Lockuk v. State

Citation153 P.3d 1012
Decision Date16 March 2007
Docket NumberNo. A-9534.,A-9534.
PartiesSaul LOCKUK Sr., Appellant, v. STATE of Alaska, Appellee.
CourtCourt of Appeals of Alaska

David W. Miner, Seattle, WA, for the Appellant.

Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

MANNHEIMER, Judge.

In 2002, Saul Lockuk Sr. was convicted of third-degree assault. This crime is a class C felony with a maximum sentence of 5 years' imprisonment.1 Because Lockuk was a first felony offender, his sentencing was governed by former AS 12.55.125(k)(2). This statute provided that the "time to serve" component of Lockuk's sentence could not exceed 2 years' imprisonment (the presumptive term that would apply to a second felony offender convicted of the same offense2) unless the State proved one or more of the aggravating factors listed in AS 12.55.155(c) or extraordinary circumstances as defined in AS 12.55.165.

In order to justify a sentence of more than 2 years to serve, the State proposed four aggravating factors: (c)(8)—that Lockuk's criminal history included aggravated or repeated instances of assaultive behavior; (c)(9)—that Lockuk knew that his offense involved more than one victim; (c)(21)—that Lockuk had a history of criminal acts similar in nature to his current offense; and (c)(28)—that Lockuk's offense was directed against a person who had provided testimony or other evidence against Lockuk in another criminal proceeding.

The State's proof of aggravating factors (c)(8) and (c)(21) rested on the fact that Lockuk had seven prior convictions for misdemeanor assault, as well as one prior conviction for resisting arrest.

At Lockuk's sentencing hearing, the parties discussed the State's proposed aggravators. Lockuk's attorney objected to aggravators (c)(9) and (c)(28), but he offered no objection to aggravators (c)(8) and (c)(21)— that is, the two aggravators that were based on Lockuk's prior convictions.

Superior Court Judge Fred Torrisi found that the State had proved three of its four proposed aggravators: (c)(8) (prior assaultive conduct); (c)(21) (history of similar criminal offenses); and (c)(28) (offense committed upon a person who had previously offered evidence against the defendant).

Employing the sentencing authority afforded by these aggravating factors, Judge Torrisi sentenced Lockuk to 5 years' imprisonment with 1 year suspended (i.e., 4 years to serve).

Lockuk's sentencing took place at the end of May 2002. Two years later, in June 2004, the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court held that the Sixth Amendment guarantees criminal defendants the right to jury trial (and the right to demand proof beyond a reasonable doubt) on any issue of fact—other than a prior conviction —which, if resolved against the defendant, would subject the defendant to a higher maximum sentence than would otherwise be authorized by the jury's verdict.

In October 2005, Lockuk filed a motion under Alaska Criminal Rule 35(a), contending that he had been subjected to an illegal sentence. Lockuk's argument was based on Blakely.

Lockuk pointed out that, under former AS 12.55.125(k)(2), the "time to serve" component of his sentence would have been limited to 2 years' imprisonment if the State had not proved aggravators. Lockuk then argued that he was denied his constitutional rights to grand jury indictment, jury trial, and proof beyond a reasonable doubt because (1) the State raised these aggravators in a post-trial pleading, rather than submitting them to a grand jury for inclusion in the indictment; (2) Judge Torrisi made the rulings on these aggravators himself, rather than submitting these issues to a jury; and (3) Judge Torrisi applied a "clear and convincing evidence" standard of proof (the standard of proof specified in former AS 12.55.155(f)) rather than employing the "beyond a reasonable doubt" standard of proof specified in Blakely.

Lockuk conceded that two of the aggravators, (c)(8) and (c)(21), were based on his prior criminal convictions—and that, therefore, these two aggravators apparently fell within the Blakely exception for prior convictions. However, Lockuk argued that recent federal cases cast doubt on the continuing validity of Blakely's prior-conviction exception. And Lockuk further argued that, no matter what federal law might say on this issue, there was no prior-conviction exception under Alaska law.

The State opposed Lockuk's motion. The State took the position that Blakely's exception for prior convictions was still good law, that the proof of aggravators (c)(8) and (c)(21) in Lockuk's case rested solely on Lockuk's prior criminal convictions, and that therefore these two aggravators were Blakely-compliant.

After considering these competing arguments, Judge Torrisi denied Lockuk's motion. Lockuk now asks us to reverse that decision.

