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Hunter Hedrick v State of Alaska (9/4/2020) ap-2676

Hunter Hedrick v State of Alaska (9/4/2020) ap-2676

                                                                               NOTICE
  

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                formal errors to the attention of the Clerk of the Appellate Courts:  



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                         IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



HUNTER SETH HEDRICK,  

                                                                                                      Court of Appeals No. A-12837  

                                                      Appellant,                                  Trial Court No. 3AN-14-01925 CR  



                                        v.  

                                                                                                                      O P I N I O N  

STATE OF ALASKA,  



                                                      Appellee.                                      No. 2676 - September 4, 2020  



                           Appeal   from  the  Superior   Court,  Third  Judicial  District,  

                                                                                    

                           Anchorage, Michael L. Wolverton, Judge.  



                           Appearances:  Emily Jura, Assistant Public Defender, and Beth  

                                                                     

                           Goldstein,              Acting           Public          Defender,              Anchorage,                for      the  

                           Appellant.              Donald  Soderstrom,  Assistant  Attorney General,  

                                                                                                                                   

                           Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,  

                                                                                                                

                           Attorney General, Juneau, for the Appellee.  



                           Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                         

                           Judges.  



                           Judge ALLARD, writing for the Court.
  

                           Judge WOLLENBERG, concurring.
  



                           Hunter Seth Hedrick was charged with multiple felony assaults for an                                                                           



unprovoked attack on a hotel security guard andahotel                                                        concierge. Hedrick                     subsequently  



waived his right to a jury trial and proceeded to a bench trial before a superior court                                                                              


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

judge.  After the bench trial had already begun, the State notified the court that it would  

                                                                                                                            



be seeking a statutory aggravator under AS 12.55.155(c)(10) - i.e., that the defendant's  

                                                                                                                    



conduct was among the most serious included in the definition of the offense. There was  

                                                                                                                                



no objection to this late notice.  

                                                 



                     Following the bench trial, the superior court found Hedrick guilty of the  

                                                                                                                                



charged assaults.  The superior court also found that the (c)(10) aggravator applied to  

                                                                                                                                  



Hedrick's conviction for first-degree assault and imposed an aggravated sentence of 21  

                                                                                                                                 



years and 6 months to serve.  

                                               



                     Hedricknowappeals, raising two claims. First, Hedrick argues that his jury  

                                                                                                                               



trial waiver was invalid because (according to Hedrick) the superior court failed to  

                                                                                                                                  



adequately advise him of his right to a jury trial and the consequences of waiving that  

                                                                                                                               



right. Second, Hedrick argues that he never waived his right to a jury trial on the (c)(10)  

                                                                                                                          



aggravator,  and he asserts that the State waived  any  right to  rely  on  that statutory  

                                                                                                                       



aggravator by failing to provide timely notice of the aggravator.  

                                                                                                    



                     For the reasons explained in this decision, we reject Hedrick's first claim  

                                                                                                                      



and we find that the superior court's general jury trial advisement, although limited, was  

                                                                                                                               



adequate under our existing case law.  However, we agree with Hedrick that he did not  

                                                                                                                                



waive his right to a jury trial on the (c)(10) aggravator and his case must therefore be  

                                                                                                                                 



remanded for resentencing.  

                                            



          Background facts  

                               



                     On February 27, 2014, Hedrick was wandering the streets of Anchorage  

                                                                                                                    



after drinking and fighting with his girlfriend.  According to Hedrick, he was having a  

                                                                                                                                   



"mental breakdown."  Hedrick spoke to his mother by phone.  His mother told him to  

                                                                                                                                  



check in to a hotel room at the Springhill Suites at University Lake.  

                                                                                                



                                                               - 2 -                                                          2676
  


----------------------- Page 3-----------------------

                    When Hedrick arrived, the concierge at the front desk informed Hedrick  

                                                                                                                         



that there were no rooms available but that he would try to find him something.  The  

                                                                                                                               



concierge asked Hedrick to take a seat while he made some calls.  Hedrick soon began  

                                                                                                                            



cursing loudly in the hotel lobby, and the concierge asked him to quiet down.  The hotel  

                                                                                                                              



security guard approached Hedrick and informed him that if he did not stop cursing, he  

                                                                                                                                  



would be asked to leave.  

                                        



                    Hedrick responded by striking the security guard several times with his fist.  

                                                                                                                                      



Both Hedrick and the security guard fell to the floor, and Hedrick continued to assault  

                                   



the guard - who already appeared unconscious - by hitting and kicking him in the  

                                                                                                                            



head. The concierge jumped over the counter in an attempt to hold off Hedrick. Hedrick  

                                                                                                                         



andtheconciergethen wrestled"around the whole of the lobby" until Hedrick eventually  

                                                                                                                      



departed, after kicking the unconscious guard one more time.  The entire assault was  

                                                                                                                               



captured on video from three different angles and introduced into evidence at trial.  

                                                                                                                        



                    The security guard suffered extensive injury as a result of the assault; he  

                                                                                                                                 



was hospitalized and could not return to work for months.  His jaw was wired shut, and  

                                                                                                                                



he underwent multiple surgeries to reconstruct his face and right eye.  He now wears  

                                                                                                                            



dentures for his lost teeth and special glasses to alleviate the double vision he suffers  

                                                                                                                           



from a detached retina in his left eye.  

