State v. McNell
| Decision Date | 23 January 2008 |
| Docket Number | No. 35423-3-II.,35423-3-II. |
| Citation | 175 P.3d 1139,142 Wn. App. 777 |
| Parties | STATE of Washington, Respondent, v. John Kevin McNEAL, Appellant. |
| Court | Washington Court of Appeals |
Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Appellant.
Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Chehalis, WA, for Respondent.
¶ 1 John Kevin McNeal appeals his resentencing on remand for vehicular assault, vehicular homicide, and possession of a controlled substance with intent to deliver.1 He argues that the resentencing court erred when it (1) applied RCW 69.50.408, which allowed it "to double"2 the statutory maximum for his drug offense; (2) concluded that Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), did not apply on remand; and (3) imposed exceptional sentences based on judicial factual findings rather than on factual findings by a jury. He asks us to order the trial court, to resentence him again, this time within the standard ranges for his convicted offenses.
¶ 2 The State concedes that the trial court erred when it determined that Blakely did not apply on remand and when it, rather than a jury, made the factual findings supporting McNeal's exceptional sentences. But the State argues that (1) .the sentencing court properly applied the "doubling provision" of RCW 69.50.408; and (2) the Legislature's 2007 amendments to RCW 9.94A.537, effective April 27, 2007, authorized the trial court to empanel a sentencing jury to determine if any aggravating factors exist.
¶ 3 We hold the trial court did not err when it applied the "doubling provision," which required that the trial court find only the fact of a prior conviction. But, unlike the facts in our recent decision in State v. Kilgore, ___ Wash.App. ___, 172 P.3d 373 filed November 27, 2007, our prior remand order here vacated McNeal's original sentence and remanded expressly for resentencing. Thus, we accept the State's concession of error on the Blakely issue and hold that the trial court erred in failing to apply Blakely at resentencing and in making factual findings to support the exceptional sentences. Accordingly, we vacate. McNeal's sentence, and we remand again for resentencing under Blakely. Under the 2007 amendments to RCW 9.94A.537, the trial court may empanel a jury to make the necessary factual findings to support any potential exceptional sentence.
¶ 4 On July 5, 1996, John McNeal caused a head-on accident that killed the passenger and injured the driver of the other car. State v. McNeal, 98 Wash.App. 585, 588-89, 991 P.2d 649 (1999), aff'd, 145 Wash.2d 352, 37 P.3d 280 (2002). Police officers found drugs, drug paraphernalia, and a large amount of cash on McNeal's person and among his belongings. McNeal, 98 Wash. App. at 589, 991 P.2d 649. A jury convicted McNeal of vehicular homicide, vehicular assault, and possession of a controlled substance with intent to deliver. McNeal, 98 Wash.App. at 590, 991 P.2d 649.
¶ 5 The sentencing court (1) imposed high-end standard range sentences of 116 months for the vehicular homicide and 84 months for the vehicular assault; (2) doubled the statutory maximum for the drug conviction under RCW 69.50.4083 and imposed an exceptional 240-month sentence on that count;4 and (3) imposed an exceptional sentence under former RCW 9.94A.400(1)(a) (1996)5 by running the sentences consecutively.6
¶ 6 McNeal appealed his vehicular assault and vehicular homicide convictions and exceptional sentences, McNeal, 98 Wash.App. at 588, 597-600, 991 P.2d 649. We affirmed. McNeal, 98 Wash.App. at 600, 991 P.2d 649. Our Supreme Court affirmed McNeal's convictions, but it did not address any sentencing issues. State v. McNeal, 145 Wash.2d 352, 356, 363, 37 P.3d 280 (2002). The case was mandated on January 30, 2002.
¶ 7 In September 2005, McNeal filed a personal restraint petition (PRP). In October 2005, he filed a supplemental brief raising several additional issues, including whether he had proper notice of the doubling statute, whether his offender score had been properly calculated, and whether the trial court lacked the authority to impose an exceptional sentence.
¶ 8 On June 9, 2006, we granted relief on McNeal's original petition. We ruled that although his drug offense sentence was with in the statutory maximum of 240 months, the additional 12 months of community placement resulted in a sentence that exceeded the statutory maximum. Thus, we "vacated" and remanded McNeal's sentence for his drug conviction; we left his sentences for the other counts intact.
