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Malutin v. State

Court of Appeals of Alaska

January 9, 2009

James R. MALUTIN, Appellant,
STATE of Alaska, Appellee.

Page 1178

Glenda Kerry, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, and Rachel Levitt, Acting Public Advocate, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

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



In 1996, James R. Malutin was charged with first-degree burglary and first-degree sexual abuse of a minor. These charges were resolved when Malutin agreed to plead no contest to a single charge of attempted first-degree sexual abuse of a minor. Malutin further agreed that he would receive a sentence of 12 years' imprisonment with 7 years suspended- i.e., 5 years to serve-for this crime.

Before the superior court could lawfully impose this negotiated sentence, the State had to establish one or more of the aggravating factors listed in AS 12.55.155(c). This was because attempted first-degree sexual abuse of a minor is a class A felony,[1] and, under Alaska's pre-2005 presumptive sentencing law, Malutin faced a 5-year presumptive term for this offense.[2] In the absence of aggravating factors, the superior court had no authority to exceed this prescribed 5-year presumptive term-even if all of the additional jail time was suspended.[3]

Thus, to enable the superior court to impose the agreed-upon sentence of 12 years

Page 1179

with 7 years suspended, Malutin stipulated to two aggravating factors under AS 12.55.155(c): (c)(5)-that Malutin knew the victim of his offense was particularly vulnerable or incapable of resistance because of her extreme youth; and (c)(19)-that Malutin's prior criminal history included a delinquency adjudication for conduct that would have been a felony if committed by an adult.

Malutin received the agreed-upon sentence, and he served his initial time in prison. He was then released to probation, which he violated several times. While his most recent probation revocation proceedings were pending, Malutin raised a constitutional challenge to his plea agreement. The superior court rejected Malutin's challenge-giving rise to the present appeal.

The litigation in the superior court

Malutin's challenge to his plea agreement was based on the Sixth Amendment right to jury trial recognized by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Under Blakely, Malutin (and all other defendants subject to presumptive sentencing under Alaska's pre-2005 law) had the right to demand a jury trial on any aggravating factors alleged by the State (other than those premised on prior criminal convictions), and the concomitant right to demand that the State prove these aggravators beyond a reasonable doubt.[4] Malutin asserted that his plea agreement with the State was invalid because (as explained above) the lawfulness of Malutin's agreed-upon sentence hinged on the State's proof of the aggravators, and because (according to Malutin) he was unlawfully denied his right to jury trial on those aggravators.

Malutin acknowledged that he had stipulated to the two aggravating factors, but he argued that he should not be held to this stipulation. Malutin asserted that, because of Blakely, aggravating factors must be deemed necessary elements of a defendant's underlying crime. And, according to Malutin, because the two aggravators were really elements of his offense, the superior court could not lawfully accept a stipulation concerning these aggravators from Malutin's attorney without also personally addressing Malutin and obtaining his personal waiver of his right to jury trial on these aggravators.

In addition, Malutin asserted that there was no factual basis for aggravator (c)(19) (prior delinquency adjudication for felony conduct). Malutin noted that he was adjudicated a delinquent minor for the offense of fourth-degree sexual abuse of a minor-which is not a felony, but rather a class A misdemeanor. See AS 11.41.440(b).

In opposition to Malutin's claim, the State argued that Malutin should not be allowed to withdraw his stipulation to the aggravating factors because that stipulation was a necessary ingredient of the plea bargain and the negotiated sentence.

With regard to Malutin's claim that there was no factual basis for aggravator (c)(19), the State conceded that Malutin's delinquency adjudication was for fourth-degree sexual abuse of a minor, and that this offense is a misdemeanor. However (as we explain in more detail below), the State argued that reasonable people could differ as to whether this delinquency adjudication could still serve as the basis for aggravator (c)(19). And the State pointed to this Court's decision in Connolly v. State, 758 P.2d 633, 638 (Alaska App.1988), where we recognized that a sentencing judge has the authority to accept the parties' stipulation regarding an aggravating or mitigating factor if the existence of the factor is in reasonable dispute and the parties' stipulation represents their compromise ( i.e., agreed-upon resolution) of this dispute.

Superior Court Judge Eric A. Aarseth denied Malutin's motion, concluding that the right to jury trial recognized in Blakely was not retroactive- i.e., that the right did not apply to any defendant whose conviction was entered Before Blakely was decided.

About two months later, this Court issued our decision in Smart v. State, 146 P.3d 15 (Alaska App.2006). In Smart, we held that, under Alaska law, the Blakely right to jury trial is retroactive. 146 P.3d at 40.

Page 1180

Following our decision in Smart, Malutin filed a new motion challenging his sentence. This time, Malutin asked the superior court to rescind his plea agreement under Alaska Criminal Rule 35(a), the rule that authorizes the superior court to correct an illegal sentence. Malutin argued that his negotiated sentence was illegal under Blakely. Malutin's underlying arguments were essentially the same: (1) that he had a right to jury trial with regard to aggravator (c)(5), (2) that the superior court could not accept his attorney's stipulation to this aggravator without also obtaining Malutin's personal waiver of the right to jury trial, and (3) that, in any case, there was no factual or legal basis for aggravator (c)(19).

