Vandergriff v. State

125 P.3d 360, 2005 Alas. App. LEXIS 140, 2005 WL 3444610

• Court: Court of Appeals of Alaska
• Decided: December 16, 2005
• Docket: A-8946
• Status: Published

Opinions

OPINION

STEWART, Judge.

From December 2003 through February 2004, Norman L. Vandergriff burglarized remote residences outside of Petersburg. He stole several items including boats, an outboard motor, and firearms. He forged a cheek made payable to himself and purportedly signed by one of the victims. The grand jury indicted Vandergriff on nine felony counts.

The parties reached a plea agreement that called for Vandergriff to plead to three class C felonies: second-degree theft; second-degree forgery; and second-degree burglary.¹ There was no agreement on the sentence to be imposed. Under the sentencing law that applied to Vandergriffs case, he faced a presumptive 3-year term on each count because he had five prior felony convictions.²

The superior court imposed a composite 9-year term with 3 years suspended, a net 6-year term to serve. In this sentence appeal, Vandergriff advances several reasons why the superior court erred by imposing this sentence. We reject each claim and affirm the judgment of the superior court.

Background facts and proceedings

The grand jury indicted Vandergriff on four counts of second-degree theft, one count of second-degree forgery, two counts of first-degree burglary,³ and two counts of first-degree vehicle theft.⁴ These charges arose after an investigation by the Alaska State Troopers showed that from December 2003 through February 2004, Vandergriff broke into two remote cabins near Petersburg, stole three firearms, stole two boats, stole an outboard motor, and forged a check bearing the purported signature of one of the victims.

The State and Vandergriff negotiated a plea agreement. Vandergriff agreed to plead to.three counts: second-degree theft; second-degree burglary; and second-degree forgery. The State agreed not to pursue any aggravating factors, and the parties agreed not to restrict the court’s power to impose the sentences on any count concurrent with or consecutive to any other count.

Vandergriff had five prior felony convictions. His first felony conviction occurred in 1970 in Virginia. His most recent felony conviction occurred in 2003 in Florida. Two of the five convictions were burglary charges; three were forgery charges.

Superior Court Judge Michael A. Thompson imposed a 3-year term for second-degree theft, a consecutive 3-year term for second-degree burglary, and a consecutive 3-year term, all suspended, for forgery. Thus, Judge Thompson imposed a composite 9-year term with 3 years suspended. Vander-griff appeals.

Discussion

Does Blakely v. Washington restrict a sentencing court’s authority to impose sentences consecutively?

Vandergriff argues that the United States Supreme Court’s decision in Blakely v. Washington⁵ restricts a sentencing judge’s authority to impose consecutive sentences exceeding the prescribed presumptive term for the defendant’s most serious offense or the maximum term for the defendant’s most serious offense. But under former AS 12.55.025(e) and (g), a sentencing judge’s authority to impose consecutive sentences did not require proof of aggravating factors or other special factual circumstances.

Blakely rests on a principle that the Supreme Court recently repeated in United States v. Booker:⁶ “Any 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.”⁷

Vandergriff argues that any fact-finding by the superior court that justified the composite term exceeding the 3-year presumptive term or the 5-year maximum term is governed by Blakely.

Except for prior convictions, Blakely declares that when a judge’s sentencing authority rests on facts not established by a guilty verdict or by the defendant’s plea or by the defendant’s express concession, the facts must be proved to a jury beyond a reasonable doubt.⁸ But Judge Thompson’s authority to impose consecutive sentences did not depend on proof of additional facts. His authority to impose consecutive sentences was governed by former AS 12.55.025(e) and (g).⁹ Except for exceptions not applicable here, those subsections gave Judge Thompson the discretion to impose the sentences consecutively or concurrently.

