State v. Lanphier
| Decision Date | 15 September 2011 |
| Docket Number | No. 28672-0-III,28672-0-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TRAVIS CHARLES LANPHIER, Appellant. |
Siddoway, J. — Travis Lanphier, originally convicted and sentenced in 1997, appeals the trial court's entry of a revised judgment and sentence following a remand by the Supreme Court for correction of his offender score. He argues that the trial court and this court enjoy discretion to correct other alleged errors in his sentence in light of the Supreme Court's remand and that the trial court erred in failing to recognize its discretion. We agree that the trial court had the authority to consider a mitigated exceptional sentence following the Supreme Court's remand and erred in concluding otherwise. We decline to exercise our discretion under RAP 2.5(c)(2) to revisit this court's earlier decision on a firearm enhancement issue where Mr. Lanphier may seek toraise the challenge to his sentence by a further personal restraint petition. We reverse in part and remand for further proceedings.
Travis Lanphier was tried in 1997 as an accomplice on six counts of first degree assault. Events leading to the assault began at a Spokane restaurant, where several of Mr. Lanphier's acquaintances fought with another group of customers. Mr. Lanphier was not there. When Mr. Lanphier's acquaintances left the restaurant, they went to his home. Mr. Lanphier listened to them recount how they were accosted and agreed to drive Robert Esparza, one of the alleged victims, back to the restaurant.
Outside the restaurant, Mr. Esparza recognized individuals involved in the fight. As Mr. Lanphier's car approached them, Mr. Esparza, sitting in the front passenger seat, grabbed Mr. Lanphier's handgun from the front console and began firing, injuring six people. Mr. Lanphier sped away after the shots were fired.
At trial, the State contended that the assault was planned at Mr. Lanphier's home and that he was complicit. Mr. Lanphier denied that he was a knowing participant; refused an offer that he plea to a sentence of 15 years; and, while stipulating to other facts constituting the crime of accomplice to first degree assault, denied any intent. He testified that he carried his handgun, for which he had a concealed weapon permit, onlyfor self-defense. He testified that he was taken completely by surprise when Mr. Esparza reached for his gun and committed the assault. The jury rejected his defense and convicted Mr. Lanphier on all counts.
Mr. Lanphier had no prior criminal history. With firearm enhancements added, his sentence to total confinement for the six assaults, with all running consecutively, amounted to over 88 years. Mr. Esparza, the principal to the assault, had accepted the State's offer of a plea and was sentenced to approximately 22 years.
The firearm enhancements were based on an amended information charging that the assault was committed "with a firearm or deadly weapon, to-wit: a handgun" and that referred to former RCW 9.94A.125 (1983) and former RCW 9.94A.310(3) (1996), both of which dealt with firearm enhancements. Clerk's Papers (CP) at 28-29. The State sought a deadly weapon enhancement for each count; the only deadly weapon alleged to have been used in the crime was a firearm. The jury's instruction on the special verdict required for the enhancement informed the jury that it must find that the defendant or another participant in the assault was armed with a deadly weapon at the time of the crimes. They also instructed that a pistol, revolver, or other firearm, whether loaded or unloaded, is a deadly weapon. CP at 21. The finding required by the special verdict forms was of use of a "deadly weapon." Order Transferring Case to Court of Appeals, In re Pers. Restraint of Lanphier, No. 96-1-01561-1, Apps. 8-13 (Spokane County Super.Ct., Wash. Sept. 12, 2008) (Court of Appeals Cause 27412-8-III).
The jury answered all of the special verdict forms affirmatively. The judgment and sentence stated that "[a] special verdict/finding for use of a firearm was returned" on the six counts, again citing former RCW 9.94A.125 and former RCW 9.94A.310. Clerk's Papers (CP) at 30. In arriving at the 88-year sentence, the trial court added a 5-year firearm enhancement to the sentence for each count.
Mr. Lanphier was sentenced on the basis of an offender score of 10 for one of the counts of first degree assault despite having no prior criminal record. The use of a score of 10 rather than zero increased the standard range for that count by over 12 years.
Mr. Lanphier appealed the judgment and sentence, which was affirmed by this court. Our decision was filed on June 17, 1999 and became final on July 31, 1999.
