Brown v. State

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

JEFFREY L. BROWN,

Court of Appeals No. A-11666

Appellant, Trial Court No. 3PA-13-378 CR

v.

O P I N I O N

STATE OF ALASKA,

Appellee. No. 2605 — June 22, 2018

Appeal from the Superior Court, Third Judicial District, Palmer,

Vanessa H. White, Judge.

Appearances: 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.

Judge MANNHEIMER.

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

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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

1

See Montana Code §§ 61-8-401, 61-8-714, and 61-8-731 (2001 versions).

2

See Altherr v. State, 911 So.2d 1105, 1111, 1114 (Ala. Crim. App. 2004); People v.

Casillas, 111 Cal.Rptr.2d 651, 655 (Cal. App. 2001); Talley v. State, unpublished, 2003 WL

23104202 at *2 (Del. 2003); State v. Farfan-Galvan, 389 P.3d 155, 160 n. 5 (Idaho 2016);

People v. Braman, 765 N.E.2d 500, 502-04 (Ill. App. 2002); State v. Kendall, 58 P.3d 660,

668 (Kan. 2002); Commonwealth v. Ramsey, 920 S.W.2d 526, 528 (Ky. 1996); People v.

Callon, 662 N.W.2d 501,508 (Mich.App.2003); State v. Rattles, 450 S.W.3d 470, 473 (Mo.

App. 2014); State v. Huff, 802 N.W.2d 77, 102 (Neb. 2011); Ronning v. State, 992 P.2d 260,

261 n. 3 (Nev. 2000); State v. Thompson, 58 A.3d 661, 663-65 (N.H. 2012); State v.

Bullcoming, 189 P.3d 679, 686-87 (N.M. App. 2008); State v. Wideman, 556 N.W.2d 737,

743 (Wis. 1996); Derrera v. State, 327 P.3d 107, 110 (Wyo. 2014). Cf. People v. Martinez,

128 P.3d 291, 294 (Colo. App. 2005) (holding that a defendant has no right to jury trial when

the court determines whether the defendant has prior convictions that raise the sentence to

a felony level).

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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 “elements” of the crime

in the strict sense. As a result, defendants in these states are not entitled to a jury trial on

the issue of whether they have prior convictions.

Thus, the real question presented in this appeal is whether the definition of

“prior felony conviction” codified in AS 12.55.145(a)(1)(B) excludes felony DUI

convictions from states like Montana — states where the question of whether the

defendant has prior convictions is litigated to the sentencing judge rather than to the jury.

Brown argues that AS 12.55.145(a)(1)(B) should be interpreted to exclude

felony DUI convictions from Montana and these other states. In support of this

argument, Brown relies on this Court’s decision in State v. Peel, 843 P.2d 1249 (Alaska

App. 1992). The question in Peel was whether a defendant’s prior conviction for

misdemeanor DUI in Louisiana should be counted as a prior conviction for purposes of

3

Apprendi v. New Jersey, 530 U.S. 466, 490; 120 S.Ct. 2348, 2362-63; 147 L.Ed.2d

435 (2000); Blakely v. Washington, 542 U.S. 296, 301-04; 124 S.Ct. 2531, 2537-38; 159

L.Ed.2d 403 (2004).

4

Compare the 2001 version of Montana Code § 61-8-731 with the 2001 version of

AS 28.35.030(n).

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enhancing the defendant’s Alaska sentence. This Court held that, because Louisiana law

did not give misdemeanor DUI defendants the right to a jury trial, the defendant’s prior

misdemeanor DUI conviction from Louisiana could not be counted as a prior DUI

conviction in Alaska. Peel, 843 P.2d at 1250-51.

Brown argues that our interpretation of AS 12.55.145(a)(1)(B) should be

guided by our decision in Peel. He contends that Alaska should not recognize an out-of­

state conviction unless, in that other state, a defendant’s right to jury trial is co-extensive

with the right to jury trial granted by Alaska law.

But the situation presented in Peel is not equivalent to the situation

presented in Brown’s case. The defendant in Peel faced a higher penalty for his Alaska

DUI conviction because of his prior conviction for misdemeanor DUI in Louisiana —

a conviction that was based on a judge’s verdict rather than a jury’s, because

misdemeanor defendants in Louisiana had no right to be tried by jury. In Peel, we

concluded that the Louisiana judge’s finding that Peel had committed DUI “[was] simply

too unreliable to be depended on”. Peel, 843 P.2d at 1251.

In Brown’s case, on the other hand, his Montana DUI conviction was based

on a jury’s finding that he committed DUI. It is true that Brown’s sentencing judge

elevated Brown’s sentence for this offense based on Brown’s prior DUI convictions —

but Brown’s prior DUI convictions were likewise based on jury findings that Brown was

guilty of DUI (or those convictions were entered after Brown waived his right to jury

trial). 5

Because Brown had the right to be tried by jury for all of his prior Montana

crimes, we do not face the same problem as in Peel: there is no reason to believe that

any of the Montana findings of criminality are “too unreliable to be depended on”.

5

See State v. Meyer, 396 P.3d 1265, 1268-69 (Mont. 2017); State v. Weldele, 69 P.3d

1162, 1171-72 (Mont. 2003).

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Montana law differs from Alaska law when it comes to the question of

whether a DUI defendant does, in fact, have prior convictions: in Montana, the

sentencing judge decides this issue. 6 But even under Alaska law, where a defendant can

demand a jury trial on this issue, the defendant’s right to challenge the prior convictions

is fairly limited.

