HASTINGS v. STATE, A-8783 (Alaska App. 2-28-2007)

STEWART, Judge.

Louis D. Hastings was convicted of six counts of first-degree murder, and two counts of attempted murder.^fn1 Superior Court Judge Ralph E. Moody imposed six consecutive 99-year terms for the six counts of first-degree murder. He also imposed a maximum 20-year term for each count of attempted murder consecutively. Thus, Hastings received a composite 634-year term to serve. This court affirmed Hastings's convictions on appeal and affirmed Hastings's sentence for the six counts of first-degree murder. However, the court vacated the sentences for the two counts of attempted murder because Judge Moody exceeded the presumptive term without proof of any aggravating factors. The case was remanded for resentencing on the attempted murder counts.

AS 11.41.100(a)(1)(A); AS 11.31.100.

The underlying factual and procedural history of Hastings's case was provided in the resolution of Hastings's direct appeal. Hastings v. State, 736 P.2d 1157, 1160 (Alaska App. 1987).

For reasons that are not entirely clear from the record, the case languished for several years.

Ultimately, the case was assigned to Superior Court Judge pro tem Joel H. Bolger. After ruling on an application for post-conviction relief, Judge Bolger resentenced Hastings for the two counts of attempted first-degree murder. Under the code in effect at the time of Hastings's crimes, attempted murder was a class A felony. Absent proof of statutory aggravating factors, Hastings faced a presumptive term of 7 years on each count because he had no prior felony convictions.

See former AS 11.31.100(d)(1); former AS 11.41.100(b).

Former AS 12.55.125(c)(2).

The State proposed several statutory aggravating factors. Judge Bolger found that four aggravating factors were proven: (c)(1) (the victims of Hastings's attempted murder counts sustained physical injury as a result of Hastings's conduct because each was shot by Hastings); (c)(6) (Hastings's conduct created a risk of imminent physical injury to three or more persons); (c)(9) (Hastings knew his offense involved more than one victim); and (c)(10) (Hastings's conduct was among the most serious within the definition of the offense). Judge Bolger imposed the maximum 20-year term for each count and imposed each count consecutive to all other counts. Thus, Hastings received a composite 40-year term to serve for the two counts of attempted murder. Hastings appeals.

See AS 12.55.155(c).

Factual and procedural background

Hastings's convictions arose from his plan to kill all the residents of McCarthy in 1983. The influx of money and people to Alaska disturbed Hastings. He decided to end these trends by disrupting the flow of oil through the Trans-Alaska Pipeline. As part of his plan, Hastings concluded that it was necessary to kill all of McCarthy's residents. Hastings accumulated several firearms and thousands of rounds of ammunition.

Hastings, 736 P.2d at 1158.

On March 1, 1983, as M cCarthy's townspeople gathered to meet the weekly mail plane, Hastings began shooting them. He killed six people and wounded two others. One victim escaped, after she was wounded, by eluding Hastings as he searched for her. The other surviving victim escaped by plane and alerted state troopers. The troopers flew into McCarthy and captured Hastings who was attempting to escape on a snowmachine belonging to one of his victims.

Id.

Hastings was charged with six counts of first-degree murder and two counts of attempted first-degree murder. Hastings entered no contest pleas to these counts and sought to prove that he should be found guilty but mentally ill. Judge Moody rejected this claim and sentenced Hastings to the composite 634-year term. This court affirmed the superior court's sentence on the murder counts but vacated the sentence imposed on the two attempted murder counts. This court remanded the case for resentencing on those two counts and for further proceedings on Hastings's claim that he was denied a peremptory challenge in a post-conviction relief proceeding in which he sought to withdraw his pleas.

Id. at 1162.

Hastings was allowed a peremptory challenge, and sought time to prepare for litigation on his motion to withdraw his pleas. The case languished.

Years later, in 1996, Hastings filed another application for post-conviction relief seeking to withdraw his pleas, arguing that his trial attorney provided him with ineffective assistance. Judge Bolger dismissed Hastings's application on the ground that the application failed to plead a prima facie case. Hastings appealed and this court affirmed Judge Bolger's order dismissing Hastings's application.

See Hastings v. State, Alaska App. Memorandum Opinion and Judgment No. 4946 (Nov. 24, 2004), 2004 WL 2676326.

In February 2004, Judge Bolger resentenced Hastings on the attempted murder counts as described above.

Hastings's claim that Judge Bolger should have dismissed the attempted murder counts because sentencing was delayed

Hastings argues that Judge Bolger should have dismissed the attempted murder counts because of the lengthy delay between this court's 1987 opinion vacating the attempted murder sentences and the resentencing before Judge Bolger in February 2004.

The superior court resolved this claim under the four-part test for sentencing delay from Gonzales v. State. That test requires a court to consider the "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Judge Bolger rejected this claim after considering the various factors. Judge Bolger pointed out that Hastings actively sought to delay sentencing while he sought to withdraw his pleas.

582 P.2d 630, 633 (Alaska 1978).

Id.

Hastings asserted that the delay in resentencing prejudiced him because he was subjected to "cruel and unusual punishment" by being subjected to further public condemnation when he was taken to court for resentencing. This contention is meritless because, as Judge Bolger noted, whether resentencing was delayed or not, Hastings had to appear in court.

