State v. Ermels

• Decision Date: 16 March 2006
• Docket Number: No. 76665-7.,76665-7.
• Citation: 156 Wn.2d 528,131 P.3d 299
• Parties: STATE of Washington, Respondent, v. Joshua James ERMELS, Petitioner.
• Court: Washington Supreme Court

Page 299

131 P.3d 299

156 Wn.2d 528

STATE of Washington, Respondent, v. Joshua James ERMELS, Petitioner.

No. 76665-7.

Supreme Court of Washington, En Banc.

Argued November 15, 2005.

Decided March 16, 2006.

Oliver Ross Davis, Washington Appellate Project, Seattle, for Petitioner.

Nelson Kuo Hua Lee, Brian Martin McDonald, King County Prosecutor's Office, Seattle, for Respondent.

BRIDGE, J.

¶ 1 Joshua James Ermels pleaded guilty to manslaughter in the second degree after he stomped on the head of an unconscious victim and the man later died. As part of his plea agreement, Ermels stipulated to facts supporting an exceptional sentence based on victim vulnerability, and he stipulated that there was a legal basis for an exceptional sentence. He also specifically waived his right to appeal the basis for and propriety of an exceptional sentence. Ermels nevertheless argued to the Court of Appeals, after Blakely v. Washington was decided, that he had not knowingly, intelligently, and voluntarily waived his right to appeal or his right to have a jury find the facts necessary to support his exceptional sentence. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Notably, in this court Ermels does not argue that his exceptional sentence relies on impermissible Blakely fact finding. He asks that this court reverse his exceptional sentence and remand for resentencing within the standard range.

¶ 2 We conclude that Ermels cannot obtain the remedy he seeks. Ermels stipulated to the facts supporting his exceptional sentence and that there was a legal basis for an exceptional sentence. Because those elements were indivisible from the rest of his plea agreement, he cannot challenge the exceptional sentence without challenging the entire plea. For the same reason, Ermels cannot challenge the validity of his appeal waiver without challenging his entire plea. Because Ermels does not challenge his entire plea, we affirm the Court of Appeals and uphold his exceptional sentence.

I Statement of Facts

¶ 3 Shortly before 1 a.m. on July 14, 2002, Mike Kaneski and his roommate were walking home to their apartment. In front of a grocery store, the men encountered Ermels and Floyd Atkins. Shortly after, Ermels entered the grocery store. Atkins then accused the men of "`having a problem'" with his friend. Clerk's Papers (CP) at 3. Atkins punched Kaneski in the face and Kaneski fell to the ground, striking his head on the cement and losing consciousness.

¶ 4 Ermels exited the grocery store and confronted Kaneski's roommate, who was trying to call 911 from a pay phone. Several witnesses reported that Ermels then approached Kaneski as he lay unconscious, jumped into the air, and stomped on Kaneski's head. Ermels kicked Kaneski a second time before leaving the scene with Atkins. When police arrived, Kaneski was transported to Harborview Medical Center where he was treated for serious head injuries.

¶ 5 Police identified Ermels as a suspect and arrested him. They found bloody clothing and shoes in Ermels' home. Ermels confessed to having kicked Kaneski in the head. He also led police to Atkins, who eventually confessed to punching Kaneski. Sadly, Kaneski's condition deteriorated and he died a few days later.

¶ 6 Originally, Ermels was charged with first degree assault. The standard range sentence for first degree assault (with an offender score of zero) would have been 93 to 123 months. RCW 9.94A.510, .515. After Kaneski died, Ermels entered into a plea agreement with the State, and the second amended information charged him with second degree manslaughter. Ermels entered an Alford¹ plea to this charge. The standard range sentence for second degree manslaughter was 21 to 27 months, followed by 18 to 36 months of community custody, with a maximum term of 10 years. The prosecutor indicated that he would recommend a 10-year sentence. In his statement on the plea of guilty, Ermels explained:

I wish to plead guilty to the charge of manslaughter in the second degree to avoid the risk of conviction at trial of assault in the first degree, an offense with a longer standard range, and to take advantage of the opportunity to ask the court to sentence me within the standard range for manslaughter second degree or to a lesser sentence than the sentence that the state is requesting.

