Moore v. State

OPINION

STEWART, Judge.

In Moore v. State, 128 P.3d 1081 (Alaska App.2005), we affirmed Matthew Mark Moore's convictions for attempted first-degree sexual assault, attempted second-degree sexual assault and first-degree burglary,1 but we held that under the rule in Whitton v. State,2 Moore's convictions for attempted first- and attempted second-degree sexual assault must merge.3

We rejected Moore's claims regarding his sentence, except for his claim that the record did not support statutory aggravating factor AS 12.55.155(c)(8) (Moore's criminal history includes conduct involving aggravated or repeated instances of assaultive behavior) because the record did not show that Moore had a criminal history of repeated instances of assaultive conduct. Because the superior court was required to resentence Moore, we left that issue for the superior court to address at resentencing.4

*771At resentencing, Moore conceded that he had two juvenile adjudications for assault. The superior court found that aggravator (c)(8) applied. Originally, Superior Court Judge Ben J. Esch sentenced Moore to a composite term of 12 years with 4 suspended. At Moore's resentencing, Judge Esch imposed an 8-year term with 3 years suspended for attempted first-degree sexual assault. (The conviction for attempted second-degree assault merged with this count.) Judge Esch imposed a 2-year term for first-degree burglary with 1 year of that term consecutive to attempted first-degree sexual assault. Thus, Moore received a composite 9-year term with 3 years suspended. We discussed the facts of Moore's case in the earlier opinion and will not repeat them here. Moore appeals.

Moore's attack on the superior court's finding that aggravator (c)(8) applied

Moore advances several attacks on the superior court's finding of the (c)(8) aggravator. For the most part, Moore raises arguments that could have been raised in his first appeal or that were resolved by that opinion.5

In the first appeal, Moore argued that the sentence for attempted first-degree sexual assault was excessive, that the two sexual assault charges should have merged at sentencing, and that the court erroneously failed to find a statutory mitigating factor. Moore also claimed that Judge Esch increased his sentence based on finding a statutory aggravating factor in violation of Blakely v. Washington.6 Finally, Moore contended that the composite sentence he received was excessive. We agreed with Moore that merger was required, but rejected Moore's other claims with the exception of the issue of whether there was an evidentiary basis for aggravator (c)(8) that complied with Blakely.

Moore argues that the superior court could not rely on his juvenile adjudication for conduct that constituted third-degree assault because that adjudication was ultimately vacated. However, the Alaska Supreme Court in Berfield v. State7 ruled that, while a defendant's juvenile history cannot be used to impose a mandatory sentence, that history is relevant information about a defendant's life, characteristics, background and behavior before the age of 18.8 Under Berfield, the conduct underlying Moore's adjudication for third-degree assault was pertinent information for sentencing purposes. Consistent with Blakely, Moore had the right to demand that the State prove the conduct alleged in the delinquency petition to a jury beyond a reasonable doubt.9

Moore recognizes that an adult conviction that has been set aside may be used as a basis for an aggravating factor.10 But Moore argues that a vacated adjudication should not be used to support aggravator (c)(8) because of differences between a juvenile proceeding and an adult criminal case. But as the supreme court indicated in Berfleld, a defendant's conduct as a juvenile is relevant for sentencing purposes. And a juvenile adjudication in Alaska contains the hallmarks that satisfy Blakely-the right to a jury trial and the State's burden to prove the delinquency petition beyond a reasonable doubt. Moreover, Judge Esch ruled that the important issue in Moore's case was not that Moore had two juvenile adjudications for assault, but was whether, consistent with the requirements of Blakely, each of Moore's adjudications established, beyond a reasonable doubt, that Moore had engaged in "repeated instances of assaultive behavior."

Moore contends that AS 47.12.180(a) bars the use of a juvenile adjudication as a prior criminal conviction. But Judge Esch did not use Moore's history of juvenile adjudications to establish that he had prior criminal convie-tions. Aggravator (c)(8) does not require *772proof of a conviction but is established by proof of aggravated or repeated instances of assaultive behavior. The State could have proven repeated instances of assaultive behavior whether or not Moore had been adjudicated a delinquent. But the two juvenile adjudications that Moore conceded at trial established, consistent with Blakely, that Moore had a history of repeated instances of assaultive behavior.

Conclusion

The judgment of the superior court is AFFIRMED.

MANNHEIMER, J., concurred.

. AS 11.41.410(a)(l)and AS 11.31.100(a); AS 11.41.420(a)(3)(B) and AS 11.31.100(a); and AS 11.46.300(a)(1), respectively.

. 479 P.2d 302 (Alaska 1970).

. Moore, 123 P.3d at 1092-94.

. Id. at 1092.

. See Hurd v. State, 107 P.3d 314, 327-29 (Alaska App.2005) (holding that Alaska's "law of the case" doctrine includes prohibition against claim-splitting).

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

. 458 P.2d 1008 (Alaska 1969).

. Berfield, 458 P.2d at 1011-12.

. See Greist v. State, 121 P.3d 811, 813-14 (Alaska App.2005).

. See Petersen v. State, 930 P.2d 414, 437 (Alaska App.1996).