State v. Pillatos

Decision Date25 January 2007
Docket NumberNo. 75984-7.,No. 76077-2.,No. 76081-1.,No. 75989-8.,75984-7.,75989-8.,76081-1.,76077-2.
Citation150 P.3d 1130,159 Wn.2d 459
PartiesSTATE of Washington, Petitioner, v. David Nikos PILLATOS, Respondent. State of Washington, Petitioner, v. Scotty James Butters, Respondent. State of Washington, Respondent, v. Daniel William Base, Petitioner. State of Washington, Petitioner, v. James Carl Metcalf, Respondent.
CourtWashington Supreme Court

Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., John Michael Sheeran, Attorney at Law, Tacoma, WA, Kevin Korsmo, Spokane Co. Prosecutor's Office, Spokane, Ralph Hall, NW Defenders Ass'n, Seattle, for Petitioners.

Philip Edward Thornton, Attorney at Law, Keith Alexander Mac Fie, Attorney At Law, Tacoma, WA, Ivan Orton, King Co. Prosecutor's Office, Sheryl Gordon McCloud, Attorney at Law, Seattle, WA, Steven Reich, Spokane County Public Defender, David Gasch, Attorney at Law, Spokane, for Respondents.

ALEXANDER, C.J.

¶ 1 We originally took review of these cases to decide whether, in the wake of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), juries in Washington could be asked to find facts that might justify an upwards departure from standard-range sentences. Shortly after the initial oral argument, the Washington State Legislature amended the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, to explicitly give juries this responsibility. LAWS of 2005, ch. 68.1 We permitted additional argument and briefing to aid us in determining whether this new act applies to any of these cases.

¶ 2 We hold that Laws of 2005, chapter 68 applies to all sentencing proceedings held since it was signed into law by Governor Gregoire on April 15, 2005. Thus, the State may seek exceptional sentences against Base and Metcalf, whether they ultimately plead guilty or go to trial. However, since Butters and Pillatos had each pleaded guilty prior to the effective date of the new statute, the procedures set forth in that statute do not apply to them. We hold, additionally, that we lack the power to fashion a remedy to empanel juries. Accordingly, the State may not seek exceptional sentences against Butters and Pillatos.2

I

¶ 3 PILLATOS & BUTTERS. David Nikos Pillatos and Scotty James Butters each pleaded guilty to first degree murder and are awaiting sentencing. According to charging documents, on March 23, 2003, along with two acquaintances, Butters and Pillatos attacked Randall Townsend near Wright Park in Tacoma. Collectively, they savagely beat Townsend and left him for dead on train tracks. Despite quickly summoned medical assistance, Townsend died in Harborview Hospital about two weeks later.

¶ 4 The Pierce County prosecutor charged Butters and Pillatos with aggravated first degree murder and, apparently, considered seeking the death penalty. After significant negotiations, Pillatos and Butters both pleaded guilty to an amended charge of first degree murder. During negotiations leading to the pleas, the parties agreed that the State could seek exceptional sentences, and the plea agreement was reached with that understanding.3 Before accepting their pleas, a superior court judge confirmed that each man understood that the maximum sentence they could receive, if an exceptional sentence was imposed, was life in prison.

¶ 5 After the pleas were accepted, but before sentencing, the United States Supreme Court published its watershed Blakely opinion. See Blakely, 542 U.S. 296, 124 S.Ct. 2531. Under Blakely, the State must prove to the trier of fact, beyond a reasonable doubt, facts supporting an exceptional sentence. Id. at 313, 124 S.Ct. 2531. Consequently, the State moved to empanel a sentencing jury. The defendants opposed the motion.

¶ 6 The primary argument that Butters and Pillatos presented was that after Blakely, facts supporting exceptional sentences must be set forth in the information. Since they had already pleaded guilty, they averred amendment of the information was inappropriate. They also argued that the trial court lacked the power to empanel a sentencing jury. The sentencing judge agreed that she did not have the power to create procedures to bring the SRA into conformity with Blakely. The State sought discretionary review of that decision and we granted review.