                                                           



                    The hotel concierge was also transported to the hospital.   His arm was  

                                                                                                                               



broken in three places, and he spent six weeks with his arm in a cast. His radius and ulna  

                                                                                                                               



were permanently curved by seven degrees as a result of the assault.  (He testified that  

                                                                                              



he  could  have  this  curvature  fixed  but  declined  surgery  because  he  did  not  feel  

                                                                                                                              



comfortable with people placing a titanium rod and screws in his arm.)  

                                                                                                               



                    When Hedrick was arrested, he told the police that the security guard had  

                                                                                                                                



come into his personal space and threatened him and that he had defended himself.  

                                                                                                                    



                                                               -  3 -                                                         2676
  


----------------------- Page 4-----------------------

               Procedural history   



                              A grand jury indicted Hedrick on two counts of first-degree assault against                                                                        



the security guard under two different theories - (1) that Hedrick had acted with the                                                                                                     



intent to cause serious physical injury to the guard; and (2) that Hedrick had knowingly                                                                                 



engaged   in   conduct   that   resulted   in   serious   physical   injury   to   the   guard   under  

circumstances manifesting an extreme indifference to the value of human life.                                                                                                 1  



                                                                                                                                                                                  

                              The grand juryalso indicted Hedrick on one count of second-degree assault  



                                                                                                                                                                                 

against the concierge for recklessly causing him serious physical injury (i.e., his broken  



            2  

arm).   



                                                                                                                                                                             

                              At  a  status  hearing  four  days  before  trial  began,  Hedrick's  attorney  



                                                                                                                                                                                   

indicated that Hedrick wanted to waive his right to a jury trial and proceed with a bench  



                                                                                                                                                                                            

trial.  After personally addressing Hedrick, the superior court found that there was "a  



                                                                                                                                                                            

free, voluntary, and knowing decision to waive a jury trial and to have the case presented  



                                                                                                                                                                                     

to [the court] for a bench trial." Hedrick, his attorney, the prosecutor, and the trial judge  



                                                                                                                                                                                    

also signed a "Waiver of Trial by Jury" form, which listed the offenses charged.  



                                                                                                                                                                                         

                              The  factual  dispute  at  trial  centered  on  Hedrick's  mental  state  -  



                                                                                                                                                                                        

specifically, whether he intended to cause physical injury to the security guard and  



                                                                                                                                                                                         

whether heacted under circumstances manifesting an extremeindifferenceto human life.  



                                                                                                                                                                                    

Hedrick testified that he had watched the videos and now realized that the security guard  



                                                                                                                                                                                    

had done nothing to provoke the assault. But Hedrick explained that he felt under attack  



                                                                                                                                                                            

at the time because of the mental upset he was experiencing and because of his traumatic  



                                                                                                                                                                               

childhood.  In support of this claim, Hedrick's attorney introduced evidence, through  



        1      AS 11.41.200(a)(2) and AS 11.41.200(a)(3), respectively.  



       2       AS 11.41.210(a)(2).  



                                                                                           - 4 -                                                                                       2676
  


----------------------- Page 5-----------------------

Hedrick's mother, that Hedrick's father was physically and emotionally abusive and that                                                                                                                                                                                                                                                                                                                                                                      



Hedrick had witnessed extensive domestic violence in the home.                                                                                                                                                                                                                                                            



                                                                        On the first day of trial, the prosecutor stated that he intended to ask the                                                                                                                                                                                                                                                                                                           



 court to find that the first-degree assault on the security guard was a "worst offense,"                                                                                                                                                                                                                                                                                      



 explaining that it would "rest most definitely on the video and the photographs that                                                                                                                                                                                                                                                                                                                                                                     



 already the court has."                                                                                                        Hedrick's attorney did not object.                                                                                                                                                                   At the conclusion of the                                                                                                 



 closing arguments the next day, the prosecutor clarified that he was actually asking the                                                                                                                                                                                                                                                                                                                                                                       



 court to find the statutory aggravator under AS 12.55.155(c)(10) - that Hedrick's                                                                                                                                                                                                                                                                                                                                       



 conduct was "among the most serious conduct included in the definition of the offense."                                                                                                                                                                                                                                                                                                                                                                                           



Hedrick's attorney again did not object to this request.                                                                                                                                                                                                  



                                                                        During closing arguments, the defense attorney acknowledged that the                                                                                                                                                                                                                                                                                                                 



videos showed "one of the worst assaults [she'd] seen in [her] time as a lawyer." But she                                                                                                                                                                                                                                                                                                                                                                      



 argued that the videos did not tell the full story - there was other evidence, including                                                                                                                                                                                                                                              



that of Hedrick's intoxication and his history of abuse, that created reasonable doubt as                                                                                                                                                                                                                                                                                                                                                                            



to whether Hedrick actually intended to seriously injure the security guard and whether                                                                                                                                                                                                                                                                                                                                              



he acted under circumstances manifesting an extreme indifference to the value of human                                                                                                                                                                                                                                                                                                                                                      



life.    With respect to the second-degree assault, the defense attorney argued that the                                                                                                                                                                                                                                                                                                                                                                      



 concierge did not suffer "serious physical injury" under the statute because he did not                                                                                                                                                                                                                                                                                                                                                                      



have protracted loss of the use of his arm and could have elected to have surgery to                                                                                                                                                                                                                                                                                                                                                                                

prevent permanent disfigurement.                                                                                                                                                       3  



