State v. Powell

Decision Date17 December 2009
Docket NumberNo. 80496-6.,80496-6.
Citation223 P.3d 493,167 Wash.2d 672
PartiesSTATE of Washington, Respondent, v. Terrance Terriel POWELL, Petitioner.
CourtWashington Supreme Court

Erik Louis Bauer, John Cain, Attorneys at Law, Tacoma, WA, Rita Joan Griffith, Attorney at Law, Seattle, WA, for Petitioner.

Terry Lane, Kathleen Proctor, Michelle Luna-Green, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

ALEXANDER, C.J.

¶ 1 We granted Terrance Powell's motion for discretionary review of a ruling that the trial court made following the Court of Appeals' reversal of Powell's exceptional sentence for first degree murder. As part of its decision, the Court of Appeals remanded for resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Powell challenges a decision the trial court made, upon remand, to impanel a jury to determine if there are aggravating factors that support an exceptional sentence. He contends that the trial court did not have authority to impanel a jury for this purpose because the State did not give notice of its intent to seek an exceptional sentence prior to his 2002 trial. Powell argues, additionally, that impaneling a jury to consider aggravating factors would violate the prohibition against double jeopardy. We disagree with Powell on both points and affirm the trial court.

I

¶ 2 In 1997, Powell was charged in Pierce County Superior Court with aggravated first degree murder and, alternatively, with first degree murder. Although a jury found Powell guilty of first degree murder, the conviction was reversed by the Court of Appeals and the case was remanded for a new trial. At the subsequent jury trial held in 2002, Powell was charged with first degree murder only. The information charging Powell with that crime did not give notice of the aggravating factors later relied upon by the trial judge in imposing an exceptional sentence. After the jury found Powell guilty of first degree murder, the trial judge imposed an exceptional sentence of 720 months after finding a number of aggravating factors. Powell's conviction and sentence was thereafter affirmed by the Court of Appeals.

¶ 3 Following the United States Supreme Court's decision in Blakely, Powell filed a personal restraint petition citing Blakely and alleging that judicial determination of aggravating factors violated his right to a jury trial. The Court of Appeals granted Powell's petition, reversed the exceptional sentence, and remanded to the trial court for resentencing. In re Pers. Restraint Pet. of Powell, Court of Appeals, Division Two Order Cause No. 34244-8-II (June 20, 2006).

¶ 4 After remand, the State notified Powell that it intended to seek an exceptional sentence based on aggravating circumstances enumerated in RCW 9.94A.535(3). Powell moved for the imposition of a standard range sentence, arguing that (1) the State had not provided notice to Powell that it would seek an exceptional sentence, and (2) the trial court did not have authority to impanel a jury because the recently amended RCW 9.94A.537 could not be applied retroactively. The trial court concluded that it had the authority, pursuant to RCW 9.94A.537(2), to impanel a jury for the purpose of determining whether there were aggravating factors that would support an exceptional sentence.

¶ 5 Powell then filed a motion for discretionary review. We granted the motion.

II

¶ 6 The issue presented to us is whether a trial court, following a Blakely-based reversal of an exceptional sentence, is authorized to impanel a jury for the purpose of considering whether aggravating factors exist that bear on resentencing when the defendant was not given notice before trial of the State's intent to seek an exceptional sentence and the factors upon which its request is based. Resolution of this issue requires interpretation of RCW 9.94A.537, a recently amended section in Washington's Sentencing Reform Act of 1981, chapter 9.94A RCW. Statutory interpretation is a legal question that we review de novo on appeal. Stuckey v. Dep't of Labor & Indus., 129 Wash.2d 289, 295, 916 P.2d 399 (1996). When interpreting the meaning of statutes, "we must derive our understanding of the legislature's intent from the plain language before us, especially in matters of criminal sentencing." State v. Delgado, 148 Wash.2d 723, 730, 63 P.3d 792 (2003).

¶ 7 In 2004, the United States Supreme Court held in Blakely that any fact, other than that of a prior conviction, that increases the applicable punishment must be found by a jury beyond a reasonable doubt unless the defendant stipulates to the fact or facts or waives the right to have the jury make the determination. Blakely, 542 U.S. 296, 124 S.Ct. 2531. In response to Blakely, the legislature enacted RCW 9.94A.537 in order to provide a procedure whereby juries are tasked with finding facts, other than the fact of a prior conviction, to support an exceptional sentence. Laws of 2005, ch. 68 (sometimes referred to as the "Blakely fix"). The 2005 enactment also contained a notice procedure:

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.

