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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

                                          –2–                                        2605
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).

                                            –3–                                         2605

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).

                                             –4–                                           2605

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).

                                             –5–                                          2605

               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).

                                           –6–                                        2605

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).

                                           –7–                                        2605

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.

                                           –8–                                         2605

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