¶ 9 Although we did not consider McNeal's supplemental briefing, we noted:
Because petitioner needs to be resentenced and because the sentencing court is in a better position to consider these issues on the merits as they may affect the ultimate sentence imposed, petitioner may raise them below.
Clerk's Papers (CP) at 80 (Order Granting Petition at 2 (No. 33894-7-II)).7
¶ 10 At the September 29, 2006 resentencing hearing on remand, the trial court addressed both the excessive sentence and the issues McNeal had raised in his supplemental PRP brief. The trial court ruled that (1) RCW 69.50.408 did not create a sentencing enhancement and, therefore, did not have to be set forth in the charging information; (2) because McNeal did not plead guilty, he was not entitled to notice of the doubling aspect of RCW 69.50.408; (3) Blakely did not apply because McNeal's case was final before the Supreme Court issued Blakely in 2004; and (4) one of McNeal's prior convictions had "washed out"8 of his offender score, resulting in new offender scores of 10 for the vehicular homicide and vehicular assault and 14 for the drug offense.
¶ 11 The trial court also adopted the previous court's findings of fact and conclusions of law supporting the exceptional sentences, which it reimposed, including running the sentences consecutively.9
¶ 12 McNeal appeals his resentencing. Because McNeal raised a new issue in his reply brief, we allowed the State to file a responsive brief to address this new issue.
¶ 13 McNeal first argues that the trial court violated his due process right to notice under Article 1, § 22 of the Washington State Constitution and the Sixth Amendment to the Federal Constitution, as interpreted under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely,10 because the State's charging information failed to "allege the existence of the condition precedent to the application" of the RCW 69.50.408(1) sentencing-doubling provision, namely his prior qualifying drug offenses.11 We disagree.
¶ 14 The charging document need include only the essential elements of the charged crime. State v. Goodman, 150 Wash.2d 774, 784, 83 P.3d 410 (2004); State v. Kjorsvik, 117 Wash.2d 93, 101, 812 P.2d 86 (1991). Both Apprendi and Blakely provided,
Other 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.
Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added). Accordingly, neither Apprendi nor Blakely required the State to allege prior convictions used to support and increased McNeal's penalty. Nor did these cases preclude the trial court from finding that the prior convictions existed. Thus, McNeal's argument fails.
¶ 15 We hold, therefore, that the lack of a "doubling provision" related allegation in the information did not violate McNeal's due process right to notice of the charges against
¶ 16 McNeal next argues that the sentencing court erred when it ruled that Blakely did not apply on resentencing. The State concedes that this was error, and we agree.
¶ 17 In In re Personal Restraint of Skylstad, our Supreme Court recently explained that a conviction is "final" for PRP time-bar purposes only if both the conviction and the sentence are final. 160 Wash.2d 944, 949-50, 162 P.3d 413 (2007).12 Once we vacated McNeal's original sentence, there was no longer a final sentence,13 the case was no longer final, and the trial court, therefore, erred when it found that Blakely did not apply to McNeal's resentencing on remand.14
¶ 18 Having held that Blakely applied to McNeal's resentencing, we next determine whether the trial court properly imposed an exceptional sentence above the standard range for McNeal's drug conviction, his second such offense,15 and exceptional consecutive sentences under RCW 9.94A.589(1)(a). We hold that the trial court erred.
¶ 19 In In re Personal Restraint of VanDelft, our Supreme Court held that a jury, rather than the sentencing court, must find the exceptional sentencing factors supporting the imposition of consecutive sentences under RCW 9.94A.589(1)(a). 158 Wash.2d 731, 743-44, 147 P.3d 573 (2006) cert. denied, ___ U.S. ___, 127 S.Ct. 2876, 167 L.Ed.2d 1172 (2007). Additionally, under State v. Ose, 156 Wash.2d 140, 149, 124 P.3d 635 (2005), and State v. Hughes, 154 Wash.2d 118, 133-37, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), a jury must, find facts supporting an exceptional sentence beyond the standard range. On remand, a specially-empanelled jury can consider such facts, including those the trial court used to justify the exceptional sentence for McNeal's current drug offense.16
¶ 20 Because Blakely applied to McNeal's resentencing proceedings, we hold that the trial court erred when it, rather than a jury, made the factual determinations required to impose the exceptional sentences.17 Accordingly, we again vacate McNeal's sentences and remand for resentencing.18
¶ 21 We...
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