CP at 26 (emphasis added). The parties also stipulated that the facts set forth in the certification for determination of probable cause and the prosecutor's summary were "real and material facts for purposes of this sentencing." CP at 33. In his supplemental statement, attached to his plea agreement, Ermels stipulated:

2) . . . I hereby knowingly, voluntarily, and intelligently agree and stipulate that there is a basis for an exceptional sentence upward with the understanding that the State will recommend an exceptional sentence of 120 months confinement (maximum term). While I agree and stipulate there is a basis for an exceptional sentence upward, I am not agreeing to the State's recommendation regarding the confinement period;

3) . . . I further agree that there is sufficient evidence for the court to impose an exceptional sentence upward based on the following aggravating factor — a) I knew or reasonably should have known that the victim was particularly vulnerable because he was lying on the ground at the time that I assaulted him 4) . . . I acknowledge that under In re [Personal Restraint of] Breedlove, 138 Wash.2d 298, 979 P.2d 417 (1999), my stipulation that there is basis for an exceptional sentence as part of a plea agreement is a substantial and compelling reason that justifies such a sentence under the Sentencing Reform Act [of 1981, chapter 9.94A RCW];

5) Pursuant to this plea agreement, I knowingly, voluntarily, and intelligently waive my right to appeal the basis for and propriety of the imposition of an exceptional sentence upward, but reserve the right to appeal the length of the sentence imposed. I understand that pursuant to this plea agreement, there is a substantial likelihood that the court will impose an exceptional sentence upward;

. . . .

CP at 31-32 (emphasis added).

¶ 7 The trial court imposed an exceptional sentence of 90 months (7.5 years). In his findings of fact and conclusions of law supporting the exceptional sentence, the trial judge explained that he considered the certification of determination of probable cause, the supplemental plea agreement statement, and arguments of counsel. The findings recite the facts set forth in the certification, specifically that Ermels jumped in the air, stomped on Kaneski's head, and then kicked him again. The trial court also recited the concessions made in the supplemental plea statement. The trial judge concluded that Ermels either knew or should have known that Kaneski was particularly vulnerable and that this constituted exceptional and deliberate cruelty. While he concluded that a sentence within the standard range was too lenient, he also concluded that the maximum sentence was also inappropriate.

¶ 8 The trial court concluded that there were four substantial and compelling reasons for imposing an exceptional sentence: Ermels knowingly, intelligently, and voluntarily agreed and stipulated that there was a basis for an exceptional sentence upward, Ermels knew or should have known that the victim was particularly vulnerable because he was lying on the ground, Ermels' actions were exceptionally and deliberately cruel, and a standard range sentence was clearly inadequate and too lenient. The trial judge also attached the certification for probable cause and Ermels' supplemental statement. The findings of fact and conclusions of law were entered in January 2004.

¶ 9 The United States Supreme Court decided Blakely in June 2004. 542 U.S. 296, 124 S.Ct. 2531. Ermels appealed, arguing that Blakely rendered Washington's exceptional sentencing statutes facially unconstitutional. State v. Ermels, 125 Wash.App. 195, 199, 104 P.3d 67 (2005). He also argued that his exceptional sentence was invalid because a judge, not a jury, found the facts supporting his sentence and the court did so under the wrong standard of proof. Id.² The Court of Appeals concluded that Washington's exceptional sentence statutes were not rendered facially unconstitutional by Blakely. Id. Noting that Ermels explicitly waived his right to appeal the basis for and the propriety of the imposition of an exceptional sentence upward, the court concluded that Ermels could not undo that waiver, or the stipulation that an exceptional sentence was justified, without having to seek to undo the plea agreement in its entirety. Id. at 200, 104 P.3d 67. Additionally, the court held that Ermels was precluded from seeking appellate review of the basis for and propriety of his exceptional sentence because he did not challenge the validity of the appeal waiver. Id.³ Ermels filed a petition for review, which this court granted. State v. Ermels, noted at 154 Wash.2d 1033, 119 P.3d 852 (2005).

II Analysis

¶ 10 By statute, a Washington court may impose an exceptional sentence outside the standard range if it concludes that "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. RCW 9.94A.535 provides that whenever an exceptional sentence is imposed, the court must set forth reasons for its decision in written findings of fact and conclusions of law. A nonexclusive list of factors justifying an upward departure from a standard range sentence is set forth in RCW 9.94A.535(2) and (3) (Aggravating Circumstances); former RCW 9.94A.535(2) (2003). At the time of Ermels' plea, an exceptional sentence above the standard range was justified if "[t]he defendant knew or should have known that the victim . . . was particularly vulnerable or incapable of resistance due to . . . disability, or ill health." Former RCW 9.94A.535(2)(b).⁴ Furthermore, this court has held that a stipulation to an exceptional sentence...