State v. Borboa

• Decision Date: 07 December 2004
• Docket Number: No. 30330-2-II.,30330-2-II.
• Citation: 124 Wash. App. 779,102 P.3d 183,124 Wn. App. 779
• Parties: STATE of Washington, Respondent, v. Escolastico Casey BORBOA, Appellant.
• Court: Washington Court of Appeals

102 P.3d 183

124 Wn. App. 779

124 Wash. App. 779

STATE of Washington, Respondent, v. Escolastico Casey BORBOA, Appellant.

No. 30330-2-II.

Court of Appeals of Washington, Division 2.

December 7, 2004.

David Schultz, Attorney at Law, Camas, WA, for Appellant.

Scott Douglas Jackson, Attorney at Law, Vancouver, WA, for Respondent.

PUBLISHED IN PART

MORGAN, A.C.J.

The main question in this appeal is whether a sentence imposed under RCW 9.94A.712 is subject to the Sixth Amendment right to jury trial as interpreted in Apprendi v. New Jersey¹ and Blakely v. Washington.² Answering yes, we affirm in part and reverse in part.

RCW 9.94A.712 applies when a non-persistent offender is sentenced for specified crimes that include first degree rape and first degree kidnapping with sexual motivation, but not second degree assault of a child.³ When RCW 9.94A.712(3) applies, it requires the trial court to impose both a "maximum term" and a "minimum term." The maximum term shall consist "of the statutory maximum sentence for the offense." The minimum term shall be "within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence."⁴ Under RCW 9.94A.535, a sentence outside the standard range must be based on "substantial and compelling reasons" that were not considered when the standard range was set,⁵ including but not limited to a finding of sexual motivation under RCW 9.94A.835.⁶

When the trial court's standard or exceptional minimum term expires, the Indeterminate Sentence Review Board "shall order the offender released, under such affirmative and other conditions as the board determinates appropriate, unless the board determines... that the offender will commit sex offenses if released[,]" in which case the Board "shall establish a new minimum term, not to exceed an additional two years."⁷ If the offender violates the Board's conditions while on release, the Board "may transfer the offender to a more restrictive confinement status to serve up to the remaining portion of the sentence."⁸

As this summary shows, RCW 9.94A.712 has three essential features. First, it requires the sentencing court to set a minimum term that may be standard or exceptional. Second, it permits the Indeterminate Sentence Review Board to set a second minimum term which, if imposed, takes effect at the end of the court's minimum term. Third, it requires the sentencing court to set a maximum term that equals the statutory maximum sentence. The defendant must serve each minimum term that is imposed, but he need not serve the maximum term unless the minimum terms happen to equal it. Instead of being a sentence that the defendant must actually serve, the maximum term is merely a limitation on the combined total of the court's and the Board's minimum terms. Indeed, it is a limitation that simply reiterates in the context of RCW 9.94A.712 what is already in the statutes elsewhere: that in general neither the court nor the Board shall maintain jurisdiction over the defendant for more than life if the crime is a Class A felony, for more than ten years if the crime is a Class B felony, or for more than five years if the crime is a Class C felony.⁹

Against this backdrop, a jury convicted Escolastico C. Borboa of first degree kidnapping (Count I), second degree assault of a child (Count II), and first degree rape of a child (Count III). The jury also returned a special finding that he had committed the kidnapping (Count I) with sexual motivation.

The trial court sentenced under RCW 9.94A.712 on all three counts. It found that Borboa had acted with deliberate cruelty; that the victim had been particularly vulnerable due to her extreme youth; and that Borboa's standard ranges were 77-102 months on Count I, 51-68 months on Count II, and 138-184 months on Count III.¹⁰ On each of the three counts, the court imposed an exceptional minimum term of 600 months and a maximum term of life.¹¹ The minimum on each count was based on the judge's findings of deliberate cruelty and particular vulnerability, and the minimum on Count I was additionally based on the jury's finding of sexual motivation.

