State v. Rice

• Decision Date: 19 January 2011
• Docket Number: No. 39600–9–II.,39600–9–II.
• Citation: 159 Wash.App. 545,246 P.3d 234,264 Ed. Law Rep. 400
• Parties: STATE of Washington, Respondent,v.Jennifer Leigh RICE, Appellant.
• Court: Washington Court of Appeals

159 Wash.App. 545

246 P.3d 234

264 Ed. Law Rep. 400

STATE of Washington, Respondent,

v.Jennifer Leigh RICE, Appellant.

No. 39600–9–II.

Court of Appeals of Washington, Division 2.

Jan. 19, 2011.

Rita Joan Griffith, Attorney at Law, James Elliot Lobsenz, Carney Badley Spellman, Seattle, WA, for Appellant.Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.QUINN–BRINTNALL, J.

[159 Wash.App. 553] ¶ 1 At a bench trial on stipulated facts, the trial court found former Tacoma Public School District elementary school teacher Jennifer Rice guilty of (1) first degree kidnapping, which involved special allegations of sexual motivation under former RCW 9.94A.835 (2006) and a victim less than 15 years old under RCW 9.94A.837; (2) first degree child molestation, with a special allegation of being predatory under RCW 9.94A.836; and (3) two counts of third degree child rape. The trial court imposed two concurrent life sentences with a minimum 25 years of confinement and two concurrent 60 month sentences.

¶ 2 Rice challenges the constitutionality of the special allegation statutes and the resulting sentencing enhancements, asking us to remand for resentencing. Rice argues that RCW 9.94A.836, .837, and former RCW 9.94A.835 violate the separation of powers doctrine, improperly involve the trial court in plea bargaining, and impinge on her due process and Eighth Amendment rights. Rice also challenges the imposition of. a sentencing enhancement that mirrors an element in her underlying crime as a violation of her right to be free from double jeopardy. In a statement of additional grounds (SAG),¹ Rice contends that the sentencing court imposed an illegal sentence and that her sentence violates all the stated purposes of the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW. We discern no error and affirm.

FACTS

¶ 3 At trial, the parties stipulated to the following substantive facts,

Jennifer Leigh Rice was born on November 30, 1975. O.E. was born on October 30, 1996. Jennifer Rice and O.E. are not and have never been married to each other. During the entire period between December 1, 2006 and February 28, 2007, Jennifer Rice was a 4th grade teacher, as contemplated in the definition of “predatory” as set forth in [former] RCW 9.94A.030 [ (2006) ], at McKinley elementary school, which is a public school in the Tacoma Public School District. During the entire period between December 1, 2006 and February 28, 2007, O.E. was a 4th grade student of the school (McKinley Elementary) and was under Jennifer Leigh Rice's authority and supervision, as contemplated in the definition of “predatory” as set forth in [former] RCW 9.94A.030.

During the period between December 1, 2006 and February 28, 2007, Jennifer Leigh Rice had sexual contact with O.E. by rubbing O.E.'s penis with her hand for purposes of their mutual sexual gratification. This act occurred in the residence of Jennifer Leigh Rice in Yelm, Washington. Furthermore, this act was unlawful and felonious. O.E. was 10 years old and Jennifer Leigh Rice was his teacher at that time, as set forth above.

Jennifer Leigh Rice, who resided in Yelm, Washington, had parked her car near O.E.'s residence in Tacoma, Washington during the evening of August 10, 2007. During the morning hours of August 11, 2007, O.E. left his house and met Jennifer Leigh Rice in her parked car. During the period between the 10th day of August 2007 and the 11th day of August 2007, Jennifer Leigh Rice did thereby unlawfully and feloniously, with intent to facilitate the crime of rape of a child in the first degree, intentionally abduct O.E. The abduction was accomplished by Jennifer Leigh Rice restraining O.E. in her car and driving him to Ellensburg, WA. At a rest stop near Ellensburg WA, Jennifer Rice engaged in penile-vaginal sexual intercourse with O.E. Jennifer Leigh Rice restricted O.E.'s movements without lawful authority and in a manner that interfered substantially with O.E.'s liberty. This was accomplished by O.E.'s acquiescence, as O.E. was 10 years of age at the time, and his parent, guardian, or other person or institution having lawful control or custody of O.E. had not acquiesced to any of these acts. Because O.E. was secreted and held in Jennifer Leigh Rice's moving car, O.E. was in a place and under circumstances where he was unlikely to be found, especially by those persons directly affected by the child's disappearance such as O.E.'s parents and siblings. O.E.'s parents and siblings did not know where O.E. was until O.E. was returned home during the afternoon of August 11, 2007. During this entire time, Jennifer Leigh Rice and O.E. were in the State of Washington. One of the purposes for which Jennifer Leigh Rice committed the crime of Kidnapping was for the purpose of her sexual gratification.

