State v. Hughes, No. 74147-6
| Court | United States State Supreme Court of Washington |
| Writing for the Court | FAIRHURST, J. |
| Citation | 110 P.3d 192,154 Wash.2d 118 |
| Parties | STATE of Washington, Respondent, v. Daniel D. HUGHES, Petitioner. State of Washington, Respondent, v. George Leonard Selvidge, Petitioner. State of Washington, Respondent, v. Michael Ray Anderson, Petitioner. |
| Docket Number | No. 75053-0, No. 74147-6, No. 75063-7. |
| Decision Date | 14 April 2005 |
110 P.3d 192
154 Wash.2d 118
v.
Daniel D. HUGHES, Petitioner.
State of Washington, Respondent,
v.
George Leonard Selvidge, Petitioner.
State of Washington, Respondent,
v.
Michael Ray Anderson, Petitioner
Nos. 74147-6, 75053-0, 75063-7.
Supreme Court of Washington, En Banc.
Argued November 9, 2004.
Decided April 14, 2005.
Craig Juris, Grays Harbor Prosecuting Attorneys Office, Montesano, Steven Curtis Sherman, Thurston County Prosecutors Office, Olympia, J. Andrew Toynbee, Chehalis, Jeremy Richard Randolph, Chehalis, for Respondent.
Suzanne Lee Elliott, Seattle, for Amicus Curiae Washington Association of Criminal Defense Lawyers.
Brian Martin McDonald, James Morrissey Whisman, King County Prosecutor's Office, Seattle, Amicus Curiae Washington Association of Prosecuting Attorneys.
FAIRHURST, J.
¶ 1 The United States Supreme Court recently applied its reasoning in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to hold that any fact other than that of a prior conviction, which increases the applicable punishment, must be found by a jury beyond a reasonable doubt (unless it is stipulated to by the defendant or the defendant waives his right to a jury finding). Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).1
¶ 2 These three cases were consolidated to address (1) the continuing validity of the exceptional sentence provisions of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, (2) whether the exceptional sentences at issue here violated the petitioners' Sixth Amendment jury trial rights, (3) whether Blakely Sixth Amendment violations can ever be deemed harmless, and (4) what is the proper remedy if we find Sixth Amendment violations that are not harmless.
¶ 3 We hold that the exceptional sentence provisions of the SRA are facially constitutional but that the exceptional sentences at issue violated petitioners' Sixth Amendment rights. Because we also hold that Blakely Sixth Amendment violations can never be harmless and that empanelling juries on remand for re-sentencing would usurp the legislature's authority, we remand for imposition of standard range sentences.
A. Michael Ray Anderson
¶ 4 As a result of allegations that Michael Ray Anderson sexually molested his step-daughter for several years, the Lewis County Prosecutor's Office charged Anderson with 10 counts of third degree rape of a child. Anderson subsequently pleaded guilty to one count of first degree child molestation, one count of second degree child molestation, and one count of incest, relying on the State's recommendation to sentence within the standard range.
¶ 5 Following Anderson's guilty plea, the judge ordered a presentence investigation report (PSIR). The standard range sentences for Anderson's offenses were 98-130 months for count I, 57-75 months for count II, and 46-61 months for count III. Anderson sought Special Sex Offender Sentencing Alternative (SSOSA) treatment in lieu of some of his prison sentence. In furtherance of that alternative treatment, Anderson was evaluated by a sex offender treatment provider, whose report supporting SSOSA treatment was filed with the court. But in its PSIR the Department of Corrections (DOC) recommended that Anderson not receive an alternative SSOSA sentence, and instead recommended an exceptional sentence of 240 months, with 36-48 months of community custody following release. The State opposed an alternative SSOSA sentence and recommended sentencing only within the standard range, consistent with the plea agreement.
¶ 6 The trial judge denied Anderson's request for SSOSA sentencing and imposed an exceptional sentence of 240 months for count I and the maximum of the standard range for counts II and III (75 and 61 months, respectively). To do so, the judge found facts supporting aggravating factors any one of which, concluded the judge, could have supported the sentence. Those aggravating factors were:
(1) A particularly vulnerable victim;
(2) An on-going pattern of sexual abuse;
(3) Use of a position of trust to perpetuate the offenses;
(4) An abuse of trust;
(5) An offense that involved a high degree of sophistication, planning, and grooming; and
(6) Operation of the multiple offense policy of RCW 9.94A.589 would result in a presumptive sentence that is clearly too lenient in light of the purposes of the SRA.
