163 Wash. 2d 346 | Wash. | 2008
Lead Opinion
¶1
Ronald A. Hall was convicted of assault in the first degree. The sentencing court imposed an exceptional sentence of 366 months, based on its own
¶3 On remand, we hold that regardless of whether harmless error analysis applies to the failure to submit a sentencing factor to a jury under Washington law, the error in this case was not harmless because under the exceptional sentencing provisions applicable to Hall, no procedure existed whereby the jury could have been asked to find the aggravating circumstances.
¶4 On January 1, 1996, Hall and Rim Krapf spent the evening at their trailer home with Robert Aaron and April Duckett. After asking Duckett to leave, Krapf started an argument with Hall. Hall responded violently, punching Krapf repeatedly in the face with his fists and, after Krapf fell to the floor, kicking her repeatedly in the face, ribs, back, and buttocks. When Hall told Aaron to get a shovel because Hall was going to bury Krapf, Aaron left and did not return. By the time Hall stopped beating Krapf, she could not see because her eyes were swollen shut. Duckett later returned to the trailer and, after spending 15 to 20 minutes with Hall, took Krapf to the hospital.
¶5 Medical examination revealed that Krapf’s upper jaw was broken in three places, both eye sockets were fractured, her cheekbone and nose were broken, and she had cracked ribs and a punctured lung. Krapf’s facial injuries required extensive reconstructive surgery and resulted in permanent changes in her eyes, vision, and jaw, as well as scarring.
¶6 A jury convicted Hall of first degree assault.
¶7 In August 2004, Hall filed this PRP in this court, alleging that he had been actually prejudiced by a Blakely Sixth Amendment violation through the entry of an exceptional sentence based on aggravating circumstances found by a judge, rather than a jury. We granted Hall’s PRP and remanded the matter for resentencing, consistent with our understanding that under federal law Blakely Sixth Amendment violations could not be subject to harmless error analysis. In re Pers. Restraint of Hall, No. 75800-0, Order Terminating Review (Wash. Sup. Ct. Aug. 24, 2005).
f 8 The Pierce County Prosecuting Attorney’s Office petitioned the United States Supreme Court for writ of certiorari. “During the pendency of [the State’s] petition ... the trial court sentenced Mr. Hall to a term within the standard range,” consistent with our order. Suppl. Br. of Pet’r at 5. On June 30, 2006, the United States Supreme Court decided Recuenco II, holding that the failure to submit a sentencing factor to a jury is subject to harmless error analysis. 548 U.S. at 222. In light of Recuenco II, the Court granted certiorari in Washington v. Hall, vacated our judgment, and remanded the matter to us for further consideration. 548 U.S. 923.
II. ISSUE
¶9 Was imposition of the exceptional sentence in this case, based on aggravating circumstances found by the trial court rather than the jury, harmless error?
¶10 In order to obtain relief in this PRP, Hall must show by a preponderance of the evidence that he was actually and substantially prejudiced by a violation of his constitutional rights. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). “Washington courts have consistently applied this standard even where ... a subsequent change in the law has held a particular jury instruction to be unconstitutional and the error impacts the trial’s truth-finding function.” In re Pers. Restraint of Sims, 118 Wn. App. 471, 477, 73 P.3d 398 (2003) (citing In re Pers. Restraint of Haverty, 101 Wn.2d 498, 503-04, 681 P.2d 835 (1984)).
¶11 It is undisputed that imposing an exceptional sentence based on aggravating circumstances found by the trial court, rather than the jury, violated Hall’s Sixth and Fourteenth Amendment jury trial rights as defined by Apprendi and Blakely. Under federal law, “[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury,” is subject to harmless error analysis. Recuenco II, 548 U.S. at 222.
¶12 On remand, we consider whether the failure to submit a sentencing factor to the jury could be a harmless error in this case.
f 13 The exceptional sentencing provisions in effect when Hall committed his offense directed that the trial court find
¶14 The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, provided an illustrative list of mitigating and aggravating circumstances, “which the court may consider in the exercise of its discretion to impose an exceptional sentence.” Former RCW 9.94A.390 (1995), recodified and amended as RCW 9.94A.535. The SRA further provided:
(2) The court may impose a sentence outside the standard sentence range for that offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence.
(3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.
