Recent Alaska Blakely decisions

An interested reader in Alaska sent me a very interesting report on four recent Alaska Court of Appeals opinions concerning Blakely that have been issued in the last few weeks.  Here are portions of the report:

In Haag v. State, Op.No. 1996 (Alaska App. July 22, 2005) (available here), the applied plain-error analysis based on the defendant's failure to raise a Blakely claim at trial, and found that Haag had satisfied the plain-error standard.  In remanding for resentencing, the Haag court stated that the issue of whether it would be permissible for the trial court to hold a jury trial on the disputed aggravating factor could be litigated in the trial court. (The court of appeals' statement that this is an unresolved question is significant in that several trial courts have issued sweeping rulings that Alaska's whole presumptive sentencing scheme was unconstitutional and that there was no way it could be rendered constitutional by jury trials on aggravators, because the statutory scheme didn't provide for it.)

In Peltola v. State, Op.No. 1994 (Alaska App., July 22, 2005) (available here), the court of appeals held that a defendant who conceded the aggravating factors at a post-Blakely sentencing hearing had no viable Blakely claim on appeal.  Some language suggests the court may ultimately adopt the argument that once the jury finds one Blakely aggravator, that opens up the defendant to the maximum sentence at which point the judge can consider other traditional factors under a preponderance standard.

In Edmonds v. State, Op.No. 1998 (Alaska App., July 29, 2005) (available here), the court of appeals generally accepted the argument that Blakely did not apply to consecutive sentencing decisions, though the court reserved judgment on whether one common-law sentencing rule that the Alaska Supreme Court adopted years ago could potentially be a basis for applying Blakely to some consecutive sentencing decisions.

In Milligrock v. State, Op.No. 1999 (Alaska App. July 29, 2005) (available here), the court appears to implicitly take the position that Blakely error is not structural, going with a harmless or plain-error analysis, and the court ruled that prior criminal history aggravators that are based solely on the fact of a prior conviction are exempt from Blakely, and thus upheld two of Milligrock's aggravating factors. They found no plain error with respect to a third.

It is clear that the court of appeals is aware of the need to provide some guidance to trial courts and has a bunch of Blakely cases in the pipeline.... The court of appeals has greater significance in Alaska's statutory scheme because you only have an appeal as of right to the court of appeals, and their jurisdiction is limited exclusively to criminal cases.  Thus they are de facto the court of last resort for most criminal matters in Alaska, although the Alaska Supreme Court will undoubtedly take discretionary review on a few of the bigger Blakely issues, just to have their say in the matter and finalize a few basic parameters. Unfortunately, they tend to take two to three times as long as the court of appeals does to issue opinions.