State v. Jones

• Decision Date: 28 December 2006
• Docket Number: No. 76900-1.,76900-1.
• Citation: 159 Wn.2d 231,149 P.3d 636
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Darrell Gregory JONES, Respondent. State of Washington, Petitioner, v. Reginald Thomas, Respondent.

Page 636

149 P.3d 636

159 Wn.2d 231

STATE of Washington, Petitioner, v. Darrell Gregory JONES, Respondent.

State of Washington, Petitioner, v. Reginald Thomas, Respondent.

No. 76900-1.

Supreme Court of Washington, En Banc.

Argued February 7, 2006.

Decided December 28, 2006.

Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, for Petitioner.

Jason Brett Saunders, Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Respondent.

Kevin Michael Korsmo, Attorney at Law, Spokane, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorney.

ALEXANDER, C.J.

¶ 1 A jury found Darrell Jones guilty of possession of cocaine. At a separate trial, another jury found Reginald Thomas guilty of assault in the second degree. In each case, the sentencing court determined that the defendant before it was under community placement at the time of the offense for which he was being sentenced. Pursuant to former RCW 9.94A.525(17) (2002),¹ the respective sentencing courts added one point to the defendant's offender score. Each defendant appealed to Division One of the Court of Appeals, and the appeals were consolidated. That court reversed the trial courts, holding that under Blakely v. Washington² and Apprendi v. New Jersey,³ the jury, rather than the sentencing judge, must find that the defendant was on community placement before the sentencing judge may add a point to the offender score. We granted review and conclude that because community custody is directly related to and follows from the fact of a prior conviction and that the attendant factual determinations involve nothing more than a review of the nature of the defendant's criminal history and the defendant's offender characteristics, such a determination is properly made by the sentencing judge. Therefore, we reverse the Court of Appeals and uphold the sentences imposed on Jones and Thomas.

I STATE v. JONES

¶ 2 Darrell Jones was charged with one count of unlawful possession of cocaine in violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. Following a jury trial, Jones was convicted. At his sentencing hearing, the trial court calculated Jones's offender score as 7 based upon his four prior adult felony convictions, four prior juvenile felony convictions, and because Jones was on community placement at the time he committed the present offense. Jones's Verbatim Report of Proceedings at 3 (Oct. 10, 2003). Jones disputed that he was on community placement, notwithstanding his admission that he reported to his community corrections officer (CCO) shortly before the current offense occurred. The sentencing judge concluded by a preponderance of the evidence that Jones was on community placement at the time he committed the crime of possession of cocaine.

¶ 3 Jones's standard range sentence, based on an offender score of 7, was 22 to 29 months in custody. Absent the community placement determination, Jones's standard range sentence would have been 17 to 22 months. The sentencing court ultimately imposed a drug offender sentencing alternative of 12.75 months of incarceration and 12.75 months of community custody.

STATE v. THOMAS

¶ 4 Reginald Thomas was found guilty by a jury of assault in the second degree. At sentencing, the trial court judge calculated Thomas's offender score as 8 based upon his seven previous felony convictions and because he was on community placement at the time of the current assault offense. Thomas's Verbatim Report of Proceedings at 2 (Feb. 13, 2004). Thomas did not object to the sentencing court's calculation of his offender score.⁴

¶ 5 Based upon the offender score of 8, Thomas's standard range sentence was 53 to 70 months. Without the community placement determination, his standard range sentence would have been 43 to 57 months. The sentencing court imposed a sentence of 60 months of incarceration and 18 to 36 months of community custody. Clerk's Papers at 65, 67-68.

II

¶ 6 Jones and Thomas each appealed his sentence to the Court of Appeals, Division One, and their appeals were consolidated. They argued there that the respective sentencing judges violated their Sixth Amendment right to a jury trial when the judges, rather than a jury, determined that they were on community placement at the time of the present crime and used that determination to increase their standard range sentence. The Court of Appeals reversed, concluding that a defendant's status on community placement at the time of the current offense is a fact that must, under decisions of the United States Supreme Court in Apprendi and Blakely, be found by a jury beyond a reasonable doubt. In reaching its decision, the court read the prior conviction exception narrowly and rejected the State's argument that the question of whether one convicted of a crime is on community placement at the time of the current offense is a determination that falls within the prior conviction exception set forth in Apprendi and Almendarez-Torres v. United States.⁵ State v. Jones, 126 Wash.App. 136, 107 P.3d 755 (2005).