The case is before us at this time as a result of Mr. Lanphier's fifth collateral attack on his judgment and sentence. His fifth personal restraint petition (PRP), filed in September 2008, complained of error in calculating his offender score and that the trial court erroneously believed it lacked discretion under former RCW 9.94A.400(1)(b) (1996) to grant concurrent sentences for the six serious violent offenses. Given Mr. Lanphier's failure to provide the required certification for this successive petition, we lacked jurisdiction to consider it under RCW 10.73.140 and transferred it to the Supreme Court, to which RCW 10.73.140 does not apply. In transferring the petition to theSupreme Court, we called out the offender score issue as possibly having merit.
The Supreme Court granted the PRP "only on the offender score issue" and "remanded to the Spokane County Superior Court for resentencing with a correct offender score." CP at 81.
At the resentencing hearing on November 13, 2009, there was extensive discussion of the scope of the trial court's discretion on remand. Mr. Lanphier's counsel maintained that the trial court had the authority and duty to correct not only his offender score, but all errors in his sentence. Report of Proceedings (RP) at 4.
The trial court concluded that because the PRP resulting in remand had challenged Mr. Lanphier's sentence based on the court's alleged error as to its discretion to grant concurrent sentences, the Supreme Court's order granting the petition only on the offender score issue implicitly denied the trial court authority to otherwise revisit his sentence. RP at 6. The trial court stated that "clearly were it in this Court's authority, legal authority, I may take another look at the discretion of lining up all of the counts, all of the enhancements[,] but I don't have that." RP at 16-17.
The trial court corrected the offender score, dropping Mr. Lanphier's sentence from 1,065 months to 918 months, or approximately 77 years. RP at 17. Mr. Lanphier appealed.
and Issues Raised on Appeal Deadly weapon versus firearm enhancement. Prior to 1995, an offender faced an additional penalty of up to two years for use of a deadly weapon in committing certain crimes. The definition of "deadly weapon" included a firearm. Former RCW 9.94A.125; former RCW 9.94A.310(3) (1994). For the deadly weapon enhancement to be imposed, the State was required to provide a defendant with notice of its intent to seek the enhancement and the fact finder to specifically find (in the case of a jury, by special verdict) that the crime was committed with a deadly weapon. Former RCW 9.94A.125.
In 1995, penalties for use of a firearm were increased to up to five years by the Hard Time for Armed Crime Act, Laws of 1995, ch. 129 (Initiative Measure No. 159). The act provided an up-to-two-year enhancement for use of a deadly weapon other than a firearm. The charging notice and special verdict requirements of former RCW 9.94A.125 remained unchanged. Given this state of the applicable statutes and instructions in use at the time, Mr. Lanphier proved to be one of a number of defendants who was sentenced to a five-year firearm enhancement based on a jury's finding that a "deadly weapon" was used in committing the crime.
In State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005) (Recuenco I), rev'd, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Recuenco II), the Washington Supreme Court held that imposing the higher firearm enhancement on the basis of a jury'sfinding only use of a deadly weapon violated a defendant's Sixth Amendment rights identified in Apprendi and Blakely.1 In Washington v. Recuenco, 163 Wn.2d 428, 440-42, 180 P.3d 1276 (2008) (Recuenco III), it held that for purposes of article I, section 21 of the Washington Constitution, harmless error analysis did not apply to the violation. The decision relied at least in part on the fact that the State had not charged Recuenco with crimes or introduced evidence consistent with the use of a firearm. Id. at 440-41; and see State v. Williams-Walker, 167 Wn.2d 889, 912, 225 P.3d 913 (2010) (Fairhurst, J., dissenting). In 2010, a majority of the Washington Supreme Court held in Williams-Walker that a defendant need not demonstrate a charging error for the Blakely/Recuenco "never harmless error" result to apply and that the sentencing enhancement is always strictly limited by a finding reflected in the special verdict, even if a finding of use of a firearm is implicit in the underlying guilty verdict. 167 Wn.2d at 900; In re Pers. Restraint of Cruze, 169 Wn.2d 422, 433, 237 P.3d 274 (2010).
Our Supreme Court has held that Blakely does not apply retroactively. State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627, cert. denied, 546 U.S. 983 (2005). Mr. Lanphier nonetheless argues that with the decisions in Recuenco III and Williams-Walker it is now clear that any enhancement of his sentence must be strictly limited by the"deadly weapon" finding in the special verdicts returned at his trial. In In re Personal Restraint of Scott, 149 Wn. App. 213, 220, 202 P.3d 985 (2009), review granted, 168 Wn.2d 1010 (2010), Division...
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