Brown v. State

          Appeal from the Superior Court, Third Judicial District No. 3PA-13-378 CR, Palmer, Vanessa H. White, Judge.

          Ariel J. Toft, Assistant Public Defender, Palmer, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Ann B. 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.

          OPINION

          MANNHEIMER JUDGE.

         A 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 conviction".

         The 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).

         If the 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.

         The 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.

         At 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?

         In 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. 2002).

         In 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 levels.^[1]

         About a third of the states have DUI sentencing schemes that mirror Montana's approach.^[2] 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.^[3]

         To sum 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.^[4]) But Montana and the other states listed in footnote 2 do not consider a defendant's prior convictions to be ...