State v. White

• Decision Date: 01 November 2022
• Docket Number: 56265-1-II
• Parties: STATE OF WASHINGTON, Respondent, v. YOSHIO KODOMA WHITE, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent,
v.
YOSHIO KODOMA WHITE, Appellant.

No. 56265-1-II

Court of Appeals of Washington, Division 2

November 1, 2022

UNPUBLISHED OPINION

Cruser, A.C.J.

Yoshio White was convicted of first degree murder in 1996, and was sentenced to 500 months confinement, based in part on a judicial finding of deliberate cruelty. White has been resentenced twice: first, on direct appeal, because the sentencing court relied on additional aggravating factors that were improper as a basis for his upward variance; and second, after having his offender score reduced pursuant to Blake.^[1] White's first resentencing resulted in a 500-month sentence, and his second resentencing resulted in a 466-month sentence.

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White now appeals from his second resentencing, arguing that the court impermissibly relied on a judicial finding of deliberate cruelty when it should have impaneled a jury pursuant to Blakely^[2] and RCW 9.94A.537(2).

Because Washington law does not support a retroactive application of Blakely on these facts, and RCW 9.94A.537(2) does not apply to non-Blakely resentencings, we affirm the resentencing court.

FACTS

In 1996, a jury convicted Yoshio White of first degree murder. White's offender score was 6, and his standard sentencing range was 312-416 months. The trial court found three aggravating factors: deliberate cruelty, prior substantial criminal history showing a pattern of escalating violence, and manipulation of a witness. Its finding of deliberate cruelty was based on the fact that the victim was shot eight times, several of which "occurred after she had been shot and was lying on the ground and defenseless." Clerk's Papers at 141. The court sentenced White to 500 months, representing the sum of the high end of White's standard range plus an exceptional sentence of 84 months above the standard range.

White appealed his sentence, arguing that the trial court's finding of deliberate cruelty was not supported by the record and could not support the exceptional sentence, and that escalating violence and witness manipulation were not proper aggravating factors. State v. White, noted at 89 Wn.App. 1055, 1998 WL 109981, at *1-2. This court affirmed the trial court's finding of

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deliberate cruelty but held that the other two aggravating factors were not proper aggravating factors. Id. at *2-3. This court therefore remanded White's case for resentencing. Id. at *3.

White's first resentencing hearing in 1999 resulted in a 500-month sentence based on the aggravating factor of deliberate cruelty. White appealed his resentencing to this court, arguing in relevant part that the evidence did not support an exceptional sentence. Comm'r's Ruling Affirming Sentence, State v. White, No. 24745-3-II, at 2 (Wash.Ct.App. Apr. 24, 2001). This court affirmed because the issue was raised and resolved in White's first appeal. Id. at 2-3. We reasoned that this court had, in White's first appeal, "specifically approved the factor of deliberate cruelty" and found "[t]hat factor, standing alone" to be sufficient to support White's exceptional sentence. Id. at 2. The supreme court denied review. State v. White, 145 Wn.2d 1013, 40 P.3d 1176 (2001). White's judgment and sentence became final on December 18, 2001, when this court issued the mandate disposing of his direct appeal.

White filed a personal restraint petition in 2005, arguing that Blakely entitled him to a jury determination as to any aggravating factors before he could receive an exceptional sentence. Ord. Dismissing Petition, In re Pers. Restraint of White, No. 32216-1-II, at 1 (Wash.Ct.App. Mar. 22, 2005). This court determined that Blakely did not apply retroactively to White's sentence, and therefore dismissed his petition. Id. at 3. In 2020, White filed another personal restraint petition, which we dismissed as time-barred. Ord. Dismissing Petition, In re Pers. Restraint of White, No. 54805-4-II (Wash.Ct.App. Dec. 1, 2020).

In 2021, White moved to correct his offender score and to be resentenced pursuant to State v. Blake. The superior court adjusted his offender score from 6 to 5 because his original score included a prior drug possession conviction made voidable under Blake. Correspondingly, his

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standard range was reduced to 291-388 months. The State recommended a sentence of 472 months. The resentencing court imposed a 466-month sentence, the sum of the high end of White's new standard range plus an exceptional sentence of 78 months (reduced from 84 months) based on the prior sentencing court's finding of deliberate cruelty. The resentencing court reduced White's exceptional upward variance to match "where he would have been percentage-wise" as compared to his original sentence. Verbatim Report of Proceedings (VRP) at 29.^[3]

White now appeals his amended sentence, arguing that the resentencing court impermissibly relied on the trial court's finding of deliberate cruelty and that Blakely entitled him to a jury trial on that issue.

ANALYSIS

I. Applicability of Blakely to White's Resentencing Hearing

White argues that the sentencing court impermissibly relied on the aggravating factor of deliberate cruelty found by the trial court at his original sentencing. He contends that he was entitled to a jury trial on the issue.

A. Legal Principles

In 2004, the United States Supreme Court decided Blakely v. Washington, holding that criminal defendants have a constitutional right to have a jury decide the facts that support any aggravating factor underlying an exceptional sentence above the standard range. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The supreme court in 2005 held that Blakely does not

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apply retroactively to convictions and sentences that were final before it was issued. State v. Evans, 154 Wn.2d 438, 449, 114 P.3d 627 (2005).

Washington codified Blakely's holding in the 2005 amendment to the Sentencing Reform Act (SRA), which provides that "[t]he facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt." Former RCW 9.94A.537(2) (2005). The supreme court shortly thereafter held that the 2005 amendment to the SRA, by its plain language, applied only to criminal matters pending trial when the statute took effect on April 15, 2005. State v. Pillatos, 159 Wn.2d 459, 465, 150 P.3d 1130 (2007).

In response to Pillatos, the legislature in 2007...