                                                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                        The superior court took the matter under advisement and issued findings  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                

the next day. The court found Hedrick guilty of all three assaults, ultimately merging the  



                                                                                                                                                                                                                                                                                                                                                                                                                                          

two first-degree assault counts. The court also found the (c)(10) aggravator with respect  



                  3                 See AS 11.81.900(b)(59)(B) (defining "serious physical injury" as "physical injury  



                                                                                                                                                                                                                                                                                                                                                                                        

that causes serious and protracted disfigurement, protracted impairment of health, protracted  

loss or impairment of the function of a body member or organ").  



                                                                                                                                                                                                                            -  5 -                                                                                                                                                                                                                        2676
  


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

to the merged first-degree assault conviction, explaining that "[a]bsent any dangerous                                                                                                                                                                                                                                                                   



 instrument being used, that was as vicious an attack as I've ever seen in my career."                                                                                                                                                                                                                                                                    



                                                             As a second felony offender, Hedrick faced a presumptive range of 8 to 12                                                                                                                                                                                                                                                        



years for the merged first-degree assault conviction and a presumptive range of 2 to 5                                                                                                                                                                                                                                                                                                            



years for the second-degree assault conviction. The superior court also had the authority                                                                                                                                                                                                                                                                       



to sentence Hedrick up to the 20-year maximum sentence for the first-degree assault                                                                                                                                                                                                                                                                                      



based on the court's finding of the (c)(10) statutory aggravator.                                                                                                                                                                           



                                                             At sentencing, the superior court imposed the maximum sentence of 20                                                                                                                                                                                                                                                            



years for the merged first-degree assault conviction.                                                                                                                                                                                      The court also imposed 3 years for                                                                                                               



the   second-degree   assault   conviction,   with   18   months   consecutive   and   18   months  



 concurrent to the first-degree assault conviction - for a composite sentence of 21 years                                                                                                                                                                                                                                                                                        



 and 6 months to serve.                                                                                  This appeal followed.                                      



                              Hedrick's claim that the superior court failed to adequately advise him of                                                                                                                                                                                                                                                         

                               his right to a jury trial                                                        



                                                             The Alaska and United States constitutions guarantee a defendant charged                                                                                                                                                                                                                                



                                                                                                                                                                              4  

with a crime the right to a trial by jury.                                                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                       However, a defendant may waive their right to  



                                                                                                                                                                                                                                                                                                                                                                           

 a jury trial under Alaska Criminal Rule 23(a).  This rule requires that waivers in felony  



                                                                                                                                                                                                                                                                                                                                                                                                              

 cases be done in writing with the approval of the trial court and the consent of the State.  



               4               U.S. Const. amends. VI, XIV; Alaska Const. art. I,  11.  The Alaska Constitution  



 guarantees the right to a jury trial for all criminal offenses.                                                                                                                                                                                                 See Baker v. City of Fairbanks,  

471 P.2d 386, 401 (Alaska 1970). The United States Constitution limits this right to criminal   

 offenses that include a possible term of imprisonment of more than 6 months.                                                                                                                                                                                                                                                                     See Baldwin   

v. New York, 399 U.S. 66, 69 (1970) (establishing that a defendant is entitled to a jury trial  

whenever the offense for which he is charged authorizes imprisonment for more than 6   

months); see also Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989) (reaffirming  

                                                                                                                                                                                                                                                                

Baldwin, where the Court determined that the "possibilityof a sentence exceeding six months  

 . . . is 'sufficiently severe by itself' to require the opportunity for a jury trial").  



                                                                                                                                                                                          -  6 -                                                                                                                                                                                      2676
  


----------------------- Page 7-----------------------

The written waiver must be combined with an adequate personal inquiry of the defendant                                                 

by the trial court to ensure "the waiver is voluntary and knowing."                                                 5  



                                                                                                                                            

                       Here, therecord shows that Hedrick executedboth awrittenand oral waiver  



                                                                                                                                         

of his right to a jury trial. The oral waiver was accomplished on the record and included  



                                                                                       

the following personal inquiry of Hedrick by the court:  



                                                                                                                           

                                   The Court:  All right.  Mr. Hedrick, your attorney has  

                                                                                                                          

                       advised me that at this point you're prepared to waive a jury  

                                                                                                                          

                       trial and have the case tried as a bench trial to me.  Is that  

                       correct?  



                                                                      

                                   Mr. Hedrick :  Yes, sir.
  



                                                                                                                         

                                   The Court:  All right.  And have you had enough time
  

                                                                                     

                       to talk to your attorneys about this decision?  



                                                                      

                                   Mr. Hedrick :  Yes, sir.  



                                                                                                                     

                                   The  Court:             And  are  you  satisfied  with  the  advice  

                                       

                       given to you?  



                                                             

                                   Mr. Hedrick :  Yes.  