Certainly, Hastings experienced years of delay until he was resentenced, but we agree with Judge Bolger that the record supports the conclusion that Hastings was not entitled to dismissal of the attempted murder counts because of the extended delay. The delay started when Hastings sought more time to prepare his case after he successfully argued for a peremptory challenge when the case was remanded from the direct appeal. There is no indication that Hastings asserted his right to speedy sentencing while the case languished. Finally, Hastings did not show any significant prejudice. On the first-degree murder charges alone, Hastings received a composite 594-year sentence. The additional time imposed for the attempted murder counts will have no additional impact on the time Hastings will serve because Hastings will remain in prison for the remainder of his life.

Hastings's claim that Judge Bolger should have delayed resentencing

Hastings next argues that it was error for Judge Bolger not to have delayed resentencing. Hastings claims that he was prejudiced because he chose to forego presenting evidence of mental health issues for his resentencing in the event the appeal of his application for post-conviction relief was successful and he was ultimately allowed to withdraw his pleas.

This claim was not preserved because Hastings did not offer the evidence that he acknowledges he withheld. Hastings's "lost jurisdiction" claim

See State v. Wickham, 796 P.2d 1354, 1358 (Alaska 1990); Sam v. State, 842 P.2d 596, 598 (Alaska App. 1992).

In two paragraphs, Hastings argues that the superior court lost jurisdiction of the case because of the delay between this court's opinion in his direct appeal and the resentencing. But Hastings has cited no authority that a trial court's delay in taking action causes the court to "lose jurisdiction" of the case. We reject this claim.

Hastings's claim that Judge Bolger wrongly considered evidence presented at Hastings's original sentencing

Next, Hastings argues that Judge Bolger wrongly considered psychiatric reports that were admitted at Hastings's sentencing before Judge Moody. These reports were prepared as a result of Hastings's notice that he would pursue an insanity defense at trial. Hastings essentially claimed that any statements he made that formed a basis for the reports were obtained in violation of the Fifth Amendment. Because Hastings did not object to the court's consideration of those reports at the original sentencing, Judge Bolger concluded that he had waived any objection to the court's consideration of the reports at resentencing.

Judge Bolger's analysis is correct. In Williams v. State, this court held that a defendant who fails to object to psychiatric information contained in a pre-sentence report in an earlier proceeding forfeits any right to rely on a Fifth Amendment claim to bar the court from considering the information in a later proceeding. Hastings's claim on competing constitutional rights

928 P.2d 600 (Alaska App. 1996).

Id. at 606-07.

Hastings argues that Judge Bolger's rulings prejudiced him because he was pursuing his application for post-conviction relief while facing resentencing on the two attempted murder counts. Hastings claims that he was forced to choose between his right to say nothing at sentencing and his right to be heard at sentencing. But Hastings's position was not materially different than any defendant who has been convicted and faces sentencing, or has appealed and faces resentencing for one reason or another, and also may pursue post-conviction relief.

Hastings has cited no authority that requires a court to stay sentencing because the defendant has potential appeal issues. We reject Hastings's contention that Judge Bolger erred by proceeding to sentencing while Hastings pursued the appeal of the order dismissing his application for post-conviction relief.

Hastings's Blakely claim

Hastings argues that Judge Bolger illegally found aggravating factors to increase Hastings's sentence. Hastings claims that, under the United States Supreme Court's decision in Blakely v. Washington, the Sixth Amendment guarantees a right to jury trial with respect to all statutory aggravating factors. Hastings was resentenced on the attempted murder counts in February 2004, several months before Blakely was issued.

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

First, Hastings argues that it was plain error for Judge Bolger to find that Hastings was a "worst offender" without submitting that issue to a jury. A worst-offender finding is required under Alaska sentencing law for a sentencing judge to impose a maximum sentence. But this is not a limitation imposed by the sentencing statutes; it is a sentencing rule imposed by the Alaska Supreme Court to regulate the exercise of a judge's sentencing discretion within the range authorized by statute. Blakely does not affect Judge Bolger's finding that Hastings was a worst offender. Hastings's conduct in shooting eight people and killing six of them provided ample support for the finding.

See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).

See Simon v. State, 121 P.3d 815, 819-20 (Alaska App. 2005).

Hastings also argues that Judge Bolger erroneously found the aggravating factors. But even if the finding was error, the error is subject to harmless error analysis.

See Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 2553, 165 L. Ed. 2d 466 (2006); Haag v. State, 117 P.3d at 775, 784-85 (Alaska App. 2005).

The facts supporting the aggravating factors were not subject to any reasonable dispute. Hastings conceded that the victims of the attempted murder counts sustained physical injury. Hastings did not dispute that he shot and injured the victims of the attempted murder counts, that his conduct created the risk of imminent physical injury to three or more persons, and that he knew more than one victim was involved. There is no reasonable possibility that a jury would find in Hastings's favor on the aggravating factors that depended on these facts. Thus, any Blakely error was harmless beyond a reasonable doubt.

Hastings also claims that his sentences for first-degree murder should be vacated because of Blakely error. But first-degree murder is an unclassified felony with an indeterminate sentencing range of 20 to 99 years of imprisonment. Blakely does not apply. Conclusion

AS 11.41.100(b); AS 12.55.125(a).

See State v. Dague, 143 P.3d 988, 991 (Alaska App. 2006); Carlson v. State, 128 P.3d 197, 204 (Alaska App. 2006).

The judgment of the superior court is AFFIRMED.