Lockuk first argues that all aggravating factors that can potentially increase a defendant's sentence must be deemed "elements" of the defendant's crime—and that, therefore, a defendant has both a federal constitutional right and an Alaska constitutional right to grand jury indictment on these aggravating factors. We recently rejected this contention (under both federal and state constitutional law) in State v. Dague, 143 P.3d 988, 1007, 1010 (Alaska App.2006).

Lockuk next addresses the Blakely exception for prior convictions. As explained above, Lockuk has seven prior convictions for misdemeanor assault, as well as another conviction for resisting arrest. These convictions ostensibly comprise a Blakely-compliant basis for finding aggravator (c)(8) (history of assaultive conduct) and aggravator (c)(21) (history of similar offenses). But Lockuk argues that his prior convictions for assault and resisting arrest can not properly be used to prove these two aggravators.

Lockuk first contends that, even under the United States Supreme Court's own decisions on this subject, "[t]he prior conviction exception [first recognized in Almendárez-Torres v. United States3] is as near to a dead letter as any [doctrine] that has not been specifically overruled". Lockuk argues that subsequent decisions of the Supreme Court have essentially "limited Almendárez-Torres to its facts".

We do not agree. First, the prior conviction exception continues to make sense, even in light of Blakely. We explained the rationale of the prior conviction exception in Edmonds v. State, 118 P.3d 17, 20 (Alaska App. 2005):

For [a] defendant to be convicted of [a] crime ..., one of three things had to happen: either (1) the defendant exercised their right to trial by jury, and the jury found the defendant guilty; or (2) the defendant was offered a jury trial but waived it, choosing instead to be tried by a judge, and the judge found the defendant guilty; or (3) the defendant was offered a jury trial but waived trial altogether, choosing instead to enter a plea of guilty or no contest. Regardless of how the defendant was found guilty, the defendant's right to jury trial and the defendant's right to proof beyond a reasonable doubt were both honored—and thus Blakely is satisfied.

Second, as we recently noted in Tyler v. State, 133 P.3d 686 (Alaska App.2006), even though lawyers and judges might reasonably dispute the continuing vitality of the prior conviction exception, "the United States Supreme Court has cautioned lower courts that they should not deviate from Supreme Court precedent, even when the Supreme Court's later decisions seemingly invalidate that precedent or call it into question". Id. at 689-690. Thus, even though there may be reason to doubt whether the prior conviction exception still commands five votes among the members of the Supreme Court, "[t]his exception continues to be the law of the land unless and until the United States Supreme Court expressly abandons or modifies it." Id. at 690.

We have explicitly held that, consistent with Blakely, a judge imposing a sentence under Alaska's pre-2005 presumptive sentencing laws could properly rely on a defendant's prior convictions as a basis for finding aggravators (c)(8)4 and (c)(21)5"at least when the defendant did not dispute the fact of those convictions, and when the State relied simply on the convictions themselves and the legal elements of those crimes, rather than attempting to introduce evidence of the particular facts underlying the prior convictions".6

Lockuk has never contested (either at his sentencing hearing, or in his Criminal Rule 35(a) motion in the superior court, or in his appellate briefs to this Court) that he has seven prior convictions for assault and one prior conviction for resisting arrest. Therefore, under this Court's prior decisions on this topic, Judge Torrisi committed no Blakely error when he relied on these prior convictions as the basis for finding aggravating factors (c)(8) and (c)(21).

Lockuk argues in the alternative that, even if an exception remains under Blakely for a defendant's prior convictions, that exception is limited to situations where the defendant personally and expressly concedes the existence of the prior convictions. Thus, even though neither Lockuk nor either of his lawyers has ever disputed the existence of Lockuk's prior convictions, Lockuk nevertheless contends that Judge Torrisi committed error under Blakely when he neglected to address Lockuk personally and obtain Lockuk's express concession of those prior convictions.

To prevail on this point, Lockuk must show that Judge Torrisi's reliance on the undisputed prior convictions constituted plain error. Lockuk's argument rests on a particularly narrow reading of Almendárez-Torres —a reading that conflicts with this Court's own previous applications of the prior conviction...

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    ... 431 P.3d 631 The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Christopher Anthony MOUNTJOY, Jr., Defendant–Appellant. Court of Appeals No. 13CA1215 Colorado Court of ... See, e.g. , Campos v. State , 217 So. 3d 1, 8–9, No. CR–13–1782, 2015 WL 9264157, at *6 (Ala. Crim. App. Dec. 18, 2015) ; Lockuk v. State , 153 P.3d 1012, 1017 (Alaska Ct. App. 2007) ; State v. Hampton , 213 Ariz. 167, 140 P.3d 950, 966 (2006) ; Galindez v. State , 955 ......

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