State v. Davis

• Decision Date: 22 May 2008
• Docket Number: No. 79068-0.,79068-0.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Anthony D. DAVIS, Petitioner.

184 P.3d 639

163 Wash.2d 606

STATE of Washington, Respondent, v. Anthony D. DAVIS, Petitioner.

No. 79068-0.

Supreme Court of Washington, En Banc.

Argued October 9, 2007.

Decided May 22, 2008.

David L. Donnan, Washington Appellate Project, Seattle, WA, for Petitioner.

Steven J. Tucker, Attorney at Law, Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

MADSEN, J.

¶ 1 Shortly after the United States Supreme Court issued Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Anthony Davis was tried and convicted of multiple offenses arising from a domestic dispute involving Bobbi Dewey and her daughter, T.D.B. The State alleged the crimes against T.D.B. were aggravated by her "particular vulnerability." Under then-applicable provisions of chapter 9.94A RCW, the Sentencing Reform Act of 1981(SRA), the trial court was required to find the existence of that statutory aggravating factor. In view of Blakely, however, the trial court submitted the aggravating factor to the jury by special interrogatory rather than make the factual determination itself. Based on the jury's response to the special interrogatory, the trial court imposed an exceptional sentence. The Court of Appeals affirmed. State v. Davis, 133 Wash.App. 415, 138 P.3d 132 (2006).

¶ 2 We hold the jury's response to the special interrogatory is void and cannot support Davis's exceptional sentence because the trial court exceeded its authority by delegating its fact-finding duty to the jury. Trial courts may not deviate from the legislatively prescribed exceptional sentencing procedures, whether at trial or on remand. Thus, we vacate Davis's exceptional sentence and remand for resentencing.

FACTS

¶ 3 By amended information, the State charged Davis with two counts each of second degree assault and unlawful imprisonment (against Dewey and T.D.B.), and one count each of harassment, third degree malicious mischief, and violation of a domestic violence criminal protection order. Clerk's Papers (CP) at 2-3. The State alleged the assault and unlawful imprisonment offenses against T.D.B. were aggravated by her particular vulnerability, "as provided by RCW 9.94A.535(2)(b)."¹ CP at 2-3.

¶ 4 The jury found Davis guilty of harassment, malicious mischief, violation of a protection order, the lesser-included offenses of fourth degree assault, and unlawful imprisonment of T.D.B.²

¶ 5 By special interrogatory, the jury found that when Davis unlawfully imprisoned T.D.B., he knew or should have known "the victim was particularly vulnerable and incapable of resistance due to extreme youth." CP at 55.

¶ 6 Based on the jury's response to the special interrogatory, the court imposed an exceptional sentence of 12 months on the unlawful imprisonment conviction or four months above the maximum standard range sentence for that offense. The court imposed a 365-day suspended sentence for each of the gross misdemeanor offenses, consecutive to the felony offenses, for a total term of 24 months. CP at 70.

¶ 7 On appeal, Davis argued the trial court impermissibly altered the sentencing procedures of the SRA by submitting the special interrogatory to the jury.³ The Court of Appeals disagreed. The court held a trial court could submit aggravating factors to a jury during the guilt phase of a trial even though, following State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005), it lacked authority to impanel a special sentencing jury for that purpose on remand. Davis, 133 Wash.App. 415, 138 P.3d 132.

¶ 8 This court granted Davis's petition for discretionary review on the exceptional sentence issue. State v. Davis, 159 Wash.2d 1019, 157 P.3d 404 (2007).

ANALYSIS

¶ 9 On June 24, 2004, the United States Supreme Court issued its decision in Blakely. Blakely rendered the mechanism for imposing an exceptional sentence under the SRA unconstitutional in certain applications. The legislature responded to Blakely by enacting Laws of 2005, chapter 68 (2005 amendment), which became effective on April 15, 2005. The 2005 amendment provides a valid procedure whereby juries may be charged with making findings in support of an exceptional sentence. State v. Pillatos, 159 Wash.2d 459, 473, 150 P.3d 1130 (2007). However, the 2005 amendment expressly provides the statute applies only to cases where trial has not yet begun, or a guilty plea accepted, on its effective date. Id. at 474, 150 P.3d 1130. Davis was tried in January 2005, several months before the effective date of the 2005 amendment, so the statute does not apply to him.