¶ 7 BASE. Daniel William Base operated a magazine subscription business. He was investigated for financial improprieties related to that business. Base eventually entered into an agreement with the Washington State attorney general in which he agreed to refund wrongfully collected payments to tens of thousands of customers. Some time later, finding Base's remedial steps inadequate, the King County prosecutor charged Base with one count of first degree theft, alleging that Base improperly collected or handled money from more than 50,000 victims. The prosecutor informed Base that he intended to seek an exceptional sentence under RCW 9.94A.535(2)(d) on grounds that Base had committed a major economic offense given the number of victims and the large amount of money alleged to have been wrongfully appropriated. The State sought an 84-month exceptional sentence, as opposed to a standard range sentence of up to 90 days.

¶ 8 After Blakely, the prosecutor sought to have aggravating factors submitted to the jury if Base were found guilty. A King County Superior Court judge concluded that he possessed the inherent authority to empanel a sentencing jury. Prior to either trial or plea, Base sought discretionary review of that decision and we granted review.

¶ 9 METCALF. James Metcalf was charged with the second degree murder of Denise McCormick. After Blakely was filed, the State moved to amend the information to add three statutory aggravating factors: that the crime was committed "with sexual motivation," that Metcalf "manifested deliberate cruelty," and "that the victim was particularly vulnerable." Metcalf Clerk's Papers at 6. A Spokane County Superior Court judge permitted the State to amend the information to add the additional aggravating factor of sexual motivation, concluding that she had statutory authority to do so under RCW 9.94A.835. She declined, however, to permit the information to be amended to add the other two aggravating factors, determining that she was without authority to submit those factors to the jury. The State moved for discretionary review. We granted review, and consolidated Metcalf's case with the Pillatos, Butters, and Base cases.4

¶ 10 Shortly after oral argument, the governor signed Laws of 2005, chapter 68. The express purpose of this statute was to bring the SRA into accord with the United States Supreme Court's decision in Blakely. LAWS of 2005, ch. 68, § 1.5 The act added a new procedure for juries to find facts justifying exceptional sentences:

(1) At any time prior to trial or entry of the guilty plea if substantial rights of the defendant are not prejudiced, the state may give notice that it is seeking a sentence above the standard sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based.

(2) The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.

LAWS of 2005, ch. 68, § 4(1), (2). The act contained an emergency clause, bringing it into immediate effect. Laws of 2005, ch. 68, § 7. We permitted additional argument and briefing in order to assist us in determining whether or not the statute applied to these cases.

II

¶ 11 Since these cases present only questions of law, our review is de novo. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9, 43 P.3d 4 (2002).

1. Do OUR TRIAL COURTS HAVE INHERENT AUTHORITY TO EMPANEL JURIES?

¶ 12 In all four cases before us, the State asks our court to conclude that the respective trial courts had the inherent authority to empanel a jury to determine whether an exceptional sentence should be imposed. But in State v. Hughes, 154 Wash.2d 118, 151-52, ¶ 70, 110 P.3d 192 (2005), overruled in part on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), we concluded that no such inherent authority exists. We said, "`This court has consistently held that the fixing of legal punishments for criminal offenses is a legislative function.'" Hughes, 154 Wash.2d at 149, ¶ 64, 110 P.3d 192 (quoting State v. Ammons, 105 Wash.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986)). "`"[I]t is the function of the legislature and not of the judiciary to alter the sentencing process."'" Id. (quoting Ammons, 105 Wash.2d at 180, 718 P.2d 796) (quoting State v. Monday, 85 Wash.2d 906, 909-10, 540 P.2d 416 (1975)). We went on to say:

This court will not create a procedure to empanel juries on remand to find aggravating factors because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court. To create such a procedure out of whole cloth would be to usurp the power of the legislature.

Id. at 151-52, ¶ 70, 110 P.3d 192.

¶ 13 Similarly in State v. Martin, 94 Wash.2d 1, 7, 614 P.2d 164 (1980), this court declined to imply a "special sentencing provision" that would allow the death penalty to apply to those who pleaded guilty, in the absence of any statutory provision allowing a jury to be empanelled following a guilty plea. We said we "[did] not have the power to read into a statute" such a provision, and that the statute did not allow us to convene a jury solely to consider death. Id. at 8, 614 P.2d 164. Consistent with our decisions in Hughes and Martin, we conclude that trial courts do not have inherent authority to empanel sentencing juries.

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