In Brockway v. State, 37 P.3d 427, 429-430 (Alaska App. 2001), this Court

held that a defendant generally has no right to collaterally attack their prior convictions

when the defendant is prosecuted for a new crime, even if the defendant’s sentence for

the new crime will be enhanced on account of those prior convictions. See also

Brodigan v. State, 95 P.3d 940, 943-44 (Alaska App. 2004), where we held that a

defendant’s prior DUI convictions are presumed to be valid — so that even when a

defendant asserts that there was a constitutional flaw in the statute under which they were

convicted, it is the defendant’s burden to present some affirmative evidence that, given

the facts of their case, their prior conviction was indeed affected by this alleged

constitutional infirmity.

AS 12.55.145(c) lists a few narrow grounds on which a defendant can

challenge their prior convictions. For example, a defendant is allowed to challenge the

authenticity of the prior judgement of conviction, or to deny that they are the person

named in that judgement, or to challenge whether their prior conviction occurred during

the pertinent “look-back” period.

Because felony DUI defendants have only a circumscribed ability to

challenge their prior convictions, we have seen very few cases in which a felony DUI

defendant has actually insisted on their right to jury trial on this issue. More commonly,

a felony DUI defendant will invoke their right to a bifurcated trial under Ostlund v.

6

State v. Damon, 119 P.3d 1194, 1197, 1201 (Mont. 2005).

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State, 7 so that the jury never hears about the prior convictions unless the jury finds the

defendant guilty of the current DUI charge. Even then, a DUI defendant will often

stipulate that they have the prior convictions, or the defendant will waive their further

right to a jury trial and agree to have the judge make this determination.

Thus, even though a defendant’s prior convictions are an element of felony

DUI (in the strict sense) under Alaska law, there appears to be very little practical

difference between the way felony DUI charges are normally litigated in Alaska and

the way felony DUI charges are litigated in Montana and the other states listed in

footnote 2.

We acknowledge that, in some contexts, the difference between Alaska law

and Montana law might be crucial. But our task in the present case is to assess the

significance of this difference as a general matter, in light of the definition of “prior

felony conviction” found in AS 12.55.145(a)(1)(B).

The fact that, in Alaska, a defendant’s prior convictions are normally not

litigated to the jury, even though felony DUI defendants have a right to jury trial on this

element, suggests that our legislature did not intend AS 12.55.145(a)(1)(B) to exclude

felony DUI convictions from Montana and all the other states listed in footnote 2, where

a defendant’s prior convictions are, by law, litigated to the sentencing judge.

This conclusion is bolstered by the Alaska Supreme Court’s decision in

State v. Smart, 202 P.3d 1130 (Alaska 2009). The question litigated in Smart was

whether the right to jury trial announced in Apprendi v. New Jersey and Blakely v.

Washington should be applied retroactively — in other words, whether criminal

defendants whowere convicted and sentenced before Apprendi and Blakely were decided

7

51 P.3d 938, 941-42 (Alaska App. 2002).

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could collaterally attack their convictions or sentences based on the fact that they did not

receive a jury trial on aggravating factors as required by Apprendi or Blakely.

In resolving this issue, our supreme court considered whether the require­

ment of a jury trial was intended to ensure the fundamental fairness of the judicial

proceedings — or, phrased another way, whether it was fundamentally unfair to have a

judge decide these issues rather than a jury. 8 The supreme court concluded that the

answer to this question was “no”:

The [United States] Supreme Court, in Schriro v.

Summerlin, has already [held] that judicial fact-finding,

instead of jury fact-finding, does not “so seriously diminish

accuracy as to produce an impermissibly large risk of

injustice.” We think the Court’s analysis is persuasive on this

point. In Summerlin, ... the Court concluded that the

evidence of whether judges or juries were better fact-finders

was too equivocal to conclude that judges were less accurate

fact-finders or to hold that “judicial factfinding so seriously

diminishes accuracy that there is an impermissibly large risk

of punishing conduct the law does not reach.” ... We think

it is highly likely that the [U.S. Supreme] Court would reach

the same conclusion if it were deciding whether the jury

fact-finding rule of Blakely is fully retroactive. We therefore

conclude that judicial fact-finding instead of jury fact-finding

does not substantially impair the truth-finding function of the

criminal trial and does not raise serious questions about the

accuracy of fact-finding ... .

Smart, 202 P.3d at 1142-43 (emphasis in the original text of Schriro v. Summerlin).

The supreme court’s resolution of this point in Smart obviously casts doubt

on this Court’s decision in Peel — in particular, our conclusion that, unless a defendant

8

Smart, 202 P.3d at 1142-43.

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has the right to demand a trial by jury, any verdict in a bench trial is “simply too

unreliable to be depended on”. But even assuming that Peel remains good law with

respect to out-of-state findings of guilt, we will not extend Peel to out-of-state findings

that a defendant has prior convictions.

Based on our supreme court’s discussion in Smart, and based on our

conclusion that the Alaska legislature probably did not intend to exclude prior felony

DUI convictions from a third of our sister states, we now hold that a felony DUI

conviction from Montana is a “prior felony conviction” for purposes of AS 12.55.­

145(a)(1)(B). More specifically, we hold that the elements of felony DUI as defined

under Montana law are sufficiently similar to the elements of felony DUI as defined in

Alaska, even though, in Montana, a defendant has no right to demand a jury trial on the

question of their prior convictions.

Accordingly, we AFFIRM the superior court’s decision to sentence Brown

as a second felony offender.

–9– 2605