Ty S. DOUGLAS, Appellant,
STATE of Alaska, Appellee.
[Copyrighted Material Omitted]
Paul E. Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Ty S. Douglas was convicted of two counts of first-degree sexual assault and two counts of fourth-degree assault for separate attacks that he committed upon his girlfriend, K.I., on June 26 and 27, 2002. A detailed description of these crimes is contained in Douglas v. State, 151 P.3d 495, 497-98 (Alaska App.2006), the opinion in which we affirmed Douglas's convictions on appeal.
Although we affirmed Douglas's convictions in our earlier decision, we remanded Douglas's case to the superior court for further sentencing proceedings because, at sentencing, the superior court violated Douglas's Sixth Amendment rights as construed in Blakely v. Washington  by relying on aggravating factors that were not tried to a jury. Douglas, 151 P.3d at 506-07.
(The decision in Blakely governs Douglas's case because Douglas's direct appeal of his convictions was pending when Blakely was decided.)
When Douglas's case returned to the superior court, the court held a jury trial on the State's proposed aggravating factors. With regard to the assault that was committed on June 26, 2002, the jury found no aggravators. However, with regard to the assault that was committed on June 27, 2002, the jury found three aggravators under AS 12.55.155:(c)(1)-that Douglas inflicted physical injury on K.I. during the sexual assault; (c)(2)-that Douglas acted with deliberate cruelty toward K.I. during the assault; and (c)(5)-that Douglas knew or should have known that K.I. was a particularly vulnerable victim.
Because no aggravating factors applied to the June 26th sexual assault, the superior court sentenced Douglas to the unadjusted presumptive term of 8 years' imprisonment. (The court also imposed a consecutive term of 1 year's imprisonment for the fourth-degree assault committed on June 26th.)
With regard to the June 27th sexual assault, based on the aggravating factors found by the jury, the superior court exceeded the 8-year presumptive term and sentenced Douglas to 30 years' imprisonment with 15 years suspended. For reasons that we explain in this opinion, the superior court declined to sentence Douglas for the fourth-degree assault committed on June 27th.
The superior court imposed the sentence for the June 27th sexual assault consecutively to the sentences for Douglas's June 26th crimes. Thus, Douglas's composite sentence
was 24 years to serve and another 15 years suspended.
Douglas now appeals. In this appeal, Douglas contends that the superior court lacked the legal authority to hold a jury trial on the State's proposed aggravating factors. Douglas also contends that the jury was misinstructed concerning the scope of its decision-making authority, and that the evidence fails to support the jury's verdict on aggravator (c)(5) ( i.e., that K.I. was a particularly vulnerable victim). In addition, Douglas argues that when the superior court re-sentenced him (based on the jury's verdicts), the court violated the rule announced in Juneby v. State -the rule that a sentencing judge should not rely on an aggravating factor when that factor is premised on conduct for which the defendant has been separately convicted and sentenced. Finally, Douglas argues that his composite sentence is excessive.
For the reasons explained here, we reject Douglas's contentions, and we therefore affirm the judgement of the superior court.
Douglas's argument that the superior court had no legal authority to hold a jury trial to decide the State's proposed aggravating factors
Alaska's original presumptive sentencing statutes (which were enacted in 1978, and which took effect on January 1, 1980), did not comport with the United States Supreme Court's later decision in Blakely v. Washington. These statutes called for aggravating factors to be tried to the sentencing judge rather than to a jury, and the statutes specified that the burden of proof applicable to aggravating factors was " clear and convincing evidence" rather than proof beyond a reasonable doubt.
Both of these aspects of the presumptive sentencing laws violated the holding in Blakely -the holding that, under the Sixth Amendment to the United States Constitution, criminal defendants have a right to demand a jury trial, and to demand proof beyond a reasonable doubt, on any factual issue that, if resolved against them, will increase the maximum punishment for their crime.
In March 2005, the Alaska Legislature amended the presumptive sentencing statutes for the purpose of bringing them into conformity with Blakely.  Under the revised presumptive sentencing law, many aggravating factors must now be tried to a jury. But Douglas's case is governed by the pre-March 2005 version of the law, which had no provision for jury trials of aggravating factors.