                                                                                                                          

                                   The Court: And by doing this, I need to make sure that  

                                                                                                            

                       you're doing this freely and voluntarily.  Is that correct?  



                                                                                

                                   Mr. Hedrick :  Yes, Your Honor.  



                                                                                                                            

                                   The  Court:             And  nobody  has  made  any  threat  or  

                                                                                         

                       promise to cause you to waive a jury trial.  



                                                                              

                                   Mr. Hedrick :  No, Your Honor.  



                                                                                                              

                                   The  Court:             All  right.          And  you're  not  under  the  

                                                                                                                      

                       influence of any medication or anything that might affect  

                                                                                                                           

                       your decision in deciding to waive a jury trial and have the  

                                                                                 

                       case presented to me as a bench trial.  



      5      Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978); see Walunga v. State, 630 P.2d  



527, 528 (Alaska 1980) (explaining that Criminal Rule 23(a) "require[s] a personal inquiry  

                                                                                                                      

by the court to determine whether the defendant's waiver is voluntary and knowing").  



                                                                       -  7 -                                                                  2676
  


----------------------- Page 8-----------------------

                                                                                                    Mr. Hedrick                                                     :   Yeah, I -
                                                 



                                                                                                     The Court                                           :   That's what you want to do?
                                                                                                     



                                                                                                    Mr. Hedrick                                                     :   Yes.
  



                                                                                                     The Court                                          : All right. I'll find there's a free, voluntary,
                                                                                                                  

                                                                   and knowing decision to waive a jury trial and to have the                                                                                                                                                                                                                                  

                                                                   case presented to me for a bench trial.                                                                                                                               



                                                                   In addition to this exchange, Hedrick signed a court form titled "Waiver of                                                                                                                                                                                                                                                                                          



Trial by Jury."                                                             The waiver stated:                                                                                 "I have been advised of my right to trial by jury.                                                                                                                                                                                                         I  



waive trial by jury and request that I be tried by the court."                                                                                                                                                                                                                                           The waiver listed the three                                                                                     



charges Hedrick faced:                                                                                                  "AS 11.41.210(a)(2):                                                                                                Assault 2 -                                             Serious Injury, Reckless";                                                             



"AS 11.41.200(a)(3):                                                                                            Assault 1 -                                                  Serious Injury, Extreme Indif"; and "AS 11.41.-                                                                                                                                                                                



200(a)(2):   Assault 1 -      Serious Injury, Intent."                                                                                                                                                                                    This written waiver was also signed by                                                                                                                                                     



Hedrick's attorney, the prosecutor, and the trial court.                                                                                                                                                                                                                         



                                                                   Onappeal, Hedrickarguesthatthepersonalinquirywas inadequatebecause                                                                                                                                                                                                                                                                      



the superior court failed to describe the benefits of a jury trial in detail, as well as the                                                                                                                                                                                                                                                                                                                                     



elements of each offense, before accepting Hedrick's waiver of his right to jury trial.                                                                                                                                                                                                                                                                                                                           



                                                                   We do not agree with Hedrick that the court's inquiry was inadequate as                                                                                                                                                                                                                                                                                             



a matter of law. The underlying question is whether Hedrick was provided with enough                                                                                                                                                                                                                                                                                                                         



information to ensure that he knowingly waived his right to a jury trial. Here, the record                                                                                                                                                                                                                                                                                                                        



 shows that the trial court personally addressed Hedrick and specifically explained the                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                          6  

consequences of waiving a jury trial.                                                                                                                                                          



                 6               See   White  v.  State,  2007  WL  1098426,  at  *4  (Alaska  App.  Apr.  11,  2007)  



(unpublished) (upholding waiver of the right to a jury trial where the "record, viewed as a                                                                                                                                                                                                                                                                                                                                                  

whole, demonstrate[d] that [the defendant] understood and personally chose to waive jury   

trial"  and  showed  "that  [the  superior  court]  addressed  [the  defendant]  personally   and  

explained the key differences between a jury and a bench trial").   



                                                                                                                                                                                                              -  8 -                                                                                                                                                                                                         2676
  


----------------------- Page 9-----------------------

                       In support of his claim, Hedrick cites                          McGlauflin v. State               -a case in which         



                                                                                                                   7  

we found the trial court's colloquy with the defendant inadequate.                                                                               

                                                                                                                       But Hedrick's case  



                                                                                                                                              

is distinguishable from McGlauflin, where the trial court only asked McGlauflin a single  



                                                                                          8  

                                                                                                                                     

                                                                                             We found this inquiry insufficient  

question: "[A]re you . . . willing to waive the jury?" 



                                                                                                                                                    

because the trial court failed to explain that waiving the right to a jury trial meant that the  



                                                    9  

                                                       

court would be the factfinder. 



