State v. Clarke

• Decision Date: 11 May 2006
• Docket Number: No. 76602-9.,76602-9.
• Parties: STATE of Washington, Respondent, v. John Mark CLARKE, Petitioner.
• Court: Washington Supreme Court

Page 188

134 P.3d 188

156 Wn.2d 880

STATE of Washington, Respondent, v. John Mark CLARKE, Petitioner.

No. 76602-9.

Supreme Court of Washington, En Banc.

May 11, 2006.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, for Petitioner/Appellant.

Brian Martin McDonald, Erin Hairopoulos Becker, King County Prosecutors Office, Seattle, for Appellee/Respondent.

FAIRHURST, J.

¶ 1 After two juries convicted John Mark Clarke of two counts of second degree rape, the sentencing court imposed a maximum sentence of life imprisonment as required by statute. The sentencing court also imposed an "exceptional minimum sentence," which is a sentence in excess of the standard sentence range for the crimes charged, based on two aggravating factors. Clarke challenges the constitutionality of his exceptional minimum sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We hold that Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed and affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The King County prosecuting attorney charged the petitioner, John Mark Clarke, with one count of second degree rape for a sexual assault he committed on December 12, 2001. On February 4, 2002, Clarke failed to appear for his arraignment on that charge and that evening he committed a second sexual assault. In a second amended information, the prosecuting attorney charged Clarke with two counts of second degree rape and two other crimes not relevant here. The trial court severed the two rape counts for trial, and separate juries convicted Clarke on each count of second degree rape.

¶ 3 The sentencing court sentenced Clarke under RCW 9.94A.712, the statute governing sentencing for nonpersistent sex offenders. As required by the statute, the sentencing court imposed a maximum sentence of life imprisonment. The statute also required the sentencing court to impose a minimum sentence and authorized an exceptional minimum sentence upon a finding of certain aggravating factors. The standard range for a minimum sentence for second degree rape was 102 to 136 months. The sentencing court determined that two aggravating factors supported imposing an exceptional minimum sentence of 204 months for each count, to run concurrently. The aggravating factors found by the sentencing court were (1) that Clarke's multiple unscored prior misdemeanors resulted in a standard range sentence that was clearly too lenient, and (2) that the multiple offense policy of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, resulted in a standard range sentence that was clearly too lenient. The sentencing court determined that either aggravating factor was sufficient to support Clarke's exceptional minimum sentence.

¶ 4 Clarke appealed his exceptional minimum sentence to Division One of the Court of Appeals. In June 2004, while Clarke's appeal was pending, the United States Supreme Court decided Blakely, and the Court of Appeals requested supplemental briefing on the exceptional minimum sentence issue. The Court of Appeals held that the trial court's finding of aggravating factors in order to impose Clarke's exceptional minimum sentence did not violate the Sixth Amendment to the United States Constitution under Blakely because the exceptional minimum term did not exceed the maximum term of life imprisonment. State v. Clarke, 124 Wash.App. 893, 902, 103 P.3d 262 (2004).

¶ 5 Additionally, the court determined that even if Blakely did apply to exceptional minimum terms, Clarke's misdemeanors were not facts that a jury must find under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Clarke, 124 Wash.App. at 907, 103 P.3d 262. As a result, the court held that the "number and nature" of Clarke's prior convictions "provided substantial and compelling reasons" supporting the exceptional minimum sentence. Id. The court did not reach the issue of whether the multiple offense policy of the SRA violated Blakely.

¶ 6 Prior to Division One's decision in Clarke, Division Two of the Court of Appeals reached the opposite conclusion and held that imposing exceptional minimum sentences based on facts not found by a jury violates the Sixth Amendment under Blakely. State v. Borboa, 124 Wash.App. 779, 102 P.3d 183 (2004), review granted, 154 Wash.2d 1020, 116 P.3d 398 (2005). We accepted review to determine the applicability of Blakely to exceptional minimum sentences imposed under RCW 9.94A.712 and to resolve the conflict between the divisions of the Court of Appeals. State v. Clarke, 154 Wash.2d 1020, 116 P.3d 398 (2005). RAP 13.4(b)(2). This court heard Borboa as a companion case to Clarke.

