State v. Hunley, 161 Wash. App. 919

Background

Hunley was convicted by jury of attempting to elude a police vehicle after a high-speed chase with a marked police officer pursuing in uniform; a special allegation for threatened conduct was found true; sentencing relied on an attorney statement listing Hunley’s prior convictions; the trial court used an offender score of five to place him at the top of the standard range; Hunley did not object to the criminal history statement; the majority remands for resentencing after concluding the 2008 SRA amendments violate due process when used to shift the burden of proving prior convictions.
The State contends reckless driving is not a lesser included offense of attempting to elude; the defense argues the State must prove prior convictions by evidence beyond bare assertions; the court agrees the 2008 amendments permit prima facie evidence but holds they violate due process when used to relieve the State’s burden at sentencing.
The trial court judged Hunley’s sentence based on an unsworn, pre-sentencing statement listing prior convictions; the court sentenced at the top of the offender range; the majority vacates the sentence and remands for resentencing with opportunity for the State to present evidence of criminal history; the dissent would affirm the sentence and reject the constitutional attack on the amendments.
Washington follows Strickland for ineffective assistance; the Workman test governs lesser-included-offense instructions; reckless driving is not a lesser included offense in attempted eluding due to the OR requirement that the offender drive in a reckless manner, which is a stricter standard than “reckless driving.”
Ford v. Ammons and Mendoza establish due process at sentencing requiring evidence beyond bare assertions; the 2008 amendments to RCW 9.94A.500(1) and .530(2) provide prima facie evidence and allow acknowledgement by silence, which the majority finds unconstitutional as applied; the remand allows the State to prove Hunley’s prior convictions by proper evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether reckless driving is a lesser included offense to attempting to elude a police vehicle	Hunley argues recklessness is included under the greater offense.	State contends amendments removed the inclusion.	Reckless driving is not a lesser included offense; remand held on other grounds.
Whether the 2008 SRA amendments unconstitutionally relieve the State of proving prior convictions at sentencing	Hunley contends amendments violate due process by shifting burden.	State argues amendments preserve ultimate burden while respecting due process.	The amendments, as applied, violate due process; remand for evidence of criminal history.

Key Cases Cited

State v. Ford, 137 Wn.2d 472 (Wash. 1999) (due process at sentencing requires evidence beyond bare assertions of prior convictions)
State v. Mendoza, 165 Wn.2d 913 (Wash. 2009) (acknowledgement rules for criminal history at sentencing; impact on remand)
In re Personal Restraint of Cadwallader, 155 Wn.2d 867 (Wash. 2005) (due process considerations at sentencing)
State v. Bergstrom, 162 Wn.2d 87 (Wash. 2007) (prior convictions and sentencing considerations)
State v. Weaver, 171 Wn.2d 256 (Wash. 2011) ( Weaver addresses 9.94A.530(2) in light of amendments)
State v. Ammons, 105 Wn.2d 175 (Wash. 1986) (constitutional standard for proof of prior convictions at sentencing)
State v. Argueta, 107 Wn.2d 532 (Wash. 2001) (precedent on lesser included offenses under pre-2003 statute)
State v. Turner, 143 Wn.2d 715 (Wash. 2001) (legal/practical framework for lesser included offenses)
State v. Roybal, 82 Wn.2d 577 (Wash. 1973) (early articulation on inclusion of offenses)