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

BOLGER, Judge.

Dr. Stephen W. Grandstaff prescribed excessive controlled substances for female patients and manipulated them to have sex with him in exchange for more prescriptions.1 He was convicted of seventy-three counts involving sexual assault, theft, and controlled substance misconduct, and the trial judge imposed a composite sentence of thirty-four years' imprisonment with fifteen years suspended. The sentencing judge relied on an aggravating factor that he found without a jury when he imposed sentences in excess of the presumptive term for Grandstaff's thirty-two convictions for second-degree controlled substance misconduct. Grandstaff now challenges these sentences based on Blakely v. Washington, which established that most aggravating factors must be submitted to a jury.2 We conclude that Grandstaff's composite sentence could be restructured to obtain the same result without using the aggravating factor, so the Blakely violation was not plain error. Background

Grandstaff was convicted of one count of first-degree sexual assault, one count of second-degree sexual assault, three counts of second-degree theft, thirty-two counts of second-degree controlled substance misconduct, and thirty-six counts of fourth-degree controlled substance misconduct.3

In its sentencing memorandum, the State argued that an aggravating factor applied to Grandstaff's convictions for second-degree controlled substance misconduct because the offenses "involved large quantities of a controlled substance."4 At the sentencing hearing, Superior Court Judge Ralph Beistline found by clear and convincing evidence "that [the large-quantities aggravator] does apply ... given the large number of transactions, the cumulative amount of drugs, and the extended period of time involved." The court initially imposed a sentence of ten years with five years suspended for each of these convictions.

Grandstaff filed a motion to correct an illegal sentence with the trial court while his direct appeal was still pending. The trial court denied the motion, and Grandstaff now appeals.

Discussion

The Blakely jury-trial requirement applies to cases like Grandstaff's pending on direct appeal at the time of that decision.5 But Grandstaff did not request a jury trial at the sentencing hearing, so he must now show plain error.6

In order to show plain error, Grandstaff must establish that "the error was so prejudicial to the fairness of the proceedings that failure to correct it would perpetuate manifest injustice."7 A Blakely error is not plain error if the defendant is being sentenced for more than one crime and the judge could have imposed the same composite term without relying on the challenged aggravating factor.8

In this case, Judge Beistline imposed consecutive sentences for the first count imposed for each category of offense: second-degree theft (Medicaid funds related to S.Y.), second-degree controlled substance misconduct (prescribed to S.Y.), fourth-degree controlled substance misconduct (prescribed to S.Y.), first-degree sexual assault (victim S.Y.), fourth-degree controlled substance misconduct (prescribed to S.P.), and second-degree sexual assault (victim S.P.).9

Judge Beistline initially imposed a term of ten years with five years suspended for each of the thirty-two counts of second-degree controlled substance misconduct. The first count for this category (count 2) was imposed consecutively to the lead counts for the other offense categories. But the remaining thirty-one counts of second-degree controlled substance misconduct were imposed concurrently.10 So Grandstaff received a total sentence of five years to serve and an additional five years suspended for these thirty-two counts.

At the time of these crimes, the presumptive term for second-degree controlled substance misconduct was five years.11 So the five years of suspended time that Judge Beistline imposed on each of these counts was based on the aggravating factor that he found without a jury.

Judge Beistline could have achieved the same result by imposing the five-year presumptive sentence on each count. He could have imposed the sentence for one or more of those counts consecutively, and he could have suspended the sentence that he imposed on those consecutive counts.12 This procedure would yield the same total sentence for these counts — a sentence of five years to serve and an additional five years suspended.

While our prior decisions indicate that this plain error analysis applies when the sentencing judge intends to impose a certain composite term,13 we have not required an express statement from the judge that he was trying to achieve a specific composite term as long as the record shows the judge's intent.14 In Grandstaff's case, events after the sentencing hearing sufficiently demonstrate the judge's intent.

At the sentencing hearing, Judge Beistline announced a composite sentence of thirty-four years' imprisonment with fourteen years suspended, twenty years to serve. But three weeks later, when the judge entered the written judgment, he reduced the composite sentence to require Grandstaff to serve only nineteen years. The judge accomplished this result by suspending an additional year on the lead conviction for second-degree controlled substance misconduct. The judge explained that he had decided to reduce the composite sentence to take into account the defendant's voluntary decision to undertake counseling and inpatient treatment prior to his indictment. This explanation adequately establishes that the judge structured the sentence to reflect a certain composite term. We therefore conclude that the Blakely violation at the sentencing hearing was not plain error.

Conclusion

We AFFIRM the superior court's order denying Grandstaff's motion to correct an illegal sentence.