The Court of Appeals published 2 opinions yesterday. The first is Mooney v. State, which raised several issues. The most important issue raised in Mooney is when, in Alaska, a Batson challenge ceases to be timely. Batson v. Kentucky is a US Supreme Court case holding that prosecutors cannot use their peremptory challenges based solely on racial grounds. This holding has since been expanded to prohibit other peremptory challenges that violate public policy.
Mooney was charged with sex assault in the first degree. He claimed that the prosecution unlawfully bumped Alaska Natives off the jury panel. The problem is that he objected after the jury was sworn. Batson itself did not specify when a claim would be untimely, leaving that up to the states to determine. While Alaska has never had to decide this before, a number of states have held that challenges should be made before the jury is sworn. Alaska adopts that rule.
Mooney raised some other issues, including whether a prior sex assault should have been admitted. Given the similarities between the act for which Mooney was previously convicted and the facts of this case, the court held that the trial court did not abuse its discretion under 404(b)(3) in admitting the evidence. The trial court also prohibited specific act evidence of the complaining witness. While Mooney was allowed to introduce evidence that she was known as a thief, he could not introduce specific act evidence. This is black letter ARE 608 law, so it should not be a surprise.
Mooney issues include whether he should have received a jury instruction that the assault must have been a "voluntary act". He did not request one and the Court rules that the failure to give one was not plain error. Same decision about failure to instruct on lesser included offense of assault. Finally, Mooney challenged his sentence and Court ruled that the trial judge did not abuse his discretion in sentencing. Thus, no error. Aside from the Batson issue, this case would probably have been an MOJ (unpublished opinion).
The second case yesterday is Gibbs v. State. This is the first Alaska case to deal with Blakely. To understand the issue, allow me to explain a pre-Blakely version of Alaska sentencing. Alaska felonies have generally four levels: Unclassified, 'A', 'B', and C' felonies. Unclassified felonies have specific punishments, such as murder 1 (20 - 99 years); sex assault in the first degree (8 - 40 years); Kidnapping (5 - 99 years). Generally, these are the most serious offenses. 'A' felonies are punishable by 5 - 20 years. The minimum might be 7 years if certain conditions apply, such as the use of a dangerous instrument, etc. 'B' felonies are punishable by 0 - 10 years and 'C' felonies are punishable by 0 - 5 years.
Alaska also distinguishes between the minimum mandatory and presumptive sentences. Presumptive sentences are based on the class of felony at issue and also someone's prior criminal history. So a second felony conviction for a 'B' felony means a presumptive term of 4 years, a third felony would be 6 years. A defendant incarcerated for a presumptive sentence is ineligible for discretionary parole, but is still eligible for parole for good time. A prisoner is eligible for discretionary parole after serving 1/3 of his time and prisoners receive a 1/3 good-time discount. Mandatory minimum sentences are usually offense specific, such as kidnapping and murder, and do not affect parole eligibility.
Alaska case law holds that a first felony offender should not generally receive a sentence that is more severe than the presumptive sentence for a second felony offense. Thus, someone convicted of a 'B' felony for a first felony should not get more than four years prison. Subsequent decisions have interpreted this to mean four years of active jail. Suspended time does not count. So, a court could sentence someone to six years and suspend three. Thus, a defendant would only have to actually serve 3 years with 3 years of potential prison suspended while the defendant is on probation.
Before Blakely, a sentencing hearing would involve proof of aggravators and mitigators. Neither the Alaska Court of Appeals nor the Supreme Court have dealt with the effects of Blakely on Alaska's sentencing scheme so Blakely is still a large unknown in the state. [As an aside: The circus, I mean, the legislative session starts Monday (so Alaskans should get ready to kiss more of their rights away). Nobody has really talked about sentencing reform so I have no idea what will come about.] If aggravators were proved, the court had the authority to exceed the presumptive sentence for a second felony.
Ms. Gibbs pled no contest to assault in the second degree, a 'B' felony. This was her first felony conviction. She conceded no aggravating factors, but the court ruled at her sentencing hearing that the State had proved an aggravator - that she knew or should have known that the victim of her offense was particularly vulnerable. The judge could have sentenced Ms. Gibbs to more than four years, but he sentenced her to six years with three suspended. She appealed the finding of the aggravator and the court determined that while this finding was supported by the record, it was moot because the trial court did not exceed the four year presumptive term of actual time. This decision was announced on June 30, 2004, right around the time Blakely was decided.
Ms. Gibbs sought to correct her sentence, arguing that it was illegal under Blakely. The Court of Appeals rejects this argument because while the trial court found an aggravator, the court sentenced her to only three years of active time. This was less than the four year 'limit' imposed by case law and so was within the judge's statutory discretion. Because the court did not rely on the aggravator to exceed the four years, there is, under Alaska case law, no Blakely claim. The decision does not involve any discussion of how Blakely affects the Alaska sentencing scheme. For more information about Blakely, check out either Blakely blog or Professor Berman's sentencing blog.
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