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State v. Smart

Supreme Court of Alaska

February 27, 2009

STATE of Alaska, Petitioner,
Troy SMART, Respondent. State of Alaska, Petitioner,
Henry Douglas, Respondent.

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[Copyrighted Material Omitted]

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Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Petitioner.

Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondents.

Joshua P. Fink, Public Advocate, Anchorage, for Amicus Curiae Office of Public Advocacy.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.


EASTAUGH, Justice.


The question presented in these two cases is whether the right to a jury trial announced in Blakely v. Washington [1] should be retroactively applied to two state defendants, Troy Smart and Henry Douglas, whose sentences were final Before June 24, 2004, when Blakely was decided. Blakely requires that any fact-except a fact admitted by the defendant or the fact of a prior conviction-necessary to increase a sentence above the statutory presumptive maximum be proved to a jury beyond a reasonable doubt. We decline to give Blakely full retroactivity. We conclude that the purpose of Blakely does not raise serious questions about the accuracy of past sentences and must be weighed against the state's reliance on the old rule for over twenty years and the administrative burden of

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implementing the new rule retroactively. We therefore reverse the rulings of the court of appeals in these two cases and remand.


A jury convicted Troy Smart of second-degree assault. Because Smart was a second felony offender he faced a presumptive sentence of four years with a maximum sentence of ten years.[2] The sentencing judge found an aggravating factor and in May 2002 sentenced Smart to serve ten years, with six of those years suspended.[3] The court of appeals affirmed Smart's sentence in January 2003.[4] Smart did not seek further review of his sentence at that time.

Henry Douglas pleaded no contest to first-degree robbery. As a second felony offender Douglas faced a presumptive sentence of ten years and a maximum sentence of twenty years.[5] In August 1999 the sentencing judge found multiple aggravating factors and sentenced Douglas to serve eighteen years, with eight of those years suspended.[6] Douglas appealed but his appeal was dismissed in April 2000.[7]

In June 2000 the United States Supreme Court held in Apprendi v. New Jersey that defendants have a constitutional right to have a jury decide any disputed fact-other than the fact of a prior conviction-that increases a sentence beyond the statutory maximum, and to have each such fact proved beyond a reasonable doubt.[8] In June 2004 the Supreme Court in Blakely v. Washington for the first time applied Apprendi to a sentence imposed under a presumptive sentencing scheme.[9] It held in Blakely that a defendant's sentence was invalid because the aggravating facts, which supported an increase above the sentence that was authorized by the jury's verdict alone, were neither admitted by the defendant nor found by a jury.[10]

After Blakely was issued, Douglas filed an Alaska Criminal Rule 35(a) motion claiming that his sentence was illegal under Blakely. Superior Court Judge Ben J. Esch denied Douglas's motion, holding that " Blakely is not retroactive and does not apply to this case because it is not on ... direct appeal."

Likewise, Smart filed an Alaska Criminal Rule 35(a) motion in 2004, claiming that his sentence was illegal under Blakely. Superior Court Judge Larry R. Weeks concluded that Smart's request could only be presented as an Alaska Criminal Rule 35.1 petition for post-conviction relief. Treating the motion as a Rule 35.1 petition, Judge Weeks denied Smart's motion, holding that Blakely did not apply retroactively to cases that have been decided on appeal.

Smart and Douglas both appealed. The court of appeals decided Smart's appeal first. It first held that the state retroactivity test

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announced in Judd v. State [11]-not the federal retroactivity test announced in Teague v. Lane [12]-applied.[13] It then held that Blakely should be fully retroactive in Alaska.[14] It therefore vacated Smart's sentence and remanded for further proceedings on the disputed aggravating factor.[15] In resolving Douglas's appeal, the court of appeals relied on its decision in Smart and remanded for further proceedings on Douglas's contested aggravators.[16]

The state filed petitions for hearing challenging both decisions. We granted the petitions, ordered full briefing, and consolidated the cases for decision.


A. Standard of Review

These cases require interpretation of the United States and Alaska Constitutions and federal and state case law concerning the retroactivity of appellate decisions. We use our independent judgment in reviewing rulings turning on federal and state constitutional law.[17]

B. Apprendi and Blakely

Because this case turns on whether Blakely applies retroactively to cases on collateral review,[18] we begin with an overview of Blakely and its predecessor, Apprendi.


Apprendi fired bullets into the home of an African-American family.[19] He entered a plea agreement and pleaded guilty to three of the twenty-three counts charged.[20] Under Apprendi's plea agreement, the sentences for two counts would run consecutively and the sentence for the third count would run concurrently with the other two.[21] Apprendi faced a maximum aggregate sentence of twenty years on the two counts (ten-year maximum for each count) if the judge found no basis for a hate-crime enhancement.[22] But if the hate-crime enhancement applied to one count, a New Jersey statute authorized a twenty-year maximum sentence on that count alone.[23] Applying a preponderance of the evidence standard, the sentencing judge found that the hate-crime enhancement applied to one count.[24] He sentenced Apprendi to a twelve-year term on that count and to shorter concurrent sentences on the other two counts.[25]

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The question Before the Supreme Court was whether a jury had to find on the basis of proof beyond a reasonable doubt that there had been a hate crime.[26] This question would determine whether the twelve-year sentence on the single count was " permissible" given the ten-year maximum for that offense.[27] The Court held that: " 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." [28] The Court reversed the judgment of the New Jersey Supreme Court, which had upheld Apprendi's sentence.[29]


In Blakely the Supreme Court applied Apprendi to a presumptive sentencing system for the first time. Blakely pleaded guilty in Washington State to kidnaping his estranged wife.[30] Per state statute, the " standard range" for Blakely's conviction was forty-nine to fifty-three months.[31] The statute allowed a sentence above the standard range if the judge found " substantial and compelling reasons justifying an exceptional sentence." [32] The judge imposed an exceptional sentence of ninety months (thirty-seven months above the maximum of the standard range) because he found that Blakely acted with " deliberate cruelty" -a statutory aggravating factor.[33] Reviewing Blakely's sentence, the Supreme Court concluded that " the ‘ 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. " [34] " In other words," the Court held, " the relevant ‘ 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." [35] The Court held that because Blakely's sentence exceeded the presumptive sentence, absent a jury finding of the enhancing factor under the reasonable doubt standard, the sentence violated the Sixth Amendment right to a jury trial.[36] The Court made it clear that prior convictions and facts admitted by the defendant do not fall within the requirements of Apprendi and Blakely. [37]

The question facing state courts after Apprendi and Blakely was whether the Supreme Court's interpretation of the Federal Constitution in those cases should be given full retroactivity by a state reviewing its own criminal convictions. One part of that question was whether the issue of retroactivity should be decided by applying an individual state's retroactivity standard or the federal retroactivity standard ...

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