                                                                                                                                                     

                       Here, in contrast, the trial court did make clear that by waiving his right to  



                                                                                                                                                   

a jury trial, Hedrick was agreeing to have the trial court decide his guilt.  Although the  



                                                                                                                                                 

trial court could have gone into more detail about the important features of a jury trial,  



                                                                                                                                                     

the inquiry that occurred was in accord with other inquiries that have been upheld as  

adequate.10  



                                                                                                                                         

                        The court also confirmed with Hedrick that he was not under the influence  



                                                                                                                                              

of medication and that there were no other influences that affected his decision to waive  



                                                                                                                                                   

his right to a jury trial and have his case decided by the court.  In addition, Hedrick did  



                                                                                                                                               

not hesitate or  show any  confusion  about the rights he was waiving.                                                            Given  these  



                                                                                                                                              

circumstances, we reject Hedrick's claim that the trial court failed to adequately advise  



                                                                                                                              

him of his right to a jury trial before accepting his waiver of that right.  



      7     McGlauflin v. State , 857 P.2d 366 (Alaska App. 1993).  



      8     Id. at 368.  



      9     Id. at 369.  



      10    See Dolchok v. State, 639 P.2d 277, 279 n.4 (Alaska 1982);  Walunga, 630 P.2d at 528  



n.6 (Alaska 1980).  



                                                                        - 9 -                                                                   2676
  


----------------------- Page 10-----------------------

                      Hedrick also argues that, under the Alaska Supreme Court's case                                                Hutton  



                                                                                                                                       11  

v.  State, the superior court was required to describe the elements of each offense.                                                       But  



                                                                                                                                         

Hutton is distinguishable on its facts.  Hutton was charged with three offenses - first-,  



                                                                                                                                 

second-, and third-degreeweapons misconduct. AtHutton's request,thecourtbifurcated  



                                                                                                                                               

his trial so that the first- and second-degree weapons misconduct charges were tried to  



                                                                                                                                   

the jury first.   At this initial trial, the jury convicted Hutton of first-degree weapons  



                                                                                                                                      

misconduct, acquitted himofsecond-degreeweaponsmisconduct,andfound, in aspecial  



                                                                                                                        12  

                                                                                                                                      

interrogatory, that Hutton knowingly possessed a concealable firearm.                                                        This special  



                                                                                                                                  

interrogatory constituted a guilty finding by a jury on one of the elements of the third- 



                                                               

degree weapons misconduct charge.  



                                                                                                                                  

                      However,  there  were  two  elements  left  of  the  third-degree  weapons  



                                                                                                                                          

misconduct charge that still remained to be tried to a jury - whether Hutton had a prior  



                                                                                                                              

felony  conviction  and  whether  he  had  acted  in  reckless  disregard  of  that  felony  



                                                                                                     13  

                                                                                        

conviction at the time he possessed the concealable firearm. 



                                                                                                                               

                      Hutton subsequently waived his right to a jury trial on the prior convictions  



                                                                                                                                              

element.  But Hutton was never advised of, and never waived, his right to a jury trial on  



                                                                                                                                        

the "reckless disregard"  mens rea  element.   On appeal, the Alaska Supreme Court  



      11   Hutton v. State, 350 P.3d 793 (Alaska 2015).  



      12   Id. at 794.  



      13   Id. at 798-99; see AS 11.61.200(a)(1) (third-degree weapons misconduct);  Afcan v.  



State,   711  P.2d  1198,  1199  (Alaska  App.  1986)  (explaining   that  "recklessness  [is]  the  

applicable, culpable mental state with respect to the circumstances of [the] offense" and                                                   

therefore "it was necessary for the state to establish that [the defendant] was aware of or                                                   

recklessly disregarded the fact that he had been convicted of a felony").  



                                                                    -  10 -                                                               2676
  


----------------------- Page 11-----------------------

vacated   Hutton's  conviction   for   third-degree   weapons   misconduct,   finding   that   his  

waiver of jury trial was incomplete.                          14  



                                                                                                                     

                       Here, in contrast to Hutton, Hedrick did not waive his right to a jury trial  



                                                                                                                                             

on some, but not all, of the elements of a charged offense.  Instead, he waived his right  



                                                                                                                                     

to a jury trial on all three charged offenses.   Hutton was informed of the elements  



                                                                                                                        

through his indictment, which included the elements of each offense.  The elements of  



                                                                                                                                                 

each offense were also listed - albeit, in shorthand fashion - in the written waiver of  



                                                                                                                                            

jury trial that Hedrick executed and that his attorney, the prosecutor, and the trial court  



                                                                                                                                              

judge all signed.  Notably, Hedrick has pointed to nothing in the record to suggest that  



                                                                                                                          

he was confused about the nature of the charges or the elements of the offenses.  



                                                                                                                                                  

                       Accordingly, we reject Hedrick's claim that his jury waiver was invalid as  



                                                                                                                                      

a matter of law because the superior court failed to advise him of the specific elements  



                                           

of the charged offenses.  



                                                                                                                                 

            Hedrick's claim that he never knowingly and intelligently waived his right  

                                                                                                                              

            to   a   jury   trial   on   the   "most   serious"   aggravating   factor   under  

                  

           AS 12.55.155(c)(10)  



                                                                                                                                             

                       Pursuant to the United States Supreme Court decisions in Apprendi v. New  



             15                                          16                                                   17  

Jersey,                                                                                                                                  

                 Blakely v. Washington,                     and United States v. Booker,                         the state and federal  



      14    Id. at 799.  



      15    Apprendi v. New Jersey                  , 530 U.S. 466, 490 (2000) ("Other than the fact of a prior   



conviction, any fact that increases the penalty for a crime beyond the prescribed statutory     

maximum must be submitted to a jury, and proved beyond a reasonable doubt.").  



