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Grohs v. State8/12/2005
No. 2001
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
Gary L. Grohs was stopped for not having an illuminated rear license plate. Based on the state trooper's observations during this traffic stop, Grohs was arrested for driving under the influence . Grohs then refused to submit to a breath test. Based on this episode, and based on Grohs's prior convictions for driving while intoxicated, Grohs was indicted for felony driving under the influence and felony breath test refusal.
Following his indictment, Grohs asked the superior court to dismiss the charges. Grohs contended that the traffic stop had been pretextual, and that all of the government's evidence should therefore be suppressed. When the superior court denied the motion to dismiss, Grohs entered a Cooksey plea to the felony breath test refusal charge, preserving his right to litigate the claim of pretext stop on appeal. The State, for its part, dismissed the felony DUI charge (as well as a related misdemeanor charge of driving with a suspended license).
Felony breath test refusal is a class C felony, and Grohs was a second felony offender. (He had a prior conviction for felony driving under the influence .) Under Alaska's sentencing law at that time, Grohs faced a presumptive term of 2 years' imprisonment.
The State proposed one aggravating factor: AS 12.55.155(c)(21) - that Grohs had a history of repeated instances of criminal conduct similar in nature to his present offense. To prove this aggravating factor, the State relied on the fact that Grohs had six prior convictions for driving while intoxicated (the one prior felony, plus five earlier misdemeanor convictions). At the sentencing hearing, Grohs's attorney conceded that this aggravator was proved.
The presence of this aggravating factor authorized the superior court to exceed the 2-year presumptive term and consider any sentence up to the 5-year maximum term for a class C felony. Based on the aggravator, the superior court sentenced Grohs to 4 years' imprisonment with 11/2 years suspended (i.e., 21/2 years to serve).
While Grohs's case was on appeal, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court held that a defendant has a right to a jury trial (under the Sixth Amendment to the United States Constitution) with regard to any disputed factual issue, other than a prior conviction, which increases the defendant's maximum sentence. Grohs argues that the superior court violated Blakely in his case by increasing his sentence above the 2-year presumptive term, based on aggravator (c)(21), without offering him a jury trial on this aggravator.
Based on the analysis in our recent decision in Nease v. State, 105 P.3d 1145 (Alaska App. 2005), we conclude that Grohs failed to establish that his traffic stop was pretextual. And with regard to the Blakely issue, we conclude that Grohs has failed to show plain error (for reasons that we explain in detail below). We therefore affirm Grohs's conviction and his sentence.
The Claim that the Traffic Stop was Pretextual
Grohs contends that, even though his rear license plate may not have been illuminated as required by 13 AAC 04.025(c), the state trooper's true intention was not to enforce this regulation (either by issuing a citation to Grohs, or by warning Grohs that his vehicle was not in compliance). Rather, Grohs suggests that the trooper's true intention was to investigate whether Grohs might be driving while under the influence - and that, because the officer had no reasonable suspicion to justify a DUI stop
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