LAWS OF 2005, ch. 68, § 4(1) (codified as RCW 9.94A.537(1)).

¶ 8 In State v. Pillatos, 159 Wash.2d 459, 465, 150 P.3d 1130 (2007), we held that the procedures outlined in RCW 9.94A.537 did not apply to a defendant who pleaded guilty prior to the effective date of the 2005 enactment. We concluded, instead, that it applied only to defendants whose trials had not begun or who had not already pleaded guilty when the amendment took effect. Id. Following our 2007 decision in Pillatos, the legislature amended RCW 9.94A.537 (the so-called "Pillatos fix"). This amendment provides as follows:

In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.

LAWS OF 2007, ch. 205, § 2(2) (codified as RCW 9.94A.537(2)).

¶ 9 Powell asserts that notice of the State's intention to seek an exceptional sentence is required by RCW 9.94A.537(1), regardless of the date of his trial. Because the State did not provide notice under subsection (1) that it would seek an exceptional sentence prior to his 2002 trial, Powell contends that a jury cannot be impaneled under subsection (2) to consider aggravating circumstances.

¶ 10 We disagree with Powell's contention that the notice provision in RCW 9.94A.537(1) requires the State give notice of its intent to seek an exceptional sentence. The statute merely states that the State "may" give notice that it is seeking a sentence above the standard sentencing range prior to trial or entry of a guilty plea. The fact that Powell was not given notice prior to trial of the State's intention to seek an exceptional sentence does not, therefore, run afoul of the plain language of the statute.

¶ 11 We are also satisfied that the legislature intended the notice provision in RCW 9.94A.537(1) and the resentencing provision in RCW 9.94A.537(2) to operate in different circumstances. The notice provision applies to defendants who had not yet gone to trial or entered a guilty plea as of the effective date of the amendment in 2005. Pillatos, 159 Wash.2d at 465, 150 P.3d 1130. The resentencing provision, on the other hand, applies in cases such as the instant where the defendant's trial began prior to the 2005 amendment and there has been a remand for a new sentencing hearing.

¶ 12 We relied on the legislature's use of the language "`[a]t any time prior to trial or entry of the guilty plea'" to support our determination in Pillatos that the procedures outlined in RCW 9.94A.537 applied to defendants who had not yet gone to trial or entered a guilty plea. Pillatos, 159 Wash.2d at 470, 150 P.3d 1130 (quoting LAWS OF 2005, ch. 68, § 4(1)). Significantly, when it amended the statute in 2007 because of our Pillatos decision and added the resentencing provision in subsection (2), the legislature did not alter the notice provision in subsection (1) that it had previously added. Instead, it left subsection (1) to apply to pending cases. It seems clear that the later adopted subsection (2) applies to cases already resolved through trial or guilty plea, but where resentencing is necessary. We are satisfied, therefore, that the notice provision in RCW 9.94A.537(1) does not apply to the resentencing procedure in RCW 9.94A.537(2).

¶ 13 Our reading of the statute is supported by what we discern was the legislature's intent in enacting the 2007 amendment authorizing trial courts to impanel juries for resentencing. See Am. Cont'l Ins. Co. v. Steen, 151 Wash.2d 512, 518, 91 P.3d 864 (2004) (the court's primary goal in construing a statute is to determine and give effect to legislative intent). Importantly, the 2007 amendment was accompanied by the following statement:

In State v. Pillatos, 159 Wash.2d 459, 150 P.3d 1130 (2007), the Washington supreme court held that the changes made to the sentencing reform act concerning exceptional sentences in chapter 68, Laws of 2005 do not apply to cases where the trials had already begun or guilty pleas had already been entered prior to the effective date of the act on April 15, 2005. The legislature intends that the superior courts shall have the authority to impanel juries to find aggravating circumstances in all cases that come before the courts for trial or sentencing, regardless of the date of the original trial or sentencing.

LAWS OF 2007, ch. 205, § 1.

¶ 14 In...

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