      16    Blakely v. Washington, 542 U.S. 296, 303-04 (2004) ("[T]he 'statutory maximum' for  

                                                                                                                              

Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the  

                                                                                                                                                

facts reflected in the jury verdict or admitted by the defendant.  In other words, the relevant  

                                                                                                        

                                                                                                                              (continued...)  



                                                                     -  11 -                                                                 2676
  


----------------------- Page 12-----------------------

constitutional right to a jury trial extends to any fact (other than a prior conviction) that                                                                                                                                                                                                                                                                                         



increases the maximum sentence a judge may impose. In accordance with this principle,                                                                                                                                                                                                                                                                        



AS12.55.155(f)(2) providesthat"                                                                                                                     Blakely  aggravators" -                                                                                         i.e.,statutory aggravators                                                                                         that  



do not rely on prior convictions - must be presented to a trial jury unless the defendant                                                                                                                                                                                                                                                                  



"waives trial by jury, stipulates to the existence of the factor, or consents to have the                                                                                                                                                                                                                                                                                                



factor proven under procedures set out in [AS 12.55.155(f)(1)]."                                                                                                                                                   



                                                             Hedrick argues that because he never expressly waived his right to a jury                                                                                                                                                                                                                                          



trial on the "most serious" aggravating factor under AS 12.55.155(c)(10) (a                                                                                                                                                                                                                                                                                        Blakely  



aggravator), the superior court was precluded fromfinding this aggravator at sentencing.                                                                                                                                                                                                                                                                                                                    



The State argues that the superior court did not err in finding the aggravator because                                                                                                                                                                                                                                                                             



Hedrick's   waiver   of   his   right   to   a   jury   trial   on  the charged                                                                                                                                                                                                               offenses   automatically  



included waiver of his right to a jury trial on any statutory aggravators that might apply.                                                                                                                                                                                                                                                                                                                 



According to the State, "waiver of the right to a jury trial includes both the guilt and                                                                                                                                                                                                                                                                      



 sentencing phases of the case."                                                                                 



                                                             We disagree with the State that waiver should be presumed under these                                                                                                                                                                                                                                              



circumstances.    Here, the record shows that Hedrick had no notice of the proposed                                                                                                                                                                                                                                                                         



 statutory aggravator until                                                                                        after  Hedrick had waived his right to a jury trial and the bench                                                                                                                                                                                         



trial had already commenced.                                                                                                            Because Hedrick was not on notice of the aggravator at                                                                                                                                                                                                  



the time he waived his right to a jury trial, we conclude that his waiver cannot reasonably                                                                                                                                                                                                                                                            



be interpreted as including a knowing and voluntary waiver of his right to a jury trial on                                                                                                                                                                                                                                                                                                   



                16             (...continued)  



 'statutory  maximum'  is  not  the  maximum  sentence  a  judge  may  impose  after  finding  

                                                                                                                                                                                                                                                                                                         

additional facts, but the maximum he may impose without any additional findings.").  



                17             United States v. Booker, 543 U.S. 220, 244 (2005) (reaffirming Apprendi 's holding  



                                                                                                                                                                                                                                                                                                        

that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence  

                                                                                                                                                                                                                                                                                                                                                                 

exceeding the maximum authorized by the facts established by a plea of guilty or a jury  

                                                                                                                                                                                                                                                                          

verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt").  



                                                                                                                                                                                       -  12 -                                                                                                                                                                                       2676
  


----------------------- Page 13-----------------------

the statutory aggravator. We express no opinion as to whether waiver could be presumed                                                                                                                  



in  circumstances   where   the   State   provides   timely   pretrial   notice   of   the   proposed  



aggravator(s).   



                                   Having concluded that Hedrick did not knowingly waive his right to a jury                                                                                                         



trial on the "most serious" aggravator, we now turn to the question of prejudice.                                                                                                                                    The  



State argues that there was overwhelming evidence that Hedrick's conduct was "among                                                                                                                          



the most serious" and therefore any error was harmless beyond a reasonable doubt.                                                                                                                                                   



Hedrick argues that this type of error is structural and not susceptible to a harmlessness                                                                                                    



analysis.   Hedrick recognizes that we have previously held otherwise in                                                                                                                      Milligrock v.   

State, but he asserts that                                      Milligrock  is wrongly decided and should be overturned.                                                                                             18  



                                                                                                                                                                                                              

                                   Weneed not reachthequestion ofwhether Milligrock was wrongly decided  



                                                                                                                                                                                                                                    

because we conclude that a remand is required under the circumstances presented here.  



