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 authority for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Senior Judge COATS.

Joseph R. Turney was indicted on twenty counts involving the sexual assault and sexual abuse of his stepdaughter, D.B. The sexual misconduct took place from the time D.B. was eleven years old until shortly after she turned eighteen. Turney pled no contest to one of the original counts. Later, as part of a plea bargain, he pled guilty to two consolidated counts, one charging him with sexually assaulting D.B. and the other charging him with sexually abusing her. The plea agreement specified that Turney would not ask the superior court to find any statutory mitigating factors at sentencing, and that the State would be allowed to attempt to establish aggravating factor AS 12.55.155(c)(18)(B) — that Turney had engaged in the same conduct with the same victim.

Turney also agreed not to make any testimonial denials to the information contained in the police reports, the evidence presented to the grand jury, or portions of the presentence report that were consistent with the information set out in the police reports or evidence presented to the grand jury.

At sentencing, the State argued for aggravating factor (c)(18)(B), but Turney questioned whether the superior court could properly find this aggravating factor. Turney contended that, under Blakely v. Washington,1 this aggravating factor needed to be submitted to a jury. He also argued that, to the extent he had engaged in the same conduct with D.B., this conduct was already included in the consolidated counts for which he was being sentenced — and therefore it would be improper to aggravate his sentence based upon this same conduct.

The State argued that Blakely did not apply because the State was relying on acts which Turney had expressly admitted when he pled guilty to the consolidated counts. And the State argued that, because these consolidated counts each encompassed several different criminal acts, the aggravating factor was proved.

The sentencing judge did not submit the aggravating factor to a jury; rather, the judge decided this question himself — and found that the aggravating factor had been proved. Based on the aggravator, the judge imposed an aggravated sentence.

This case requires us to interpret the plea agreement that Turney entered into with the State. We conclude that, in the agreement, Turney and the State intended that the charges to which Turney pled would encompass his entire conduct in sexually abusing D.B. We conclude that the parties reserved a purely legal issue for the sentencing court to determine: whether the superior court could find aggravator (c)(18)(B) based solely on the fact that Turney pled guilty to consolidated charges which encompassed his entire pattern of sexually abusing D.B.

In Juneby v. State,2 and in Ritter v. State,3 this Court held that it is improper for a sentencing court to find an aggravating factor based upon conduct for which the defendant has been separately convicted and sentenced. In Turney's case, the superior court sentenced Turney on consolidated charges which encompassed his entire sexual misconduct with D.B. The sentencing court could not separately use the same conduct included in those charges to find the aggravating factor.

Factual and Procedural Background

Joseph Turney sexually abused and sexually assaulted D.B. from the time she was eleven years old until shortly after she turned eighteen. Turney was D.B.'s stepfather.

When D.B. was thirteen years old she became pregnant. She gave birth when she was fourteen. Turney was the child's father.

The State indicted Turney on twenty counts of completed and attempted sexual assault and sexual abuse of a minor. The charges included conduct from October 2001 through December 2008.

Turney pled no contest to Count 8, first-degree sexual abuse of a minor4 which alleged that between October 5, 2003, and October 5, 2004, Turney penetrated D.B.'s genitals with his penis and impregnated her.

Several months later, the State amended the indictment, consolidating five counts of the indictment into Count 2 and four counts into Count 17. Consolidated Count 2 alleged first-degree sexual abuse of a minor5 for engaging in sexual penetration with D.B. multiple times between October 1, 2001, and October 1, 2007. Consolidated Count 17 alleged first-degree sexual assault6 for engaging in sexual penetration with D.B. multiple times without her consent between October 1, 2007, and December 1, 2008. The State agreed to dismiss all of the remaining charges at sentencing.

Turney pled guilty to the two consolidated counts. The State filed a copy of the Rule 11 agreement in court. The relevant portions of the agreement were as follows:

In addition, Turney agreed that he would not make any testimonial denials of information in the police reports, evidence presented to the grand jury, or any allegations in the presentence report that were consistent with information in the police reports or evidence presented to the grand jury. The agreement did not specify any upper limit to the sentence the court could impose if the court found the aggravating factor.

Turney entered his pleas based upon this agreement.

In its sentencing memorandum the State indicated that it would "prove [the] aggravating factor ... [by] rel[ying] upon the convictions of record in this matter." Turney argued that the court could not find the aggravating factor because to do so would violate Blakely v. Washington because the aggravating factor "was not alleged in the indictment, submitted to a grand jury, or proved to a jury beyond a reasonable doubt." Turney further argued "that a finding of the State's proposed aggravator based on the convictions of record in this matter would be redundant to the convictions themselves. The court will be taking into account the fact that the counts are consolidated [in] sentencing and should not additionally aggravate Mr. Turney's sentence based on the pleadings."

At sentencing, the State argued that the court could find the aggravating factor based upon the consolidated charges before the court. Turney argued that Blakely prevented the court from finding the aggravating factor. He also argued that finding the aggravator based on the multiple counts would punish him twice for the same behavior.

The sentencing judge found that the aggravating factor had been established. The court found that the case was aggravated because Turney had assaulted D.B. hundreds of times from the time she was eleven until after she turned eighteen. He imposed a composite sentence of 66 years with 16 years suspended, 50 years to serve.

Turney's plea agreement encompassed his entire history of sexually assaulting D.B.