¶ 7 The State petitioned our court for review, and we granted its petition. State v. Jones, 155 Wash.2d 1017, 124 P.3d 659 (2005). We also granted Jones's and Thomas's cross petition for review to address their contention that double jeopardy principles prevented the State from proving their community placement status to a jury on remand should we find constitutional error.⁶ We did, however, deny Jones's request that we review the trial court's denial of his motion to suppress.

III

¶ 8 Under this State's determinant sentencing scheme, once a defendant has been convicted of a felony, the sentencing judge determines the defendant's standard range sentence based on the seriousness level of the current offense and the defendant's offender score. RCW 9.94A.530(1), .510. The defendant's offender score is determined by his or her other convictions, with the scoring of those prior convictions dependent upon the nature of the current offense. RCW 9.94A.525. One criterion used by a sentencing court to calculate the offender score is found in former RCW 9.94A.525(17). It provides that one point shall be added to the defendant's offender score "[i]f the present conviction is for an offense committed while the offender was under community placement." The term "community placement" is defined as the "period during which the offender is subject to the conditions of community custody and/or postrelease supervision." RCW 9.94A.030(7).

¶ 9 The primary question presented to us is whether a defendant has a right under the United States Constitution to have the jury that determined his guilt, rather than the sentencing judge, decide whether he was on community placement at the time he committed his current crime. This is an issue of first impression in Washington. Like all constitutional challenges, we review it de novo. State v. Cubias, 155 Wash.2d 549, 552, 120 P.3d 929 (2005) (citing State v. Bradshaw, 152 Wash.2d 528, 531, 98 P.3d 1190 (2004)).

¶ 10 Jones and Thomas rely on the decisions of the United States Supreme Court in Apprendi and Blakely as support for the contention that it is the jury, rather than the sentencing judge, that must examine the documents outlining their criminal history to determine whether they were on community placement for a prior offense at the time they committed the current offenses. They contend additionally that this determination, though "related" to a prior conviction, does not fall within the Almendarez-Torres prior conviction exception to the jury trial requirement.

¶ 11 The Court of Appeals agreed with Jones and Thomas that under the Sixth Amendment to the United States Constitution the jury is to make the community placement determination. Jones, 126 Wash.App. at 144, 107 P.3d 755. In reaching this conclusion, the Court of Appeals recognized that both Blakely (crime committed with deliberate cruelty) and Apprendi (crime committed with a racial hatred motivation) involved statutes that authorized the trial judge to increase punishment on the basis of a factual circumstance related to the current offense (as opposed to imposing increased punishment based upon facts related to the defendant's recidivism, as is the case here). The court further recognized that the United States Supreme Court had been careful to preserve the prior conviction exception it articulated in Almendarez-Torres. Despite these acknowledgments, the Court of Appeals held that the prior conviction exception is limited to exempting from the reach of Apprendi and Blakely only the basic fact of a prior conviction and does not extend to cover the review and determination of the defendant's community custody status. It concluded also that the question of whether the defendant is under community supervision at the time of the current offense is excluded from the prior conviction exception because that determination cannot be determined from the fact of a prior conviction as "[t]oo many variables are involved." Id. at 143, 107 P.3d 755.

¶ 12 The State challenges what it claims is the Court of Appeals' narrow reading of Almendarez-Torres, asserting that, as demonstrated by the decisions in Apprendi, Blakely, and, most recently, United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the United States Supreme Court continues to recognize the prior conviction exception and that a full consideration of the history and reasoning behind the exception reveals that it is not limited to the mere fact of the prior conviction. Suppl. Br. of Pet'r at 7. The State argues that the prior conviction exception broadly encompasses determinations flowing from the fact of a prior conviction, such as whether the defendant was still under supervision at the time of his current crime. Id. at 5. Furthermore, the State asserts that a defendant's status on community placement is a recidivist fact question and, as such, is the type...