On appeal, Borboa asserts that the trial court violated his Sixth Amendment right to jury trial as interpreted in Apprendi and Blakely. The State responds that the Sixth Amendment right to jury trial as interpreted in Apprendi and Blakely could not have been violated because it does not apply to sentences imposed under RCW 9.94A.712. The State further responds that even if the Sixth Amendment does apply, it was waived here. We examine whether the Sixth Amendment applies before addressing whether it was waived.

Applicability

The Sixth Amendment guarantees the right to jury trial. Applicable to the States through the Fourteenth Amendment's Due Process Clause,¹² it provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...."

Apprendi construed this right to jury trial. The defendant pleaded guilty to second degree possession of a firearm for an unlawful purpose. That crime carried "a penalty range of 5 to 10 years,"¹³ which could be increased to "between 10 and 20 years" if the sentencing judge found that the defendant's motivation was racial.¹⁴ The sentencing judge made such a finding and sentenced the defendant to 12 years. The question on appeal was whether such a finding could be made by the judge, or whether it had to be made by a jury. Answering that it had to be made by a jury, the United States Supreme Court reversed. It held that a legislature cannot constitutionally "remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed."¹⁵ "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."¹⁶

Blakely also construed the Sixth Amendment's right to jury trial. The defendant pleaded guilty to kidnapping with a firearm. His standard range was 49-53 months, and his statutory maximum term was 10 years. The trial judge imposed an exceptional sentence of 90 months based on his own finding that the defendant had acted with deliberate cruelty.¹⁷Apprendi had already held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."¹⁸ The new question was whether "the prescribed statutory maximum" for Apprendi purposes was the top of the standard range (53 months)¹⁹ or the statutory maximum term (120 months).²⁰ Reversing, the United States Supreme Court held that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict" — "[i]n other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."²¹ Since 53 months was the most the trial judge could have imposed based only on the findings of the jury, he had erred by imposing 90 months.

Together, Apprendi and Blakely clarify how the Sixth Amendment's right to jury trial is satisfied. Before Apprendi and Blakely, the right was satisfied so long as the jury found all the elements of the crime as defined by the legislature.²² After Apprendi and Blakely, the right is satisfied only if the jury finds all the facts needed to support the sentence that the defendant actually must serve, whether or not those facts are elements of the crime.

In clarifying the Sixth Amendment's right to jury trial, Apprendi and Blakely do not affect the trial judge's ability to impose either a standard range minimum term or a maximum term under RCW 9.94A.712; so long as the jury finds each element of the crime, which it does by returning a general verdict of guilty, it finds each fact needed to support both a standard range minimum term and a maximum term. In clarifying the Sixth Amendment's right to jury trial, however, Apprendi and Blakely significantly change the trial judge's ability to impose an exceptional minimum term under RCW 9.94A.712. RCW 9.94A.712 provides that an exceptional minimum term must meet the requirements of RCW 9.94A.535. RCW 9.94A.535 provides that the facts needed to support an exceptional term are not just the elements of the crime, but must include one or more aggravating facts that are not elements of the crime.²³ Necessarily then, the jury does not find each fact needed to support an exceptional minimum term simply because it returns a general verdict of guilty — and without jury findings, an exceptional minimum term violates the Sixth Amendment's right to jury trial.

The State argues that if the trial court can impose a maximum term, it necessarily can impose a shorter minimum term, regardless of whether that minimum is standard or exceptional. Apprendi and Blakely, however, require that the jury find each fact needed to support the sentence that the defendant actually must serve. Under RCW 9.94A.712, that sentence is the court's standard or exceptional minimum term; it is not the court's maximum term, for that merely limits the combined total of the court's and the Board's minimum terms. Here then, Apprendi and Blakely required that the jury find each fact needed to support the court's exceptional minimum term, even though the trial court also imposed a maximum term that limited the combined total of the court's and the Board's minimum terms.

According to the State, the Sixth Amendment's right to jury trial does not affect an exceptional minimum term imposed under RCW 9.94A.712 because it "applies only to...