                                                                                                                                                                                                                              

In Milligrock, we were able to conclude that the Blakely error was harmless beyond a  



                                                                                                                                                                                                      

reasonable doubt because the factual underpinnings of the "same household" aggravator  



                                             19  

were undisputed.                                                          

                                                    But that is not the case with the "most serious" aggravator at issue  



                                                                                                                                                                                                                        

here.  Although the defense attorney conceded the overall brutality of the assaults, she  



                                                                                                                                                                                                                  

made various factual arguments about why the assaults should nevertheless not be found  



                                                         20  

                                                                                                                                                                                                       

to be "most serious."                                            Because a jury might have resolved those factual questions  



         18      Milligrock v. State , 118 P.3d 11, 16 (Alaska App. 2005) (approvingly citing United   



States Supreme Court decisions holding that "courts must apply a harmless error analysis      

when assessing the effect of Sixth Amendment errors").   



         19  

                          

                 Id. at 17 (explaining that "the evidence was undisputed that Milligrock's assault was  

                                                                                                                                    

committed upon a woman who had lived with him for five years and who had born his  

child").  



         20  

                           

                  Cf. State v. Parker, 147 P.3d 690, 695 (Alaska 2006) ("The legislature intended for  

                                                                                                                                                            

the 'most serious' aggravating factor and the 'least serious' mitigating factor to have a  

                                                                                                                                                                                                (continued...)  



                                                                                                         -  13 -                                                                                                      2676
  


----------------------- Page 14-----------------------

 differently   than   the   judge   and   might   therefore   have   reached   a   different   conclusion  



regarding the existence of the aggravator, we cannot say that the error was harmless                                                                     



beyond a reasonable doubt, and we therefore conclude that a remand is required.                                                                                  



                          At   the   resentencing,   the   State   is   entitled   to   pursue   any   non-Blakely  



                                                                                                                                                            21 

                                                                                                                                                                   

 aggravators (  i.e., statutory aggravators based on a defendant's prior convictions                                                                           ) that  



                                                                                                                                                                 

might apply -including, but not limited to, the (c)(19) aggravator identified by the State  



                                               22  

                                                                                                                                                    

 in its briefing on appeal.                         If, however, the State intends to pursue statutory aggravators  



                                                                                                                                                                

that require a jury trial, the superior court must either hold a jury trial or obtain a valid  



                                                             23  

                                             

jury trial waiver from Hedrick. 



              Conclusion  



                                                                                                                                                                    

                           Hedrick's convictions areAFFIRMED,but his sentence is VACATEDand  



                                                                                               

this case is remanded to the superior court for a resentencing.  



       20     (...continued)  



 limited scope.").  



       21    See AS 12.55.155(f)(1).  



       22    See AS 12.55.155(c)(19) (defendant's prior criminal history includes an adjudication   



 as a delinquent for conduct that would have been a felony if committed by an adult).   



       23    See AS 12.55.155(f)(2).  



                                                                               -  14 -                                                                           2676
  


----------------------- Page 15-----------------------

Judge WOLLENBERG, concurring.                                 



                                 I agree with the Court that the colloquy regarding Hedrick's jury trial                                                                                                    



                                                                                                                   1  

                                                                                                                                                                                                              

waiver was adequate under Alaska case law.                                                                               As Professor LaFave explains in his  



                                                                                                                                                                                                      

treatiseon criminal procedure, although courts differ on precisely what a jury trial waiver  



                                                                                                                                                                                                              

colloquy should include, "detailed explanations about the jury right are generally not  



                             2  

necessary."                                                                                                                                                                                                

                                  Here, the trial court made clear that, by waiving his right to a jury trial,  



                                                                                                                                                                                                           

Hedrick  was agreeing to  have the trial court decide his guilt.                                                                                                    The trial court also  



                                                                                                                                                                                                          

questioned Hedrick about whether he was under the influence of any medication or other  



                                                                                                                                                                                         

substances that might affect his decision-making, whether his waiver was the result of  



                                                                                                                                                                                                           

any improper threats or inducements, and whether he had sufficient time to speak with  



         

his attorney.  



                                                                                                                                                                                                 

                                 At the same time, federal and state courts around the country strongly  



                                                                                                                                                                                                                    

recommend that - as a matter of best practice - a jury waiver colloquy also include a  



                                                                                                                                                                                                

description of the salient features of a jury trial.  These courts recognize that engaging  



                                                                                                                                                                                                     

a criminal defendant in a robust oral colloquy helps ensure that the defendant's waiver  



         1       See, e.g., Walunga v. State, 630 P.2d 527, 528 n.6 (Alaska 1980).  



        2        6 Wayne R. LaFave et al., Criminal Procedure   22.1(h), at 44 (4th ed. 2015); see also  



People v. Sivongxxay, 396 P.3d 424, 436 (Cal. 2017) ("[W]e have never insisted that a jury  

waiver colloquy invariably must discuss juror impartiality, the unanimity requirement, or                                                                                        

both for an ensuing waiver to be knowing and intelligent."); Davis v. State, 809 A.2d 565,  

569-70  (Del.  2002)  ("The  determination  of   whether  there  has  been  an   intelligent   and  

voluntary waiver depends upon the 'totality of the circumstances surrounding the particular                   

case, including the background, experience and conduct of the accused.'" (quoting                                                                                                                   Mealey  

v. State, 347 A.2d 651, 652 (Del. 1975))); Commonwealth v. Hardy                                                                                              , 693 N.E.2d 1365, 1367   

(Mass. 1998) ("[N]o rigid pattern . . . must invariably be followed in conducting a colloquy   

before accepting a waiver of the right to trial by jury." (internal quotation marks omitted)).   