Former RCW 9.94A.120 (1995), recodified and amended as RCW 9.94A.535 (emphasis added). As we have explained, this language “ ‘explicitly directed] the trial court to make the necessary factual findings’ to support an exceptional sentence ‘and d[id] not include any provision allowing a jury to make those determinations during trial, during a separate sentencing phase, or on remand.’ ”
¶15 The State’s assertion that Washington trial practice allows the court to give a special verdict to the jury “with or without statutory authority” fails to address the situation presented here in which the statutes explicitly direct that the trial court itself make the factual finding. Suppl. Br. of Resp’t at 19. Moreover, the State attempts to support its assertion with statutes that are merely silent on whether the jury or the court shall make the requisite finding.
¶16 Furthermore, the exceptional sentencing provisions applicable to Hall provided:
(2) In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. . . . Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence.
¶17 In Recuenco II, the United States Supreme Court acknowledged that the lack of a procedural mechanism for obtaining a jury finding would demonstrate that the associated error was not harmless. “If. . . Washington law does not provide for a procedure by which [the] jury could have made a finding pertaining to [the sentencing factor], that merely suggests that respondent will be able to demonstrate that the Blakely violation in [the] particular case was not harmless.” Recuenco II, 548 U.S. at 218 (most emphasis added).
¶18 The State argues to no avail that the Court’s concern was sufficiency of the evidence. The State understands the Court to have meant that
if because there was no procedure in place the State presented no evidence of the [sentencing factor], then in that particular case the court cannot conclude the error is harmless. However, if the evidence was presented, but the jury was just never given an opportunity to make a finding on this evidence, then the court may conclude the error was harmless beyond a reasonable doubt.
Suppl. Br. of Resp’t at 18-19. However, the State’s explanation ignores that the express focus of the Court’s observation is the very existence of a valid procedure through which a jury could be given an opportunity to make a finding. Where the legislature has directed that the court, not the jury, will make a finding, and has established that the standard of proof shall be a preponderance of the evidence, rather than beyond a reasonable doubt, the quantum of evidence introduced to support the finding is immaterial — the error cannot be harmless.
f 19 The exceptional sentencing provisions in force at the time of Hall’s offense explicitly assigned the trial court to find aggravating circumstances by a preponderance of the evidence. As a result, it was procedurally impossible for the jury to have made a beyond a reasonable doubt finding on the aggravating circumstances in Hall’s case. Therefore, we hold that the error in Hall’s case cannot be harmless. We remand to the trial court for it to ensure that the record reflects that Hall was properly sentenced to a term within the standard sentencing range.
Alexander, C.J.; C. Johnson, Madsen, Sanders, Chambers, and Owens, JJ.; and Bridge, J. Pro Tem., concur.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme Court held that “[o]ther than the fact of 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.”
In Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), 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.”
We articulated that understanding in State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled in part by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
The jury also returned a special verdict finding that Hall committed the assault while armed with a deadly weapon, based on Krapf’s statement to police that Hall had “beat her with a rifle, as well as [with] his hands and feet, and that he threatened her and Aaron with a pistol.” State v. Hall, noted at 96 Wn. App. 1051, 1999 WL 527739, at *1,1999 Wash. App. LEXIS 1364. Hall’s deadly weapon sentence enhancement was stricken on Hall’s first appeal. Id. at *6.
Following remand, this court ordered supplemental briefing on the issue presented above. In re Pers. Restraint of Hall, No. 75800-0, Order (Wash. Sup. Ct. Oct. 17, 2006). Hall included several additional issues in his supplemental briefing. “[TJhis court will not address an argument ‘raised for the first time in a supplemental brief and not made originally by the petitioner or respondent within the petition for review or the response to petition.’ ” Sorenson v. Pyeatt, 158 Wn.2d 523, 543, 146 P.3d 1172 (2006) (quoting Cummins v. Lewis County, 156 Wn.2d 844, 851, 133 P.3d 458 (2006)); RAP 13.7(b). Consistent with this rule, we decline to address those of Hall’s issues that are not properly before us.
“We leave for another day the more general question of whether, under Washington law, failure to submit a sentencing factor to the jury (and by extension failure to obtain a jury finding on aggravating circumstances) is subject to harmless error analysis.” State v. Womac, 160 Wn.2d 643, 663 n.13, 160 P.3d 40 (2007). We need not resolve the issue of whether harmless error analysis applies in these circumstances because “we are convinced the error here was not harmless beyond a reasonable doubt.” Id.
This case does not present, and we do not decide, the effect of a procedural inability to obtain a constitutionally valid jury finding when a defendant expressly waived his or her ApprendilBlakely Sixth Amendment rights, either by “stipulating] to the relevant facts or consenting] to judicial factfinding.” Blakely, 542 U.S. at 310.
