JEFFREY L. BROWN, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, Third Judicial District No.
3PA-13-378 CR, Palmer, Vanessa H. White, Judge.
J. Toft, Assistant Public Defender, Palmer, and Quinlan
Steiner, Public Defender, Anchorage, for the Appellant.
Black, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards and Jahna
Lindemuth, Attorneys General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge.
person's criminal conviction in another state counts as a
"prior felony conviction" for purposes of
Alaska's presumptive sentencing laws if the elements of
the out-of-state offense are similar to the elements of a
felony defined by Alaska law (as determined at the time the
prior offense was committed). See AS
12.55.145(a)(1)(B). The question presented in this appeal is
whether the Montana offense of felony driving under the
influence is sufficiently similar to the Alaska version of
felony DUI to qualify as a "prior felony
defendant in this case, Jeffrey L. Brown, pleaded guilty to a
felony (third-degree weapons misconduct). Brown had one prior
conviction - a felony DUI conviction from Montana. At
Brown's sentencing, the parties disagreed as to whether
this Montana conviction should be counted as a "prior
felony conviction" under AS 12.55.145(a)(1)(B).
Montana DUI conviction met the statutory test for a
"prior felony conviction", then the superior court
was required to sentence Brown as a second felony offender
for purposes of Alaska's presumptive sentencing laws. But
if the Montana conviction did not meet the statutory test,
then Brown was only a first felony offender, and he faced a
lower presumptive sentencing range.
superior court ultimately ruled that Brown's Montana DUI
conviction met the statutory test for a "prior felony
conviction", and the court therefore sentenced Brown as
a second felony offender. Brown now appeals this ruling.
first glance, the question confronting this Court is whether
the elements of felony DUI under Montana law were
sufficiently similar to the elements of felony DUI under
Alaska law in 2001, when Brown committed his Montana offense.
But in Brown's case, the answer to this question
ultimately hinges on the answer to a more specific question:
When AS 12.55.145(a)(1)(B) speaks of the "elements"
of an out-of-state offense, does the statute use the term
"elements" in the strict sense of "facts that
must be proved to the finder of fact beyond a reasonable
doubt", or does the statute use the term
"elements" in a more expansive sense?
Alaska, when a defendant is prosecuted for felony DUI, the
defendant's prior DUI convictions are elements of the
offense in the strict sense: the convictions must be proved
to the trier of fact beyond a reasonable doubt. See Ross
v. State, 950 P.2d 587, 590 (Alaska App. 1997);
Ostlund v. State, 51 P.3d 938, 941 (Alaska App.
Montana, on the other hand, a defendant's prior
convictions are not elements of felony DUI in this strict
sense. Instead, at the defendant's trial, the finder of
fact decides only whether the defendant committed DUI on the
occasion in question. A defendant has no right to jury trial
regarding their prior convictions. See State v.
Weldele, 69 P.3d 1162, 1171-72 (Mont. 2003). If the
defendant is found guilty at trial, and if the sentencing
court finds that the defendant has certain types of prior
convictions, those prior convictions authorize the court to
enhance the defendant's sentence to felony
third of the states have DUI sentencing schemes that mirror
Montana's approach. This legal framework is constitutional
because the right to jury trial announced in Apprendi v.
New Jersey and Blakely v. Washington does not
apply when the factor that elevates a defendant's crime
or sentence is a prior criminal conviction.
up our discussion thus far: Under the law of Montana and
these other states, the things that must be proved to justify
a felony-level sentence for DUI - i.e., the
commission of a current DUI, plus qualifying prior
convictions - are basically the same things that must be
proved to justify a felony-level DUI conviction in Alaska.
(In fact, Montana law is arguably stricter: Montana generally
does not impose a felony-level sentence for DUI until a
defendant has three prior convictions-not the two
prior convictions required under Alaska law.) But Montana and
the other states listed in footnote 2 do not consider a
defendant's prior convictions to be ...