The conclusion of excessive leniency of the multiple offense policy was based on Anderson's multiple current convictions being counted as prior convictions, as provided in RCW 9.94A.589(1)(a).
¶ 7 Anderson appealed his conviction to Division Two of the Court of Appeals. Commissioner Ernetta Skerlec found no nonfrivolous issues for review and affirmed the conviction. The Court of Appeals subsequently denied Anderson's motion to modify the commissioner's ruling. Anderson filed a petition for review with this court. The United States Supreme Court then decided Blakely and Anderson filed a supplemental petition raising Blakely issues. This court granted Anderson's petition on the Blakely issues only and consolidated it with Selvidge and Hughes.
B. George Leonard Selvidge
¶ 8 Based on allegations that George Leonard Selvidge sexually molested his niece and her friend, the Thurston County Prosecutor's Office charged Selvidge with two counts of first degree child molestation. The trial court convicted him of each count. The standard range sentence for each count was 149 to 198 months. The trial court imposed an exceptional sentence of 222 months for each count and stated that the following aggravating circumstances warranted the sentence:
(1) Selvidge was given child care responsibilities, which constituted a position of trust, and he violated that trust;
(2) Selvidge had more than nine points from prior convictions, which would allow the current offense to have no punishment. The "current sentence range was clearly too lenient in light of the purposes of the SRA"; and
110 P.3d 198(3) "There is no reasonable possibility that the defendant will be benefited from rehabilitation."
Clerk's Papers (CP) (Selvidge) at 40. The court further specified that any one of those factors warranted the exceptional sentence imposed. Additionally, the court imposed a lifetime term of community custody, which also was exceptional.
¶ 9 Selvidge appealed his conviction to the Court of Appeals, challenging the sufficiency of the evidence and the imposition of an exceptional community custody sentence. Commissioner Eric Schmidt granted the State's motion to affirm the trial court's conviction on the merits. Division Two of the Court of Appeals subsequently denied Selvidge's motion to modify the commissioner's ruling.
¶ 10 Selvidge then filed a petition for review with this court. During that time, the United States Supreme Court decided Blakely. Like Anderson, Selvidge then moved to file a supplemental petition raising Blakely issues. This court granted that motion and subsequently granted review of the Blakely issues only and consolidated his case with Anderson and Hughes.
C. Daniel D. Hughes
¶ 11 Daniel D. Hughes was charged with first degree theft for cutting down old growth cedar trees. Hughes was found guilty of first degree theft.
¶ 12 At trial, a forest technician testified that the market value of the trees taken was $4,465. Report of Proceedings (RP) (Apr. 15, 16, 2003) at 83. However, at the sentencing hearing, a United States Forest Service ecologist testified that the actual value of the trees stolen, consisting of both monetary and ecological components, was $145,599. RP (May 23, 2003) at 13. Based on Hughes' offender score, the standard range sentence would have been three to nine months. The trial court imposed an exceptional sentence of 90 months. In support of that exceptional sentence, the court made the following relevant conclusions:
(1) The facts at issue were "sufficiently substantial and compelling to distinguish [the] crime from other theft in the first degree";
(2) The crime was a "major economic offense" because "the actual monetary loss of the victim was substantially greater than typical for Theft in the First Degree";
(3) "The harm to the environment was severe, and not considered by the Legislature in setting the standard range";
(4) The defendant's "rapid recidivism" was another aggravating factor, which also was "not considered by the Legislature in setting the standard range";
(5) The defendant's "ongoing pattern of the same criminal conduct" is another aggravating factor, "which is sufficiently substantial and compelling to distinguish this Theft in the First Degree from others in the same category."
CP (Hughes) at 22-23. The court went on to state that any one of the aggravating factors found would support the exceptional sentence of 90 months. The court also ordered restitution of $145,000. Id. at 15.
¶ 13 Hughes sought direct review by this court, challenging the sufficiency of the evidence upon which he was convicted, the amount of restitution ordered, the exceptional sentence, and that he was denied his right to allocution. This court granted direct review. Hughes subsequently filed a supplemental brief raising new assignments of error under Blakely, and his case was consolidated with Anderson and Selvidge. Because Hughes comes to us on direct review, we consider Hughes' other assignments of error in addition to the Blakely issues.
II. ISSUES
A. Blakely Issues
1. Are the exceptional sentence provisions of the SRA facially unconstitutional following Blakely?
2. If the sentence enhancement provisions...
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State v. Douglas, No. 41133–4–II.
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State v. Allen, No. 485PA04.
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State v. Williams, No. 63213-2-I.
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