The record in this case establishes that, when they entered into the plea agreement, the State and Turney understood that the agreement would encompass Turney's entire history of sexually abusing D.B. The indictment sets out all of the charges that the State intended to bring against Turney. And the State consolidated all of these counts into a plea agreement and agreed to dismiss all of the charges which were not included in the plea agreement. At sentencing, the State argued that the court could find the aggravating factor based upon the consolidated charges in two ways: first, by the fact that Turney was convicted of three separate counts, and second, by the fact that two counts were consolidated counts encompassing several instances where Turney had sexually abused D.B. The State relied solely on the fact that the charges to which Turney had entered his pleas included multiple incidents of Turney's sexual abuse of D.B. over a period of time.

In addition to his Blakely argument, Turney also argued that he had admitted to a number of counts, including consolidated counts. He argued that finding the aggravating factors based upon these multiple counts would involve punishing him twice based on the same behavior. He also argued that, if the court found the aggravator, it should not increase his sentence.

In finding the aggravating factor, the sentencing judge found that Turney had admitted the extensive pattern of sexual abuse.

It therefore seems clear that all parties concerned knew that the consolidated charges to which Turney pled included his entire history of sexually abusing D.B. We conclude that the parties reserved a legal issue which we must determine — when Turney entered his pleas to charges which encompassed his entire pattern of sexual abuse of D.B., could the court, in addition to sentencing him on those convictions, find the aggravating factor that Turney had engaged in the same conduct with the same or another victim?

The sentencing judge could find the aggravating factor without violating Blakely v. Washington

Turney argues that the sentencing court could not find the aggravating factor unless the State submitted the aggravating factor to the grand jury and a jury found the aggravating factor beyond a reasonable doubt. Turney relied on Blakely v. Washington. Blakely requires that any fact, other than a fact admitted by the defendant or the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt.7

As we have previously stated, the State's position was that because Turney had admitted to his extensive pattern of sexually abusing D.B., those admissions established the aggravating factor that Turney had engaged in the same conduct with the same victim on numerous occasions. There is no question that Turney, in entering his pleas, admitted the conduct for which he was convicted. Assuming that these admissions would support the aggravating factor, the sentencing court would not violate Blakely by finding the aggravating factor.

But the real question before us is whether the aggravating factor could be based upon charges which included all of Turney's sexual abuse of D.B. when Turney was separately sentenced on charges encompassing that conduct.

Why we conclude that the sentencing court could not find the aggravating factor

Turney was sentenced on three separate charges. Two of these charges were consolidated charges involving numerous acts of sexual use of D.B. Taken together, these charges encompassed a pattern of sexual abuse of D.B. from the time she was eleven years old until shortly after she turned eighteen. Because Turney was sentenced on these charges, the sentencing court could not rely on the conduct described in these charges to find the aggravating factor.

In reaching this conclusion we rely on the principles first set out in Juneby v. State.8 The defendant in Juneby pled to charges of first-degree sexual assault and first-degree burglary. These charges arose out of a single event where Juneby broke into a woman's home and raped her.9 The sentencing judge found an aggravating factor that Juneby's sexual assault was among the most serious conduct included in the offense. But in making this finding the sentencing court relied on the fact that Juneby had broken into the woman's home to rape her.

On appeal, we held that the sentencing judge had erred in finding the aggravating factor in part based on the fact that Juneby had invaded the woman's home because Juneby had been separately convicted and sentenced for burglary. We held that, by relying on facts underlying the burglary to establish the most serious conduct aggravator for the sexual assault, the sentencing court "punish[ed] Juneby twice for the same conduct: first, by imposing the sentence for burglary; second, by aggravating his presumptive term for sexual assault."10

In 2004, we applied the reasoning in Juneby to Ritter v. State.11 Ritter, a massage therapist, was convicted of four counts of second-degree sexual assault for engaging in sexual contact with four female clients.12 At sentencing, the superior court found an aggravating factor that applies when the defendant has a history of "repeated instances of [criminal] conduct ... similar in nature to the offense for which the defendant is being sentenced."13 In finding the aggravating factor, the court relied on the fact that Ritter had sexually assaulted four different women.14 Based upon our prior holding in Juneby, we stated: "Ritter was separately convicted and sentenced for his sexual assaults upon the four women mentioned in the indictment. It was therefore improper for the superior court to rely on these four sexual assaults when determining whether [the] ... aggravator ... was proved."15

In 2007, in an unpublished case, Carr v. State,16 we applied the reasoning in Juneby to a case which involved the same aggravating factor which is involved in Turney's case. Carr was convicted on several counts of sexual abuse of a minor. The superior court found the aggravating factor that the defendant had engaged in the same conduct with the same or another victim. In finding the aggravating factor, the sentencing court relied on Carr's convictions in that case for which he had been separately sentenced. We held that the court had erred in finding the aggravating factor.17 We stated, "In Juneby, we established the rule that a sentencing court cannot base an aggravating factor on conduct for which the defendant has been separately convicted by the jury and for which the judge can impose a separate sentence. This rule is grounded on the goal of preventing a defendant's double punishment for the same conduct."18

Based on these prior cases, we conclude that, in Turney's case, the sentencing court erred in finding the aggravating factor that Turney had engaged in the same conduct with the same or another victim based upon the charges for which Turney had been separately convicted and sentenced.

The superior court's sentencing decision is REVERSED, and this case is REMANDED for re-sentencing in accordance with this decision.