(As Malutin correctly noted in his motion, when a defendant believes that a negotiated sentence is unlawful under Blakely, the defendant must seek rescission of the entire plea agreement under Criminal Rule 11(h)-and not just deletion of the portion of the sentence that purportedly violates Blakely. See Woodbury v. State, 151 P.3d 528, 532 (Alaska App.2007).)

Malutin's motion was assigned to Superior Court Judge Craig Stowers. In a written decision, Judge Stowers denied the motion for two pertinent reasons. First, Judge Stowers concluded that Blakely was not retroactive, and thus Malutin could not claim the benefit of Blakely. Judge Stowers understood that his ruling was at odds with this Court's decision in Smart, but he concluded that he was not bound by Smart.

To support the conclusion that he was not bound by our decision in Smart, Judge Stowers relied on the wording of Alaska Appellate Rule 507(b), which declares that a decision issued by an appellate court-either this Court or the Alaska Supreme Court-normally " takes effect ... on the day specified in [Appellate] Rule 512(a) for return of the record [to the trial court]."

As Judge Stowers noted, if a party petitions the supreme court to hear a case decided by this Court, the record is not returned to the trial court until the supreme court resolves the petition for hearing. See Appellate Rule 512(a)(2). Reading Appellate Rule 507(b) and Appellate Rule 512(a)(2) in conjunction, and knowing that the State's petition for hearing in Smart remained unresolved,[5] Judge Stowers concluded that this Court's decision in Smart had not yet taken effect-and thus the Smart decision did not bind him (or any other superior court judge).

Judge Stowers alternatively ruled that, even if he was bound by this Court's ruling that Blakely is retroactive in Alaska, Malutin would still not be entitled to relief because Malutin stipulated to the two contested aggravating factors as part of a negotiated plea. The judge noted that Blakely itself holds that a defendant can concede aggravating factors and give up the right to jury trial. The judge also noted that, in Woodbury v. State, this Court held that it is not plain error for a sentencing judge to accept a defense attorney's concession of one or more aggravating factors without separately addressing the defendant personally and obtaining the defendant's explicit waiver of the right to jury trial. See Woodbury, 151 P.3d at 531.

Does this Court's decision in Smart v. State control this litigation?

In Smart, this Court held that the Sixth Amendment right of jury trial recognized in Blakely applies to Alaska defendants whose convictions pre-date Blakely. However, as explained above, the superior court ruled that our decision in Smart is not binding on any trial court. The superior court noted that the State has petitioned the Alaska Supreme Court to review our decision, and the supreme court has not yet resolved the State's petition. Because of these circumstances, and because Appellate Rule 507(b) and Appellate Rule 512(a) (taken in conjunction) declare that the decision of an appellate court normally " takes effect" only when all further avenues of review and reconsideration have been exhausted or waived, the superior court ruled that the decision in Smart had not yet taken effect.

Page 1181

On appeal, Malutin argues that the superior court was wrong, and that our decision in Smart controls this litigation. The State, for its part, does not offer a defense of the superior court's ruling on this issue. Rather, the State argues that the issue of Blakely 's retroactivity is moot-because (according to the State) Malutin is not entitled to relief even if Blakely applies to his case.

As we explain in the next section of this opinion, we agree with the State that even if our decision in Smart controls this litigation, Malutin is not entitled to relief. For this reason, we need not decide whether the superior court correctly construed Appellate Rule 507(b). However, because this issue is a significant one, we believe that we should include a short explanation of the history of Appellate Rule 507(b)-not to announce any opinion on the question of whether the superior court's ruling was correct, but rather to inform any later litigation of this point.

Appellate Rule 507 was first enacted in 1980, as part of a comprehensive revision and restructuring of Alaska's rules of appellate procedure.[6] As first enacted, paragraph (a) of Rule 507 directed the appellate clerk to issue a " mandate" at the conclusion of the appellate proceedings. As defined in this former version of Rule 507(a), the " mandate" was a court order-separate from the opinion issued by the appellate court-that " inform[ed] the trial court of the proceedings in the appellate courts" and that formally returned " full jurisdiction over the case ... to the trial court" (unless the mandate specified otherwise).

Paragraph (b) of Rule 507 contained a set of rules for determining when the clerk should issue the mandate. These rules are the same ones now found in Appellate Rule 512(a) for determining when the record should be returned to the trial court. In other words, the clerk issued the mandate when all further avenues of review and reconsideration had been exhausted or waived.

This practice of issuing a " mandate" at the end of the appellate proceedings was a continuation of the practice codified in Alaska's predecessor rule, Supreme Court Rule 28.[7] Indeed, even today, this practice is followed by the federal courts ( see Federal Appellate Rule 41) and many state courts.[8] As explained in Wright, Miller, and Cooper's Federal Practice and Procedure: Jurisdiction and Related Matters (3rd ed.1999), the mandate is the appellate court's order to the lower court, directing the lower court to take whatever further action is necessary and/or appropriate in light of the appellate court's decision. The " spreading" of the mandate is the act that formally returns jurisdiction over the case to the lower court.[9]

Page 1182

In other words, the appellate court's opinion was its statement of the law, while the appellate court's mandate was its order returning jurisdiction over the case to the lower court, and directing the lower court to perform whatever actions were necessary or ...

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