N I O N  


                                     Respondent.                        No. 2463 - July 17, 2015  

                  Petition  for  Review  from  the  Superior  Court,  Third  Judicial  

                  District, Anchorage, Philip R. Volland, Judge.  

                  Appearances:    Josie  Garton,  Assistant  Public  Defender,  and  

                  Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.  

                  Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                  Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                  General, Juneau, for the Respondent.  

                  Before:    Mannheimer,  Chief  Judge,  and  Allard  and  Kossler,  


                  Judge KOSSLER.  

                  This petition for review presents the question of whether the trial court had       

the authority to reject a plea agreement as too lenient because the State, as part of the   

agreement, gave up the opportunity to prove aggravating factors, thereby limiting the  

court to a sentence within the applicable presumptive sentencing range.  For the reasons  


----------------------- Page 2-----------------------

explained here, we conclude that the court had no authority to reject the plea agreement  

on  this  ground,  and  that  doing  so  impermissibly  infringed  on  the  State's  charging  


discretion. We therefore reverse the superior court's decision and remand for sentencing  


in accordance with the parties' plea agreement.  


                   Dimitrios Nickolaos Alexiadis was charged with three counts of second- 

degree assault for fracturing his infant son's leg, arm, and ribs.  The parties reached a  


Rule 11 agreement in which Alexiadis was to plead guilty to one consolidated count of  


second-degree assault, admitting all the conduct charged in the complaint, agreeing not  


to assert any mitigating factors, waiving his right to request referral to the three-judge  

sentencing panel, and agreeing to pay restitution.  The State, in turn, agreed to dismiss  


the other two charges and agreed not to pursue any aggravating factors for the purpose  


of obtaining a sentence above the applicable presumptive sentencing range of 1 to 3  

years' imprisonment.1  


                   The superior court initially accepted Alexiadis's guilty plea, but after the  

court  reviewed  the  presentence  report,  the  court  rejected  the  plea  agreement  as  too  

lenient.  The court explained that it was rejecting the agreement because the State's  

decision   not   to   raise   aggravating   factors   -   in   particular,   AS   12.55.155(c)(5)  

(particularly vulnerable victim) and AS 12.55.155(c)(18)(A) (offense committed against  

a member of the same social unit) - meant that the court's sentencing authority was  

limited to the 1- to 3-year  presumptive range, a range that the court concluded was too  


lenient under the facts of the case.   

     1    See AS 12.55.125(d)(1).  

                                                           - 2 -                                                      2463

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                     Alexiadis filed a motion urging the court to accept the plea agreement, and       

arguing that the court had no authority to reject the agreement on this ground.                                                    The  

superior court denied this motion, and Alexiadis then filed this petition for review.   

                     The State initially opposed this petition, but the State now agrees with  

Alexiadis that the superior court had no authority to reject the plea agreement on this  



           Why we conclude that the superior court had no authority to reject the  

          parties' plea agreement on the ground that the State agreed not to raise  


           aggravating factors  

                     As we have explained, Alexiadis claims that the superior court exceeded  

its authority by rejecting the parties' plea agreement, and the State agrees with Alexiadis.  


When the State concedes error in a criminal case, we must independently review the  

record and the law to determine if the concession is well-founded.2  

                     Under the laws governing presumptive sentencing in Alaska, a court may  

not impose a sentence above the applicable presumptive range absent proof of at least  

one statutory aggravating factor codified in AS 12.55.155(c).  As originally conceived  


by  the  legislature,  these  statutory  aggravating  factors  were  all  to  be  litigated  to  the  


sentencing judge, sitting without a jury, and had to be proven by clear and convincing  



                  But in Blakely v. Washington , the United States Supreme Court held that it  


violated the Sixth Amendment's guarantee of a jury trial to subject a criminal defendant  


to an enhanced maximum sentence for an offense based on aggravating factors that had  


not been proved to a jury beyond a reasonable doubt, unless the aggravating factor is  

     2     See Marks v. State         , 496 P.2d 66, 67-68 (Alaska 1972);                  Roberts v. State , 751 P.2d 507,  

507 (Alaska App. 1988).  

     3     See former AS 12.55.155(f) (pre-March 2005 version).  

                                                                 - 3 -                                                            2463

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based on the defendant's prior convictions, or flows directly from the jury's findings, or   


is conceded by the defendant.    

                    In response to Blakely , the Alaska Legislature revised Alaska's presumptive  


sentencing laws.   The Legislature's revision replaced the previous presumptive terms  


for offenses with presumptive ranges, the top of which cannot be exceeded absent proof  


of an aggravating factor.  The revision also created two classes of aggravating factors -  

those  which  a  judge  can  continue  to  find  by  clear  and  convincing  evidence,  sitting  

without a jury, and those which must be proved to a jury beyond a reasonable doubt.6  



The two aggravating factors identified by Judge Volland in Alexiadis's case fall within  

this second class.  

