JAMES STONEKING v. STATE OF ALASKA (2010)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

James S. Stoneking was convicted of first-degree burglary,¹ first-degree murder,² attempted first-degree murder,³ and first-degree assault.⁴  Superior Court Judge Jay Hodges imposed a sentence of 99 years' imprisonment for the murder conviction based on his conclusion that this premeditated offense was the “most serious” within its class.   The judge imposed concurrent sentences of 10 years' imprisonment for the burglary conviction and 20 years for the assault conviction.   The judge did not impose any sentence for the attempted murder conviction because it merged with the assault conviction involving the same victim.  (When Stoneking committed these offenses, first-degree assault and attempted first-degree murder were both class A felonies.)   We affirmed Stoneking's convictions in 1990.⁵

In 2005, Stoneking filed a motion based on Alaska Criminal Rule 35(a), contending that his sentence was illegal.   Superior Court Judge Mark I. Wood denied the motion, and Stoneking now appeals.

In his motion, Stoneking mainly argued that his sentences had been illegally increased by aggravating factors that were not presented to the trial jury and proven beyond a reasonable doubt, and he repeats that argument in this appeal.   Stoneking's argument is based on the United States Supreme Court decision in Blakely v. Washington.⁶  But the rules established in Blakely do not apply retroactively to cases that became final before that decision was issued in 2004.⁷  Stoneking cannot rely on Blakely because his case became final after this court affirmed his convictions in 1990.

In his motion, Stoneking also argued that Judge Hodges failed to make a required finding that he was a worst offender and that his composite sentence was excessive.   He repeats these arguments on appeal.   In response, the State argues that these issues are not properly presented in a motion to correct an illegal sentence under Rule 35(a).

We have previously recognized that the claims available under Rule 35(a) are limited:

The term “illegal sentence” has been narrowly construed.   It applies only to sentences which the judgment of conviction did not authorize.   Examples of illegal sentences would be (1) a sentence that was contrary to the applicable statute, i.e., in excess of the statutory penalty;  (2) a written judgment not conforming to the oral pronouncement of sentence;  or, (3) “a sentence that is ambiguous with respect to the time and manner in which it is to be served.”   Rule 35(a) does not permit consideration of matters outside the sentencing record, nor does it authorize a collateral attack on the proceedings which resulted in the sentence imposed.[8]

Stoneking's excessive-sentence claim and his related worst-offender claim cannot be raised in a Rule 35(a) motion because these claims would not establish an “illegal sentence” under our construction of this rule.⁹  Moreover, Stoneking gave up his right to pursue claims of this type when he abandoned his sentence appeal.¹⁰

On appeal, Stoneking also argues that the indeterminate sentencing scheme for unclassified felonies violates the Alaska constitutional guarantees of equal protection,¹¹ due process,¹² and reformation in sentencing.¹³  Stoneking argues that these provisions were violated when the superior court imposed sentence for first-degree murder.   Stoneking contends that because Blakely applies to fact-finding necessary to increase a presumptive term for a classified felony, it is not fair that judicial fact-finding for an unclassified felony that may result in a longer term to serve does not have to meet the Blakely standard.   But Stoneking provides no authority to support the argument that Blakely applies to the judicial fact-finding predicate to imposing a term to serve that is authorized by the jury's verdict.

Stoneking failed to present these constitutional claims to the superior court, so they are waived unless he can establish plain error.¹⁴  Judge Woods did not commit plain error by not addressing these claims sua sponte because it would not be obvious to any competent judge or attorney that Stoneking can raise these claims in a motion to correct an “illegal sentence” under Rule 35(a).¹⁵

Nor did Judge Hodges commit plain error when he sentenced Stoneking without considering Stoneking's Blakely-based claims, because Stoneking was sentenced more than a decade before the Supreme Court issued Blakely.

We therefore AFFIRM the superior court order denying the motion to correct illegal sentence.

FOOTNOTES

FN1. AS 11.46.300(a)(1)..  FN1. AS 11.46.300(a)(1).

FN2. AS 11.41.100(a)(1)..  FN2. AS 11.41.100(a)(1).

FN3. AS 11.31.100(a)..  FN3. AS 11.31.100(a).

FN4. AS 11.41.200(a)(1)..  FN4. AS 11.41.200(a)(1).

FN5. Stoneking v. State, 800 P.2d 949 (Alaska App.1990)..  FN5. Stoneking v. State, 800 P.2d 949 (Alaska App.1990).

FN6. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)..  FN6. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

FN7. State v. Smart, 202 P.3d 1130, 1146-48 (Alaska 2009)..  FN7. State v. Smart, 202 P.3d 1130, 1146-48 (Alaska 2009).

FN8. Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App.1984) (internal citations omitted)..  FN8. Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App.1984) (internal citations omitted).

FN9. See Esmailka v. State, Memorandum Opinion and Judgment No. 5413 (Alaska App. Dec. 10, 2008), 2008 WL 5192405, *1..  FN9. See Esmailka v. State, Memorandum Opinion and Judgment No. 5413 (Alaska App. Dec. 10, 2008), 2008 WL 5192405, *1.

FN10. See Stoneking v. State, Memorandum Opinion and Judgment No. 3375 (Alaska App. April 17, 1996), 1996 WL 341289, *1..  FN10. See Stoneking v. State, Memorandum Opinion and Judgment No. 3375 (Alaska App. April 17, 1996), 1996 WL 341289, *1.

FN11. Alaska Const. art. 1, § 1..  FN11. Alaska Const. art. 1, § 1.

FN12. Alaska Const. art. 1, § 7..  FN12. Alaska Const. art. 1, § 7.

FN13. Alaska Const. art. 1, § 12..  FN13. Alaska Const. art. 1, § 12.

FN14. See Lockuk v. State, 153 P.3d 1012, 1018 (Alaska App.2007) (holding that defendant who raises a claim for the first time in a Rule 35(a) motion must demonstrate plain error)..  FN14. See Lockuk v. State, 153 P.3d 1012, 1018 (Alaska App.2007) (holding that defendant who raises a claim for the first time in a Rule 35(a) motion must demonstrate plain error).

FN15. Bishop, 685 P.2d at 104-05 (holding that due process and equal protection challenges to parole statutes could not be raised in a Rule 35(a) motion)..  FN15. Bishop, 685 P.2d at 104-05 (holding that due process and equal protection challenges to parole statutes could not be raised in a Rule 35(a) motion).

BOLGER, Judge.