Krista Maciolek, Assistant Public Advocate, Palmer, and Rachel Levitt, Public Advocate, Anchorage, for the Petitioner.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Respondent.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
The defendant in this case, Dwayne Eugene West, was found guilty of first-degree robbery following a jury trial, but he has not yet been sentenced. First-degree robbery is a class A felony, and West is a first felony offender for purposes of Alaska's presumptive sentencing law. Under the applicable sentencing statute, AS 12.55.125(c), West's presumptive sentencing range hinges on whether he personally possessed or used a firearm during the commission of the offense. West faces a sentencing range of 5 to 8 years if he did not carry a firearm, but a sentencing range of 7 to 11 years if he carried a firearm.
In a pre-sentencing pleading, West asserted that he had a Sixth Amendment right to jury trial with respect to this issue of fact. The superior court agreed that, under Blakely v. Washington,  West was entitled to a jury trial on the question of whether he personally carried a firearm during the robbery-because, if this issue were decided in the government's favor, West would face a higher presumptive sentencing range.
But when the superior court offered West a jury trial on this issue, West responded that any renewal of the proceedings would violate the double jeopardy clause. West asserted that the superior court was obliged to sentence him within the lower presumptive range, as if the government had attempted but had failed to prove that he personally carried a firearm. When the superior court rejected West's double jeopardy argument and, instead, ordered a jury trial on the disputed sentencing factor, West petitioned this Court to review the superior court's ruling, and we granted review.
We now hold that, in this situation, it does not violate the double jeopardy clause to hold a jury trial on the disputed factual issue.
A more detailed explanation of the facts of this case
West and four co-defendants were brought to trial on six counts of first-degree robbery (one count for each of six victims) and seven counts of third-degree assault (again, one count for each of seven victims). West was convicted of these crimes, but (as we have explained) West raised a Blakely issue and a double jeopardy issue while he was awaiting sentencing-and, thus, he has not yet been sentenced.
For the offense of first-degree robbery, West faces a presumptive sentencing range of 7 to 11 years' imprisonment if he personally carried a firearm during the robberies. See AS 12.55.125(c)(2)(A). In contrast, West faces a lesser presumptive range-5 to 8 years' imprisonment-if he did not personally carry a firearm during the robberies. See AS 12.55.125(c)(1).
(See Dailey v. State, 675 P.2d 657, 661-62 (Alaska App.1984), where this Court held that, even though a defendant can be convicted of armed robbery based on an accomplice's use or possession of a firearm, the enhanced presumptive term provided in subsection (c)(2)(A) applies to the defendant's sentencing only if the defendant personally used or possessed the firearm.)
The problem in West's case arises from the fact that West's trial jury was not asked to decide whether West personally carried a firearm. The jury's verdicts simply state that the jurors found West guilty of first-degree robbery.
The jury was instructed, in pertinent part, that one element of first-degree robbery was that " in the course of [the] taking or attempted taking [of property], or [in the] immediate flight after the taking [or] attempted taking, the defendant or another participant was armed with a deadly weapon" . Thus, the jury's verdicts represent a finding that, among West and his cohorts, at least one of them carried a firearm, but the verdicts do not identify which of the robbers were armed.
In her pre-sentencing memorandum, West's attorney took the position that West had to be sentenced using the lower presumptive range ( i.e., 5 to 8 years). The defense attorney argued that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), West was entitled to have a jury decide the factual issue of whether West personally carried a firearm during the robberies. The defense attorney further argued that, because the jury had not been asked to decide this issue of fact, the superior court was required to sentence West as if the jury had decided this issue in West's favor.
The State responded by arguing that West was subject to the higher sentencing range ( i.e., 7 to 11 years) because Blakely was satisfied, even without a specific jury verdict on this factual issue. The State pointed out that the evidence at trial clearly showed that West had carried a firearm, and that West's attorney (in arguing the case to the jury) had essentially conceded this fact.
The trial judge, Superior Court Patrick J. McKay, agreed with the defense position that, under Blakely, West was entitled to
have a jury decide this issue of fact. At the same time, Judge McKay agreed with the State's assertion that West's attorney had essentially conceded this factual issue during the trial, and that, in any event, the evidence presented at the trial established beyond a reasonable doubt that West had carried a firearm. Nevertheless, Judge McKay concluded that if West now wanted a jury decision ...