Douglas argues that, because his case is governed by the pre-March 2005 version of the law, and because that version of the law contained no provision for jury trials of aggravating factors, the superior court had no authority to convene a jury trial to decide the aggravating factors in his case-and it was improper for this Court to remand Douglas's case to the superior court for this purpose. Douglas contends that, under the circumstances of his case, the superior court was obliged to ignore the State's proposed aggravating factors, and to sentence Douglas to the unadjusted 8-year presumptive term on each of the two first-degree sexual assault convictions.
To support these contentions, Douglas relies on the state law of Washington. The Washington Supreme Court has held that, because Washington's pre- Blakely sentencing laws made no provision for jury trials of aggravating factors, the Washington courts have no authority to cure Blakely errors by convening juries to reconsider the aggravating factors that were earlier decided (improperly) by sentencing judges.
But in State v. Moreno, 151 P.3d 480 (Alaska App.2006), this Court considered this same issue, and we reached a different conclusion.
In Moreno, we acknowledged that Alaska's pre-March 2005 presumptive sentencing laws violated Blakely because they did not provide for jury trials of aggravating factors, and because they specified that aggravating factors could be established by clear and convincing evidence (rather than requiring proof beyond a reasonable doubt). The problem presented in Moreno was that, based on the fact that the presumptive sentencing statutes violated Blakely, the superior court concluded that the presumptive sentencing laws as a whole were unconstitutional.
The superior court concluded that the statutory procedures for adjudicating aggravating factors (procedures that were invalid under Blakely ) " were so crucial to the overall functioning of presumptive sentencing that they could not be severed or amended by judicial decision" , and thus the entire presumptive sentencing structure had to be struck down. Moreno, 151 P.3d at 481. We disagreed, and we held that the constitutionally flawed procedures specified in the pre-March 2005 statutes could be replaced by jury trial procedures conforming to the requirements of Blakely. Id.
Moreno, like Douglas, argued that it was beyond the proper scope of judicial authority for a court to amend the statutory procedures for litigating aggravating factors. Id. at 482. But based on the Alaska Supreme Court's decision in R.L.R. v. State,  we concluded that it was within our judicial authority " to alter [the] litigation procedures [pertaining to aggravating factors] to ensure that they conform to constitutional guarantees [, and] to order that defendants receive a jury trial on proposed aggravating factors that are not Blakely -compliant." Moreno, 151 P.3d at 482. Accordingly, we upheld the pre-2005 version of the presumptive sentencing law-" with the proviso that defendants must receive a jury trial on aggravating factors if mandated by Blakely. " Id. at 483.
Based on our holding in Moreno, and for the reasons articulated in that decision, we reject Douglas's argument that the superior court had no authority to convene a jury to decide the aggravating factors in Douglas's case. It was both proper and necessary for the superior court to hold a jury trial on those aggravating factors.
Douglas's argument that the superior court committed error by giving an instruction to the jury which (according to Douglas) told the jurors that they had no authority to re-evaluate whether Douglas was guilty of the underlying sexual assaults
During an early stage of the proceedings on remand ( i.e., when the parties began their renewed litigation of the aggravating factors), Douglas contended that he should be allowed to argue to the sentencing jury that he was not guilty of the two underlying sexual assaults, even though the first jury had found him guilty of these offenses.
(Douglas did not contend that the second jury should be allowed to re-evaluate his guilt of the sexual assaults in the sense of re-evaluating whether he should be convicted of those offenses. Rather, Douglas argued that the second jury should be allowed to reject the State's proposed aggravating factors if the jurors believed that Douglas was not guilty of the underlying sexual assaults.)
Superior Court Judge Larry R. Weeks, the judge who presided over the renewed sentencing proceedings, agreed with Douglas: the judge ruled that, despite Douglas's conviction of the sexual assaults (and this Court's affirmance of those convictions on appeal), Douglas ...