R.E., who is O.E.'s older brother, was born on March 2, 1992. R.E. is not currently and never has been married to Jennifer Leigh Rice. That during the period between the 11th day of July 2007 and the 20th day of July, 2007, Jennifer Leigh Rice did engage in penile-vaginal sexual intercourse with R.E. on two separate occasions occurring on two separate dates and at two separate locations. Each act of intercourse occurred in the State of Washington. R.E. was 15 years of age at the time, and the defendant was more than 48 months older than R.E.

Clerk's Papers (CP) at 62–64.

¶ 4 On August 13, 2007, the State charged Rice with first degree kidnapping of O.E. This charge included a sexual motivation special allegation under former RCW 9.94A.835.² On September 12, the State filed an amended information adding six counts of first degree child rape related to various sexual encounters with O.E. between April 2007 and August 2007; four counts of first degree child molestation related to various sexual encounters with O.E. between December 2006 to August 2007; and two counts of third degree child rape related to sexual encounters with R.E. in July and August of 2007. One of the first degree child molestation counts (count IV) included a predatory³ offense special allegation under RCW 9.94A.836.⁴ All of the counts in the amended information included requests for an aggravating exceptional sentence based on the number of current crimes and a concern that the length of any sentence would permit some crimes to go unpunished. Former RCW 9.94A.535(2)(2005).⁵

¶ 5 On May 15, 2008, Rice moved to dismiss the predatory offense special allegation and the State's requests for an aggravating exceptional sentence. The trial court denied the motion to dismiss the predatory offense special allegation and reserved judgment on the aggravating exceptional sentence issue.

¶ 6 On April 20, 2009, the trial court held a hearing that began with the State filing a second amended information containing only four charges from the first amended information, including (1) the first degree kidnapping of O.E. charge, with a sexual motivation special allegation under former RCW 9.94A.835, and a new additional special allegation that the victim was less than 15 years old, under RCW 9.94A.837 (count I); ⁶ (2) a first degree child molestation charge for sexual contact with O.E., which included a predatory offense special allegation under RCW 9.94A.836 (count IV); and (3) the two counts of third degree child rape for sexual contact with R.E. (counts XII and XIII). In the second amended information, the State dropped the request for an aggravated exceptional sentence under former RCW 9.94A.535(2), but it requested sentencing under the nonpersistent offenders sentencing statute, former RCW 9.94A.712 (2006).⁷ Rice had notice of the second amended information.

¶ 7 Next at the hearing, Rice waived her right to a jury trial and entered into an agreement with the State wherein she stipulated to the aforementioned underlying facts, stipulated that the facts were sufficient to support convictions for the charges and special allegations in the second amended information, and waived her right to challenge the convictions on sufficiency of evidence grounds on appeal. The trial court accepted the stipulated agreement as a knowing, intelligent, and voluntary decision. Based on the stipulated facts, the trial court entered guilty verdicts for all four counts and the corresponding special allegations that were included in the second amended information.

¶ 8 Last, at this hearing, after entering the guilty verdicts, the trial court accepted an amendment to the stipulated agreement. The amendment clarified that, after a successful appeal, during any remand and resentencing without the special allegations, Rice could argue for a minimum sentence at the low end of the standard sentencing range and that the State could argue for a sentence at the high end of the standard sentencing range.

¶ 9 On July 24, 2009, the trial court sentenced Rice to two concurrent life sentences with a mandatory minimum term of 25 years confinement on the first degree kidnapping with sexual motivation conviction involving a victim less than 15 years old and the predatory first degree child molestation (counts I and IV). The trial court ordered indefinite community custody based on these convictions. The trial court also sentenced Rice to two concurrent 60 month sentences on the two third degree child rape convictions (counts XII and XIII). Rice timely appeals.

ANALYSIS

Separation of Powers

¶ 10 Rice contends that RCW 9.94A.836, .837, and former RCW 9.94A.835 violate the separation of powers doctrine. Specifically, she argues that the legislature encroached on executive power by enacting statutes that limit a prosecutor's discretion by requiring a prosecutor to charge these special allegations in specific instances such that the statutes prohibit a prosecutor from plea bargaining.⁸ The State argues that the legislature did not violate the separation of powers doctrine because article XI, section 5 of the Washington Constitution grants the legislature autho...