In State v. Pillatos we confirmed that the recently enacted sentencing provisions, creating a procedure whereby facts supporting aggravating circumstances are proved to a jury beyond a reasonable doubt, Laws of 2005, chapter 68, apply only to "pending criminal matters where trials have not begun or pleas [have] not yet [been] accepted.” 159 Wn.2d 459, 470, ¶ 14, 150 P.3d 1130 (2007). Thus these provisions are irrelevant to our analysis of Hall’s case.
The State also relies on two decisions from this court that are not analogous to the situation presented here — the explicit assignment of findings to the trial court. Both decisions address the validity of to-convict instructions in which one element is segregated into a special verdict form. See State v. Oster, 147 Wn.2d 141, 52 P.3d 26 (2002) (permitting use of special verdict form in felony violation of a domestic violence no-contact order in order for the jury to find that the defendant had two or more prior convictions); State v. Mills, 154 Wn.2d 1, 109 P.3d 415 (2005) (allowing special verdicts for elements that elevate a base crime from a misdemeanor to a felony).
Dissenting Opinion
¶20 (dissenting) — Ronald Hall was sentenced to 30 years in prison for his vicious assault on Ms. Kim Krapf more than 10 years ago. Today, a majority of this court decides, in essence, that Hall should be set free after serving only 11 years for this crime.
Facts and Procedural History
¶21 On January 1, 1996, Hall savagely beat Krapf using his fists and feet, as well as a weapon. State v. Hall,
f 22 A medical examination conducted at a nearby emergency room revealed the severity of Ms. Krapf’s injuries: “Krapf’s upper jaw was broken in three places and . .. both eye sockets were fractured. Krapf also had a punctured lung, a broken nose, a broken cheek bone, and broken ribs. Further injuries included bruising and lacerations along her neck and down her back to the base of her spine.” Id. at *3.
¶23 As a result of his attack on Krapf, Hall was convicted by a jury of assault in the first degree while armed with a deadly weapon. Id. at *1. The trial court imposed an exceptional sentence of 366 months plus 24 months on the deadly weapon enhancement. Id. at *5. The trial court based its exceptional sentence on three aggravating factors: (1) deliberate cruelty, (2) multiple injuries, and (3) severity of the injuries. Id. The Court of Appeals affirmed Hall’s conviction but vacated his sentence based on an erroneously imposed deadly weapon enhancement and a miscalculated offender score, and remanded for resentencing. State v. Hall, noted at 111 Wn. App. 1041, 2002 Wash. App. LEXIS 1063, at *2 (Hall II). At resentencing, the trial court imposed an exceptional sentence of 366 months based on two aggravating factors: deliberate cruelty and multiple injuries. Id. at *3. Again, the Court of Appeals vacated Hall’s sentence and remanded due to an error in the calculation of Hall’s offender score. Id. at *10. At resentencing, the trial court imposed the same exceptional sentence of 366 months based on the same two aggravating factors. State v. Hall, noted at 118
¶24 Hall next filed three unsuccessful personal restraint petitions (PRPs). In re Pers. Restraint of Hall, No. 27794-8-II, Order Dismissing Pet. (Wash. Ct. App. Feb. 14, 2002); In re Pers. Restraint of Hall, No. 30871-1-II, Order Dismissing Pet. (Wash. Ct. App. Jan. 23, 2004); In re Pers. Restraint of Hall, No. 28197-0-II, Order Dismissing Pet. (Wash. Ct. App. Mar. 26, 2004). Thus, the present petition constitutes Hall’s fourth collateral attack, and seventh overall attack, on his assault conviction.
¶25 The first time the present petition came before this court, we agreed with Hall that his Sixth Amendment rights had been violated, vacated his sentence, and remanded for resentencing within the standard range. In re Pers. Restraint of Hall, No. 75800-0, Order Terminating Review (Wash. Sup. Ct. Aug. 24, 2005). This court’s decision to remand was specifically based on the conclusion that Blakely
A. Under Federal Law, the Trial Court’s Error May Be Deemed Harmless
¶26 In accordance with the instructions of the Supreme Court, I would apply the federal harmless error analysis set forth in Recuenco to the trial court’s error in the present case. In light of the trial court’s finding that either the deliberate cruelty or multiple injuries factor alone supports Hall’s exceptional sentence, I limit my analysis to one of these factors: multiple injuries.
