124 Wash. App. 169 | Wash. Ct. App. | 2004
¶1
—Any fact that increases the penalty for a crime beyond the maximum authorized by the verdict alone — other than the fact of a prior conviction — must be
DISCUSSION
¶2 A jury found Jeffrey Alkire guilty of one count of second degree possession of stolen property and one count of attempting to elude a pursuing police vehicle. At sentencing, Alkire stipulated in writing to the accuracy and completeness of the State’s recitation of his history of convictions. Based on this undisputed history, Alkire’s offender score was 20 for the possession count and 21 for the attempting to elude count. The presumptive standard range sentence for each count was 22 to 29 months, served concurrently. The court ruled the presumptive sentence was “clearly too lenient” and imposed an exceptional sentence of 29 months on each count, to be served consecutively.
¶3 Alkire first contends that in Blakely, the United States Supreme Court declared Washington’s exceptional sentence provisions facially unconstitutional. For the reasons set forth in State v. Harris,
¶4 Anticipating this result, Alkire contends that his sentence is invalid because it required the improper judicial fact finding condemned in Apprendi and Blakely. He argues that whether a sentence is clearly too lenient is a factual determination. In the circumstances presented here, however, the only relevant fact was Alkire’s offender
¶5 Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the court must generally impose a sentence within the standard sentence range established by the legislature.
¶6 If a defendant commits multiple offenses and those are sentenced together, they are counted as current offenses, and the offender score calculation for each crime includes the others,
f8 Given the purpose of the multiple offense policy, the mere presence of multiple offenses does not justify an exceptional sentence on the basis that the sentence is clearly too lenient. Rather, an exceptional sentence is permitted when the rules for sentencing multiple current offenses mean that “some extraordinarily serious harm or culpability resulting from multiple offenses . . . would not otherwise be accounted for in determining the presumptive sentencing range.”
¶10 Alkire does not challenge the accuracy of his offender score calculation, nor suggest that it depends on facts other than past convictions.
¶11 In Apprendi, the Supreme Court ruled 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.”
Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.[18 ]
¶12 In Blakely, the Court clarified the meaning of the term “statutory maximum,”
¶13 Alkire invites this court to abandon the “crumbling foundation” of Almendarez-Torres and the prior conviction
¶14 Finally, Alkire contends that the clearly too lenient determination was improper because it involved the sentencing court’s exercise of discretion. He argues that the court’s weighing of facts in deciding whether to impose an exceptional sentence amounts to improper judicial fact-finding.
¶15 This argument confuses the question of what facts must be found before a particular sentence is authorized, with the question of what punishment should be imposed within the range authorized by those facts. Apprendi and Blakely are concerned only with the former question. The latter involves the exercise of the sentencing court’s discretion. The Apprendi Court confirmed the broad discretion accorded to sentencing judges:
We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing a judgment within statutory limits in the individual case.[24 ]
¶16 The jury’s determination that Alkire committed two new crimes and the numerous prior convictions giving him an offender score not accounted for in the sentencing grid were the only relevant facts necessary to authorize an exceptional sentence under the statute. Once those facts were established, the statutes gave the court discretion to impose a higher penalty. The court merely fixed the punishment within the authorized range. Exercising judicial discretion within the range authorized by law is not fact finding. The exercise of sentencing discretion is not a fact that must be submitted to a jury under Apprendi and Blakely.
¶17 Alkire’s due process and Sixth Amendment rights were not violated, and we affirm his sentence.
Cox, C.J., and Agid, J., concur.
Review granted and case remanded to the Court of Appeals at 154 Wn.2d 1032 (2005).
Apprendi v. New Jersey, 530 U.S. 466, 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).
123 Wn. App. 906, 99 P.3d 902 (2004).
RCW 9.94A.505.
RCW 9.94A.525. Here, the offender score was based exclusively upon Alkire’s current and past convictions.
RCW 9.94A.510.
See Blakely, 542 U.S. 296, 124 S. Ct. at 2537.
RCW 9.94A.589.
RCW 9.94A.589.
State v. Borg, 145 Wn.2d 329, 337, 36 P.3d 546 (2001).
RCW 9.94A.535.
RCW 9.94A.535(2)(i).
State v. Fisher, 108 Wn.2d 419, 428, 739 P.2d 683 (1987).
State v. Smith, 123 Wn.2d 51, 56 n.4, 864 P.2d 1371 (1993).
Id. at 56 (quoting State v. Stephens, 116 Wn.2d 238, 243, 803 P.2d 319 (1991)). We reject Alkire’s contention, expressed for the first time at oral argument, that
See State v. Van Buren, 123 Wn. App. 634, 98 P.3d 1235 (2004) (calculation of offender score is not a question of fact).
530 U.S. at 490 (emphasis added).
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
Apprendi, 530 U.S. at 489-90 (footnote omitted).
“Our precedents make clear, however, 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. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.” Blakely, 542 U.S. 296, 124 S. Ct. at 2537 (citations omitted).
Blakely, 542 U.S. 296, 124 S. Ct. at 2536.
Because the clearly too lenient factor as applied here falls within the narrow exception for prior convictions articulated in Apprendi, we have no occasion to explore the scope of the exception in other contexts. See, e.g., State v. Ortega, 120 Wn. App. 165, 169, 84 P.3d 935 (2004) (relevant qualifying facts of prior conviction were not found by a jury beyond a reasonable doubt and thus could not be used to enhance the penalty for a subsequent conviction under Apprendi).
See Apprendi, 530 U.S. at 499-523
See State v. Smith, 150 Wn.2d 135, 142, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909 (2004); State v. Wheeler, 145 Wn.2d 116, 123, 34 P.3d 799 (2001); see also United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert. denied, 540 U.S. 935 (2003); People v. Thomas, 91 Cal. App. 4th 212, 110 Cal. Rptr. 2d 571 (2001).
Apprendi, 530 U.S. at 481.
See Blakely, 542 U.S. 296, 124 S. Ct. at 2538 n.8.
Alkire also contends that ROW 43.43.754, which required him to provide a biological sample for DNA (deoxyribonucleic acid) identification, violated his Fourth Amendment right against unreasonable searches. This issue is controlled by our recent decision in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004) in which we rejected an identical argument. See also State v. S.S., 122 Wn. App. 725, 94 P.3d 1002 (2004) (cheek swabs are authorized method of collecting biological samples for the DNA data bank).