                    Before Blakely , we held that courts had the authority - indeed, the duty  


- to find aggravating and mitigating factors that were established by the record, as long  



as the parties had notice and an opportunity to be heard on the issue.   We discussed that  

principle in Hartley v. State , a case in which the State did not seek any aggravating  

factors and expressed satisfaction with the presumptive term.  The sentencing court  


nevertheless found an aggravating factor on its own initiative, and then relied on that  

factor to impose a harsher sentence.8  

                                                          We affirmed the court's decision, ruling that the  

State  had  no  discretion  to  suppress  evidence  of  prior  convictions  or  aggravating  or  

     4    Blakely v. Washington , 542 U.S. 296, 301-04, 124 S.Ct. 2531, 2537-38 (2004).

     5    Ch. 2,  1, SLA 2005; 2005 Senate Journal 102-23.

     6    AS 12.55.155(f)(1)-(2).

     7    Hartley v. State , 653 P.2d 1052, 1055-56 (Alaska App. 1982).

     8    Id. 

                                                              - 4 -                                                          2463

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mitigating factors.   We reasoned that allowing the parties to ignore these factors would       

contravene the legislative goal of reducing unjustified disparity in sentencing.10  

                     Our reasoning in Hartley remains sound as applied to aggravating factors  


that do not require a jury trial under Blakely - aggravating factors that are based on the  

defendant's prior convictions, or on facts necessarily encompassed by the jury's verdicts,  

or on facts expressly conceded by the defendant.   

                     But the situation is different with respect to aggravating factors that must  

be proved to a jury under Blakely .  A sentencing court has no authority to find these  


factors in the absence of a jury verdict.  And the court has no authority to compel the  


State to litigate these factors to a jury.  

                     In State v. District Court, we held that a trial court has no authority to reject  


a plea agreement on the basis that the State could easily prove a more serious charge at  


trial but instead agreed to resolve the case with a plea to a lesser charge.11  

                                                                                                                 We explained  

that decisions on whether to bring criminal charges, or what offenses to charge, fell  

within the long-recognized charging discretion of the executive branch.12  

                                                                                                                And we found  


no  indication  that the legislature, when  it enacted  our presumptive sentencing  laws,  


intended to abrogate or limit this prosecutorial charging discretion.                                       


                     The executive branch's charging discretion is likewise reflected in Alaska  


Criminal Rule 11(e), the rule that sets out the procedure for courts to follow in accepting  


or  rejecting  plea  agreements.    Rule  11(e)  authorizes  a  court  to  reject  a  "sentencing  

     9    Id. at 1056; see also State v. Dague , 143 P.3d 988, 996-97 (Alaska App. 2006).  

     10   Hartley , 653 P.2d at 1056.  

     11   State v. District Court, 53 P.3d 629, 631 (Alaska App. 2002).  

     12   Id. at 633-34; see also Alaska R. Crim. P. 43(a) (allowing the government to dismiss  

a charge before trial, without the consent of the court).   

     13   District Court , 53 P.3d at 633.  

                                                               - 5 -                                                          2463

----------------------- Page 6-----------------------

agreement" (an agreement that limits the court's sentencing authority for a particular   

charge or set of charges), but it does not authorize a court to reject a "charge agreement"  

(an agreement that specifies the charges to which the defendant will plead guilty, but  

does not limit the court's sentencing authority with respect to those charges).   

                   We note that a previous version of Rule 11(e) granted courts the authority  


to reject charge agreements as well as sentencing agreements,14  

                                                                                           but the rule was quickly  

amended to delete the reference to charge agreements.  A memorandum written by the  

court rules attorney to the supreme court explained that the Criminal Rules Committee  


viewed this amendment as a "correction" - because, under Alaska law, "a judge has no  


authority to disapprove a charge agreement."15  

                   Because  of  the  United  States  Supreme  Court's  holding  in  Blakely ,  the  

litigation of non-Blakely-compliant aggravating factors necessarily entails holding a jury  

trial (unless the defendant waives the right to  a  jury).  And while executive branch  


prosecutors are obviously authorized to litigate these aggravating factors at a jury trial,  


the judiciary has no authority to force  executive branch prosecutors to litigate these  


factors at a jury trial.  See Public Defender Agency v. Superior Court , 534 P.2d 947, 950- 


51 (Alaska 1975) (holding that a court has no authority to order the executive branch to  


undertake the prosecution of contempt charges that the court wishes to pursue).  

                   We therefore hold that, with respect to those aggravating factors that require  

a jury trial, the State's decision to litigate these aggravating factors, or to refrain from  


litigating them, should be categorized as a charging decision - a decision that is left to  


the sole discretion of the executive branch.  

     14   See Supreme Court Order 1194 (effective July 15, 1995).  

     15   Memorandum to the Alaska Supreme Court from Court Rules Attorney Christine  

Johnson (Aug. 3, 1995).  

                                                           - 6 -                                                       2463

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                    We therefore agree with the parties that the superior court acted outside its     

authority when it rejected the plea agreement in this case.  


                    We REVERSE the decision of the superior court and REMAND this case  


to  the  superior  court  for  further  proceedings  in  accordance  with  the  parties'  plea  


                                                             - 7 -                                                        2463

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