State v. Recuenco
| Decision Date | 17 April 2008 |
| Docket Number | No. 74964-7.,74964-7. |
| Citation | 163 Wn.2d 428,180 P.3d 1276 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Arturo R. RECUENCO, Petitioner. |
¶ 1 This case asks us to determine whether Washington law requires a harmless error analysis where a sentencing factor, such as imposition of a firearm enhancement based on a deadly weapon finding, was not submitted to the jury.1 The United States Supreme Court in Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), held that Blakely2 errors can be subject to harmless error analysis. We conclude that under Washington law, harmless error analysis does not apply in these circumstances. On remand, we affirm State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005), and remand to the trial court.
¶ 2 On September 18, 1999, Arturo R. Recuenco was involved in an altercation with his wife and threatened her with a handgun. Based on this incident, Recuenco was charged by information with second degree assault "with a deadly weapon, to — wit: a handgun" pursuant to former RCW 9.94A.125 (1983) and former RCW 9.94A.310 (1999).3 Defense counsel proposed a special verdict form directing the jury to make a specific finding regarding whether Recuenco was "armed with a deadly weapon at the time of the commission of the crime," and the court accepted this form. Defense counsel also requested that a definition of a "firearm" be submitted to the jury to explain the deadly weapon definition, but the prosecutor stated that that was unnecessary because no element of a firearm was included in the charged crime or enhancement. The jury, in addition to finding Recuenco guilty of second degree assault, returned a special verdict finding that Recuenco was armed with a deadly weapon during the commission of the second degree assault. The information did not contain an allegation that a firearm enhancement applied, nor did the jury return a special verdict concluding that Recuenco was armed with a firearm.
¶ 3 At sentencing, the State requested the low end of the standard sentencing range, 3 months, plus a 36-month firearm enhancement. Defense counsel argued that only a 12-month deadly weapon enhancement was appropriate because the jury had returned a special verdict with only a deadly weapon finding.4 The trial court imposed a 36-month firearm enhancement instead of the 12-month deadly weapon enhancement charged in the information and found by the jury.
¶ 4 Recuenco appealed his conviction and sentence, arguing that he was deprived of his due process rights because a firearm enhancement was imposed despite the jury finding that he was armed with the deadly weapon. The Court of Appeals held that any possible error was harmless because the only weapon mentioned at any stage of the proceedings was a firearm. State v. Recuenco, noted at 117 Wash.App. 1079, 2003 WL 21738927, at *5.
¶ 5 The focus of our first review of Recuenco's case was on the application of Apprendi and Blakely. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The United States Supreme Court in Apprendi, held that other than 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." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In Blakely, the Court clarified "that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. 2531. Thus, based on Blakely, we reversed and vacated Recuenco's sentence on the grounds that imposing the firearm enhancement without a firearm finding by the jury violated Recuenco's Blakely Sixth Amendment rights. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (hereinafter Recuenco I).
¶ 6 In our initial review, we did not consider whether the error of failing to submit the firearm finding to the jury was harmless' because we understood the federal constitution to prohibit harmless error analysis of Sixth Amendment violations under Blakely. See State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005), overruled in part by Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (hereinafter Recuenco II). In Recuenco II, the United States Supreme Court reversed our decision, stating that under federal law the failure to submit a sentencing factor to the jury is subject to harmless error analysis. Recuenco II, 126 S.Ct. at 2553.
¶ 7 The Supreme Court remanded the case to us to consider whether the failure to submit a sentencing factor to the jury is subject to harmless error analysis under Washington law.
¶ 8 Before embarking on our analysis, it is necessary to focus on what error occurred in this case and how the claim of error evolved. To determine where the claim of error began, the initial inquiry focuses on the information specifying the charges. The State has the authority and responsibility for bringing charges against a person. In that regard, the State possesses wide discretion to choose the charges it wants to pursue, if any.
¶ 9 Our cases have required the State to include in the charging documents the essential elements of the crime alleged. City of Auburn v. Brooke, 119 Wash.2d 623, 627, 836 P.2d 212 (1992). The essential elements rule requires a charging document allege facts supporting every element of the offense and identify the crime charged. State v. Leach, 113 Wash.2d 679, 689, 782 P.2d 552 (1989). "Elements" are the facts that the State must prove beyond a reasonable doubt to establish that the defendant committed the charged crime. State v. Johnstone, 96 Wash.App. 839, 844, 982 P.2d 119 (1999). The purpose of the essential elements rule is to provide defendants with notice of the crime charged and to allow defendants to prepare a defense. State v. Campbell, 125 Wash.2d 797, 801, 888 P.2d 1185 (1995).
¶ 10 Sentencing enhancements, such as a deadly weapon allegation, must be included in the information. In re Pers. Restraint of Bush, 95 Wash.2d 551, 554, 627 P.2d 953 (1981). When the term "`sentence enhancement'" describes an increase beyond the maximum authorized statutory sentence, it becomes the equivalent of an "`element'" of a greater offense than the one covered by the jury's guilty verdict. Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348. Contrary to the dissent's assertions, Washington law requires the State to allege in the information the crime which it seeks to establish.5 This includes sentencing enhancements. See State v. Crawford, 159 Wash.2d 86, 94, 147 P.3d 1288 (2006) ().
¶ 11 We examined a similar issue in an earlier case, State v. Theroff, 95 Wash.2d 385, 622 P.2d 1240 (1980), in which the defendant was charged by information with two counts of first degree murder. At that time, the State filed a separate notice advising the defendant that it would seek a firearm and a deadly weapon enhancement. The State subsequently amended the information by realleging the two counts of first degree murder and adding a count of second degree murder. However, the State did not file another notice of intent to seek enhanced penalties in conjunction with the amended information, and no intention to seek an enhanced penalty under any of the counts was indicated in either information. The defendant was found guilty of second degree felony murder, and by special interrogatory, the jury found petitioner was armed with a deadly weapon, a firearm, at the time of the commission of the crime. However, the State neglected to provide the defendant with notice that it intended to seek an enhanced penalty in its information. We remanded for resentencing because "[w]hen prosecutors seek enhanced penalties, notice of their intent must be set forth in the information." Theroff, 95 Wash.2d at 392, 622 P.2d 1240. Thus, unless a complaint is properly amended, once the State elects which specific charges it is pursuing and includes elements in the charging document, it is bound by that decision. We have not altered this requirement.
¶ 12 Recuenco's case is similar because it also involves a charging decision made by the State. The prosecutor chose to charge the lesser enhancement of "deadly weapon." Former RCW 9.94A.310(4)(b).6 This provided Recuenco with notice of the charged offense and the ability to prepare a defense, as required by our state and federal constitutions.7 Moreover, consistent with the specific charge brought, the jury was instructed on the deadly weapon enhancement and specifically found Recuenco guilty of second degree assault while armed with a deadly weapon. There is nothing erroneous about that finding.
¶ 13 Curiously, the dissent erroneously analyzes the issues in this case by discussing the lack of objection to the information and the liberal standard applicable to postverdict challenges. Dissent at 1286-88. As noted above, there is no error in the information at all; the State alleged that the defendant was armed with a deadly weapon where it could have alleged a firearm enhancement or not sought any enhancement at all. That was the choice of the State at the time it filed the information. No error occurred in the jury's findings. In fact, it was not until Recuenco was sentenced for an enhancement that was not charged nor found by the jury that any error had occurred...
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