We recently addressed the application of Blakely to consecutive sentencing in Edmonds v. State.10 We held that Blakely did not limit a judge’s authority to impose consecutive sentences with the exception of one potential issue that we did not decide in Edmond’s case: Is the fact finding called for by the Neal-Mutschler rule subject to the procedural requirements of Blakely? The Neal-Mutschler rule is a common-law sentencing rule announced by our supreme court; before a sentencing judge imposes consecutive sentences that total more than the maximum sentence for a defendant’s most serious offense, the judge must expressly find that the total sentence is necessary to protect the public.¹¹

Judge Thompson was aware of the Nealr-Mutschler rule; he discussed it during sentencing and elected to impose a term greater than the 5-year maximum for a class C felony in order to protect the public. Van-dergriff mentions the rule in his argument, but he does not cite any cases that discuss whether Blakely applies to the decision to impose sentences consecutively. We mentioned several of those cases in Edmonds, a decision we issued after Vandergriff filed his brief in this case.¹²

In Apprendi and Blakely, a judge’s authority to impose consecutive sentencing was not an issue because Apprendi received concurrent sentences and Blakely was sentenced for a single crime.¹³ In Blakely, the court focused on the division of authority between a judge and a jury:

[T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned[¹⁴]

The facts that a jury finds are not essential to the lawful imposition of consecutive sentencing. When a judge is sentencing a defendant on more than one conviction in a single judgment, whether the multiple convictions arise from guilty verdicts from a jury trial or from more than one guilty or no contest plea, the jury retains its power to find the facts underlying each count and underlying the “statutory maximum” that a judge has authority to impose on any single count. In the usual case, AS 12.55.127(b) permits concurrent sentencing, but in some circumstances, on the basis of the verdicts alone, AS 12.55.127(c) mandates minimum consecutive sentencing depending on the crime.

Furthermore, developing case law supports the conclusion that a sentencing judge’s traditional classification of facts about a defendant’s background and conduct used to impose a term authorized by a verdict, plea, or express concession are not covered by the Blakely right to jury trial.¹⁵

Again, the Nealr-Mutschler rule is a judicially created common-law rule that guides a sentencing judge’s analysis when imposing consecutive sentencing. The rule directs a judge to explain the rationale for imposing a term to serve greater than the maximum term for the single most serious offense. This explanation promotes the legislature’s mandate to eliminate unjustified disparity and attain reasonable uniformity in sentencing because the explanation enables appellate sentencing' review.¹⁶ The rule does not increase the potential sentence a defendant may receive beyond the statutory range of potential sentences already specified by the legislature. Instead, the rule announces that trial judges operating within the range of potential penalties specified by the legislature should exercise their discretion to impose consecutive sentencing beyond the maximum penalty for the most serious offense only after a careful examination of the sentencing criteria.

Considering all the above, we conclude that, when a sentencing judge applying the Nealr-Mutschler rule assesses whether a composite term to serve exceeding the maximum term for the defendant’s single most serious crime is necessary to protect the public, the judge is not required to submit this issue to a jury.

Does a judge applying the Nealr-Mutschler rule have the authority to protect the public from potential property crimes?

Vandergriff argues that Judge Thompson improperly applied the Nealr-Mut-schler rule. Vandergriff claims, without citation to authority, that “when a court speaks of protecting the public, it generally means protecting the public against violent crimes.” Vandergriff argues that a sentence in excess of the maximum term for the most serious offense is not justified because Vandergriffs present offenses and past offenses were property offenses.

This is not the rule illustrated by our ease law. For example, in O’Brannon v. State,¹⁷ we affirmed the superior court’s sentence of 1500 days’ imprisonment with 1125 days suspended on eighteen counts of criminal contempt, which had a maximum penalty of 180 days imprisonment.¹⁸ And in Montes v. State,19 we affirmed the superior court’s imposition of a composite 7-year term, a term that exceeded the 5-year maximum term for each of the five counts of second-degree theft for which Montes had been convicted. We concluded that the superior court imposed the term to protect the public.²⁰

We conclude that Judge Thompson properly applied the Nealr-Mutschler rule to impose a composite term that exceeds the maximum 5-year term for Vandergriffs individual crimes.

Was Vandergriff denied his right of confrontation?

Without citation to any authority, Vandergriff asserts that his right of confrontation was violated because Judge Thompson considered non-testimonial statements of community members.