¶27 In Recuenco, 548 U.S. at 222, the Supreme Court made clear that failure to submit a sentencing factor to the jury is subject to harmless error analysis. The Court indicated that, for purposes of harmless error analysis, failure to submit a sentencing factor to the jury is to be treated analogously to omission of an element from the jury’s instructions. Id. at 218-22. The Court repeatedly cited to its decision in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), as the authoritative decision on harmless error analysis of the omission of an element from the jury’s instructions. Recuenco, 548 U.S. at 222.
¶28 In Neder, the test applied by the Court was “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” 527 U.S. at 15 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). The Court elaborated that “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” 527 U.S. at 17. This court has summarized the Neder approach as follows: “When applied to an element omitted from, or misstated in, a jury instruction, the error is harmless if that element is supported by uncontroverted evidence.” State v.
¶29 The uncontroverted evidence introduced at trial established the following facts related to the aggravating factor of multiple injuries: that, as a result of Hall’s repeated blows, Krapf suffered from (1) substantial bruising to her back, (2) a broken jaw, (3) fractured eye sockets, (4) a broken cheekbone, (5) a broken nose, (6) cracked ribs, (7) a punctured lung, and (8) bruising and lacerations along her neck and back. Hall I, 1999 Wash. App. LEXIS 1364, at *3. In light of this evidence, I would easily conclude, beyond a reasonable doubt, that had the jury been given the opportunity, it would have found that Hall inflicted multiple injuries on Krapf. See State v. Dunaway, 109 Wn.2d 207, 219, 743 P.2d 1237, 749 P.2d 160 (1988) (upholding use of multiple injuries aggravator based on victim having been shot twice); State v. Armstrong, 106 Wn.2d 547, 549-50, 723 P.2d 1111 (1986) (upholding use of multiple injuries aggravator based on victim having been injured twice). Accordingly, the trial court’s error in failing to submit the aggravating factor to the jury should be deemed harmless.
B. The Majority Errs in Finding the Trial Court’s Error Cannot Be Harmless under State Law
¶[30 The majority holds that the trial court’s error cannot be deemed harmless under state law. Majority at 348. Specifically, the majority concludes that Washington law did not provide a procedure for a jury to make factual findings as to aggravated factors at the time of Hall’s trial and, thus, it is impossible to conduct a valid harmless error analysis in his case. Id. at 351-52. I disagree with the majority’s conclusion.
¶31 Washington law did provide trial courts with authority to submit aggravating factors to juries at the time of Hall’s trial. Specifically, this authority arose from RCW 2.28.150 and CrR 6.16(b). RCW 2.28.150 provides that “if
¶32 Further, I reject the majority’s conclusion that the version of the SRA in effect at the time of Hall’s trial mandated all exceptional sentences be imposed by the trial court, to the exclusion of the jury. Majority at 352-53. Former RCW 9.94A.120 (1995) merely required the trial court to make written findings if it exercised its authority to impose a sentence outside the standard range. It did not explicitly provide that the trial court, and only the trial court, was permitted to impose such a sentence in all circumstances. To the extent that this court’s decisions in State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007), and Hughes, 154 Wn.2d 118, might suggest a contrary interpretation of the former SRA, I believe those cases were wrongly decided. The authority of this State’s trial courts to employ an alternative exceptional sentencing procedure, under the plain meaning of RCW 2.28.150 and CrR 6.16(b), was a viable and appropriate option after the Blakely decision.
¶33 In sum, I would conclude that the jury in Hall’s case could have made the necessary findings; thus, the error in his case can be deemed harmless. Moreover, in light of the
Conclusion
¶34 Hall committed a heinous crime, causing great multiple injuries for which our law prescribes especially substantial punishment. Though the trial court erred in failing to submit the aggravating factors supporting Hall’s exceptional sentence to the jury, this error does not require Hall’s sentence to be vacated. Rather, his sentence should be upheld in light of the fact that the trial court’s error was harmless given the severe and multiple injuries. Because the majority holds otherwise, I dissent.
The majority vacates Hall’s sentence and remands to ensure resentencing within the standard range. Majority at 355. Because Hall’s offender score is zero, his standard range for first degree assault is 93 to 123 months. State’s Resp. to Personal Restraint Pet., App. F (Order of J. & Sentence). Thus, the maximum sentence the trial court may impose on remand from this court is approximately 10 years. Hall has already served over 10 years. Id. (indicating Hall has been confined since his arrest in 1996).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).