¶ 10 In both Pillatos and Hughes, we rejected the argument that a trial court could deviate from legislatively prescribed exceptional sentencing procedures during the period between Blakely and the effective date of the 2005 amendment. Before the legislature enacted the 2005 amendment, this court held that trial courts could not impanel sentencing juries, on remand, to find the facts necessary to support an exceptional sentence, because the SRA "explicitly directs the trial court to make the necessary factual findings and does not include any provision allowing a jury to make those determinations during trial, during a separate sentencing phase, or on remand." Hughes, 154 Wash.2d at 149, 110 P.3d 192 (emphasis added). Following the enactment of the 2005 amendment, we concluded, consistently with Hughes, that trial courts lack authority during trial to submit special interrogatories to juries in deviation from the SRA's exceptional sentence procedures. Pillatos, 159 Wash.2d at 474, 150 P.3d 1130.

¶ 11 The State attempts to distinguish Pillatos on the ground it addresses only the court's authority to impanel a sentencing jury, not a court's authority to submit a special interrogatory to a guilt-phase jury.

¶ 12 Pillatos cannot be read so narrowly. Indeed, we accepted review in Pillatos to address whether juries could be asked to find statutory aggravating factors during trial or at sentencing. Following the enactment of the 2005 amendment, this court expanded review to include the validity and applicability of that legislation.

¶ 13 Pillatos involved the consolidated appeals of four defendants. Two of the defendants were not yet sentenced while two were not yet convicted, including James Metcalf. The State charged Metcalf with second degree murder. Following Blakely, the State amended the information to add the statutory aggravating factors of "deliberate cruelty" and the victim's "particular vulnerability." Pillatos, 159 Wash.2d at 467, 150 P.3d 1130. The trial court denied the motion, concluding it lacked the authority to submit those factors to the jury. This court affirmed the trial court's decision. Id. at 480, 150 P.3d 1130. Thus, in Pillatos, we rejected the use of special interrogatories during the guilt phase of the trial, in deviation from applicable exceptional sentence procedures.

¶ 14 The Court of Appeals, which did not have the benefit of Pillatos when it decided this case, agreed with the State that "Hughes is inapplicable" because it dealt only with a trial court's authority "on remand," while expressly reserving the question "`whether juries may be given special verdict forms or interrogatories to determine aggravating factors at trial.'" Davis, 133 Wash.App. at 427, 138 P.3d 132 (quoting Hughes, 154 Wash.2d at 149, 110 P.3d 192). The Court of Appeals reasoned that RCW 2.28.150 and CrR 6.16(b) supplied the necessary authority. Davis, 133 Wash.App. at 427, 138 P.3d 132.

¶ 15 RCW 2.28.150 provides that "if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws." The Court of Appeals appears to have reasoned that an unconstitutional statute is not a "statute" within the meaning of RCW 2.28.150. Davis, 133 Wash.App. at 427, 138 P.3d 132. Thus, following Blakely, there was no longer a procedure "`specifically pointed out by statute'" for finding facts in support of an exceptional sentence. Id. (quoting RCW 2.28.150).

¶ 16 CrR 6.16(b) authorizes a trial court to submit special interrogatories to juries to make special findings "which may be required or authorized by law." The Court of Appeals agreed with the State that the use of special interrogatories to find aggravating factors was "required" by law, following Blakely. Davis, 133 Wash.App. at 428, 138 P.3d 132.

¶ 17 Division One of the Court of Appeals applied the same reasoning in State v. Harris, 123 Wash.App. 906, 922-26, 99 P.3d 902 (2004), overruled by Hughes, 154 Wash.2d 118, 110 P.3d 192, in the context of deciding whether trial courts could impanel special sentencing juries to find statutory aggravating factors. Harris was one of the first published cases following Blakely to provide guidance to lower courts pending a legislative solution. In Harris, the court sanctioned the use of special sentencing juries to conform exceptional sentencing procedures to constitutional requirements. In the court's view, the unconstitutional provisions in the SRA, requiring judicial fact-finding of aggravating factors according to a preponderance of the evidence standard of proof, were severable from the rest of the exceptional sentencing scheme. Once severed, trial courts had authority under RCW 2.28.150 and CrR 6.16(b) to supply procedures necessary to correct the constitutional deficiencies identified in Blakely. Harris, 123 Wash.App. at 923-25, 99 P.3d 902.

¶ 18 This court overruled Harris in Hughes, stating:

[W]e disagree with that conclusion as well as the court's reasoning supporting it—that because there is nothing in the statute to prohibit the procedure and because trial courts have some inherent authority to imply procedures where they are absent, that we could do so here in the face of legislative intent to the contrary. We reach the opposite conclusion.

Hughes, 154 Wash.2d at 152 n. 16, 110 P.3d 192.

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