But a sentencing court may consider statements alleging other misconduct by a defendant unless the defendant takes the stand, enters a testimonial denial of the misconduct, and submits to cross-examination.²¹ Vander-griff did not do this.

Is Vandergriffs sentence excessive?

Finally, Vandergriff argues that his sentence is excessive especially considering the fact that most of his prior convictions were over twenty years old. Vandergriff also points out that he did not have a history of substance abuse and that he was convicted of property crimes. But after Judge Thompson considered Vandergriffs personal history and his present offenses, Judge Thompson reviewed the sentencing criteria and concluded that a 6-year term to serve was warranted. From our review of the record, we conclude that Vandergriffs sentence is not clearly mistaken.²²

Conclusion

Vandergriffs sentence is AFFIRMED.

1 . AS 11.46.130(a)(2) & (b); AS 11.46.505(a) & (b); and AS 11.46.310(a) & (b), respectively.

2 . See former AS 12.55.125(e)(2).

3 .AS 11.46.300.

4 . AS 11.46.360(a)(1).

5 . 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

6 . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

7 . Booker, 125 S.Ct. at 756.

8 . Blakely, 542 U.S. at 301-02, 124 S.Ct. at 2536.

9 . These two sections were repealed in 2004 and replaced with AS 12.55.127, which went into effect on July 1, 2004. See ch. 125, § 9, SLA 2004. Although Vandergriff was sentenced in August 2004, AS 12.55.127 applies to offenses committed on or after July 1, 2004. See ch. 125, § 8, SLA 2004.

10 . 118 P.3d 17 (Alaska App.2005). See also Wright v. State, 46 P.3d 395, 398 (Alaska App.2002) (rejecting Wright's claim that AS 12.55.025(e) was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

11 . See Neal v. State, 628 P.2d 19, 21 (Alaska 1981) ("Our past decisions imply that where consecutive sentences for two or more counts exceed the maximum sentence for any single count, the sentencing judge should make a formal finding that confinement for the combined term is necessary to protect the public.”) (citing Mills v. State, 592 P.2d 1247, 1248 (Alaska 1979), and Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977)); Powell v. State, 88 P.3d 532, 537 (Alaska App.2004) (applying the Neal-Mutschler rule based on belief defendant was a poor candidate for rehabilitation).

12 . See Edmonds, 118 P.3d at 21; Brown v. Greiner, 409 F.3d 523, 533 (2nd Cir.2005); State v. Rivera, 106 Hawaii 146, 102 P.3d 1044, 1055-56, 1059-62 (2004) (citing People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, 200 n. 8 (2005); State v. Satterwhite, 2005 WL 1356445 at *6 (Ohio App. 10 Dist. June 9, 2005); State v. Lett, 161 Ohio App.3d 274, 829 N.E.2d 1281, 1289-92 (8 Dist.2005) (en banc)). See also People v. Black, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534, 548-50 (2005); State v. Senske, 692 N.W.2d 743, 747-48 (Minn.App.2005); State v. Kinney, 125 Wash.App. 778, 106 P.3d 274, 275-77 (1 Div.2005).

13 . Apprendi, 530 U.S. at 470, 120 S.Ct. at 2352; Blakely, 542 U.S. at 298, 124 S.Ct. at 2534.

14 . Blakely, 542 U.S. at 308-09, 124 S.Ct. at 2540.

15 . See Edmonds, 118 P.3d at 21; Simon v. State, 121 P.3d 815, 820 (Alaska App.2005); State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 202 (2005); Black, 29 Cal.Rptr.3d 740, 113 P.3d at 543; State v. Martinez, 210 Ariz. 578, 115 P.3d 618, 623 (2005).

16 .AS 12.55.005.

17 . 812 P.2d 222 (Alaska App.1991).

18 . Id. at 232.

19 . 669 P.2d 961 (Alaska App. 1983).

20 . Id. at 967-68.

21 . Evans v. State, 23 P.3d 650, 652 (Alaska App.2001); Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989).

22 . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing court's decision unless the sentence is clearly mistaken).