                                                                                                    -  15 -                                                                                                2676
  


----------------------- Page 16-----------------------

 of the right to jury trial is both knowing and voluntary - and avoids later claims of an                                                                                                                                                               



 invalid waiver.                               



                                        Almost uniformly, these courts encourage trial judges to advise defendants                                                                                                             



 about the following four characteristics of a jury trial:                                                                                       



                                        (1)   a jury is comprised of twelve community members (in                                                                                                              

                                        felony cases) or six community members (in misdemeanor                                                                                  

                                        cases);  



                                        (2)   the   defendant's   attorney   (or   the   defendant,   if   self- 

                                        represented)  may participate in the selection of the jurors                                                                                                 

                                        from the panel summoned for jury service;                                                              



                                        (3)  the jury's verdict must be unanimous; and                                                                             



                                        (4)   if the defendant waives the right to a jury trial, the                                                                                           

                                       judge alone will decide guilt or innocence.                                                                                   3  



          3         See, e.g.,  United States v. Shorty, 741 F.3d 961, 966 (9th Cir. 2013);  United States v.  



Lilly , 536 F.3d 190, 198 (3d Cir. 2008);  United States v. Robertson, 45 F.3d 1423, 1432 (10th  

 Cir. 1995);  Marone v. United States , 10 F.3d 65, 68 (2d Cir. 1993); United States v. Martin,  

 704 F.2d 267, 274-75 (6th Cir. 1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir.  

 1981), abrogated on other grounds, United States v. Rodriguez, 888 F.2d 519, 527-28 (7th  

                                                                                                                                              

 Cir. 1989); Sivongxxay, 396 P.3d at 437; State v. Feregrino, 756 N.W.2d 700, 706 (Iowa  

 2008); Ciummei v. Commonwealth, 392 N.E.2d 1186, 1189-90 (Mass. 1979); State v. Ross,  

 472 N.W.2d 651, 654 (Minn. 1991); State v. Redden, 487 S.E.2d 318, 326 (W. Va. 1997);  

                                           

see also State v. Blann, 90 A.3d 1253, 1253 (N.J. 2014) (requiring that "an official jury  

                                                                                 

 waiver form containing the . . . four items be prepared for use" and that "trial judges engage  

                                                                                                                                                                               

 in a colloquy with defendants that includes those four items, at a minimum, to assess the  

                                                                                                                                                                                                                                                   

 voluntariness of a waiver request");  Commonwealth v. Williams, 312 A.2d 597, 600 (Pa.  

                                                                                                                                                                                            

 1973) (holding that, for a defendant to knowingly and intelligently waive the right to a jury  

                                                                                                                                                                                           

 trial, the defendant must know "the essential ingredients of a jury trial," including that the  

                                                                                                             

jurors will be drawn from members of the community, that the verdict must be unanimous,  

 and that the defendant will be allowed to participate in jury selection).  



                                                                                                                       -  16 -                                                                                                                    2676
  


----------------------- Page 17-----------------------

These   advisements   are   in   addition   to   those   case-specific   inquiries   that   trial   judges  



regularly make to ensure that a defendant's waiver of rights is knowing and voluntary   

-  inquiries like those made by the trial judge in this case.                                 4  



                                                                                                                                

                      I encourage trial judges to follow this guidance when engaging a criminal  



                                                                                                                                      

defendant in a colloquy regarding the decision to waive the right to a jury trial and have  



                                                                                                                                       

a bench trial.  If defendants are informed on the record of the defining features of a jury  



                                                                                                                               

trial, courts may more confidently answer the critical question of whether a criminal  



                                                                                                                                         

defendant understands that he has the right to have a jury decide the facts of his case -  



                                                                                                                 

and that he is agreeing to forgo that right in favor of having his case decided solely by  



             5  

                

a judge. 



      4    See Sivongxxay, 396 P.3d at 437 (recommending that "the trial judge take additional  



steps as appropriate to ensure, on the record, that the defendant comprehends what the jury  

                                                      

trial right entails" - which may include "asking whether the defendant had an adequate  

                                                                                                        

opportunity to discuss the decision with his or her attorney, . . . asking whether counsel  

                                                                                                             

explained to the defendant the fundamental differences between a jury trial and a bench trial,  

                                                                                                               

or . . . asking the defendant directly if he or she understands or has any questions about the  

                                   

right being waived"); Ciummei, 392 N.E.2d at 1189-90 (declining to create a "rigid pattern"  

                                                                                     

for trial judges conducting a jury trial waiver colloquy but noting that a judge "should make  

sure that the defendant has conferred with his counsel about the waiver, and that he has not  

                                                                                                                                 

been pressured or cajoled and is not intoxicated or otherwise rendered incapable of rational  

judgment").  



      5    See Sivongxxay, 396 P.3d at 437 (recommending that, going forward, trial courts  

                   

advise a criminal defendant of the "basic mechanics of a jury trial in a waiver colloquy" and  

                                                                                                            

"take additional steps as appropriate to ensure, on the record, that the defendant comprehends  

what the jury trial right entails").  



                                                                  -  17 -                                                            2676
  

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