II. ISSUES

¶ 7 A. Whether Blakely applies to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed.

¶ 8 B. If Blakely applies to exceptional minimum sentences, whether the sentencing court found aggravating factors to support an exceptional sentence in violation of the Sixth Amendment.

¶ 9 C. Whether the aggravating factors provided substantial and compelling reasons to impose an exceptional sentence.

III. ANALYSIS

A. Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed

¶ 10 The Sixth Amendment guarantees a criminal defendant the right to "a speedy and public trial, by an impartial jury." U.S. CONST. amend. VI. In Apprendi, the United States Supreme Court 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." 530 U.S. at 490, 120 S.Ct. 2348. In Blakely, the Court clarified that the relevant "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 or admitted by the defendant." 542 U.S. at 303, 124 S.Ct. 2531. In 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." Id. at 303-04, 124 S.Ct. 2531.

¶ 11 In order to violate the Sixth Amendment under Blakely, Clarke's exceptional minimum sentence must exceed the relevant statutory maximum. Clarke argues the relevant statutory maximum in his case is the high end of the standard sentence range, or in other words, his minimum sentence. The State argues that the relevant statutory maximum is the mandatory life sentence required by RCW 9.94A.712. Resolution of this issue requires this court to determine whether offenders sentenced under RCW 9.94A.712 serve a determinate sentence based on the minimum term or an indeterminate sentence based on the mandatory statutory maximum term. For reasons we explain below, we hold that RCW 9.94A.712 contemplates an indeterminate sentence.

¶ 12 We review issues of statutory construction and constitutional challenges de novo. City of Redmond v. Moore, 151 Wash.2d 664, 668, 91 P.3d 875 (2004) (citing State v. J.M., 144 Wash.2d 472, 480, 28 P.3d 720 (2001); Weden v. San Juan County, 135 Wash.2d 678, 693, 958 P.2d 273 (1998)).

1. Sentences imposed under RCW 9.94A. 712 are indeterminate

¶ 13 RCW 9.94A.712 establishes the sentencing regime for nonpersistent offenders convicted of specified sex crimes, including rape in the second degree.¹ RCW 9.94A.712(3) directs the sentencing judge to impose both a maximum term and a minimum term.² The maximum term "consist[s] of the statutory maximum sentence for the offense," which for the class A felony of rape in the second degree, is a term of life imprisonment. RCW 9.94A.712(3); RCW 9A.20.021. Therefore, the statutory maximum identified in RCW 9.94A.712(3) differs from other statutory maximums because it is mandatory, whereas most statutory maximums merely establish the outside limit of available sentences. See RCW 9A.20.021.

¶ 14 Under RCW 9.94A.712(3), the sentencing court must also impose a minimum sentence, which may be "either 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." RCW 9.94A.712(3) (reviser's note omitted). Former RCW 9.94A.535 (2003) allows courts to impose a sentence outside the standard sentencing range when there are "substantial and compelling reasons justifying an exceptional sentence" and provides a nonexclusive list of possible reasons for an exceptional sentence, commonly called aggravating factors.

¶ 15 Legislative history indicates that RCW 9.94A.712 contemplates a system of indeterminate sentencing. In 1981, the legislature adopted the SRA, which replaced Washington's former indeterminate sentencing regime with determinate sentencing. See ch. 9.94A RCW. In 2001, the legislature redesigned the determinate sentencing regime for certain sex offenders by enacting RCW 9.94A.712, which was part of an act concerned with the management of sex offenders in the community. LAWS OF 2001, 2d Spec. Sess., ch. 12, § 303. Some of the Senate Committee on Human Services & Corrections' stated reasons for enacting the sex offender management act were concerns related to determinate sentencing, including that it "does not allow the state to return a person under supervision in the community to prison beyond the end of his or her defined term." 2001 FINAL LEGISLATIVE REPORT, 57th Wash. Leg., at 233. As a result, the enactment of RCW 9.94A.712 indicates the legislature's desire to move away from determinate sentencing of sex offenders.

¶ 16 Additionally, the structure of the sentencing regime the legislature enacted provides proof that RCW 9.94A.712 contemplates indeterminate sentences. The statute governing aggravating factors states that "[a]...