In this appeal, defendant challenges the trial court’s imposition of departure sentences and a compensatory fine, arguing, among other things, that the court erred in concluding that he waived the right to a jury trial on the facts pertinent to sentencing. 1 We conclude that, because defendant was not aware that he had the right to have a jury determine sentencing facts, he did not validly waive the right and, consequently, that the imposition of departure sentences based on facts found by the trial court violated his jury trial right. Accordingly, we remand for resentencing.
Defendant entered a plea agreement in which he agreed to plead guilty to three counts of using a child in a display of sexually explicit conduct and one count each of witness tampering and coercion. As part of the plea agreement, the state dismissed three counts of encouraging child sexual abuse and one count of witness tampering. The plea agreement indicated that defendant understood that he was waiving the right to a “speedy and public trial by jury at which the State would be required to prove my guilt beyond a reasonable doubt [.]” In the negotiations that led to defendant’s plea agreement, the prosecutor made clear that she intended to seek departure sentences on all of the charges to which defendant would plead guilty.
After defendant entered the guilty plea, but before sentencing, the United States Supreme Court announced its decision in
Blakely v. Washington,
On appeal, defendant challenges the departure sentences and the compensatory fine, arguing that, when he entered the plea agreement, he was not aware that the jury trial right extended to sentencing and, consequently, that he did not knowingly waive the right with respect to sentencing. Defendant points out that the plea petition referred to the jury trial right only with respect to guilt, not to sentencing. He asserts that nothing in the record indicates that he was aware that the jury trial right extended to sentencing. Defendant also argues that, in all events, the trial court’s reliance on two departure factors that are not enumerated in the sentencing guidelines violates the prohibition against ex post facto laws and bills of attainder.
In response to defendant’s argument concerning his jury trial right, the state argues, among other things, that the trial court did not have a duty to make a record as to whether defendant was aware that the jury trial right extended to sentencing and, thus, that it is of no moment that the record does not establish that fact. 2
The state’s argument misses the point. To be sure, we have previously declined to reverse a trial court on the ground that it did not inquire on the record as to the validity of a waiver of the right to jury trial.
See State v. Wigglesworth,
The state also argues that this is not a case in which a waiver was inferred from a silent record, asserting that the plea agreement supports the trial court’s finding of a waiver of the right to a jury trial on sentencing facts. Again, the state’s argument misses the point. There is no disputing that counsel told the trial court unequivocally that defendant entered the plea with the knowledge that the court would decide facts pertinent to sentencing. The question is not whether defendant knew that the court would decide the facts, but whether he knew that he had the right to have a jury decide them and therefore validly waived the right.
“A waiver is an intentional relinquishment or abandonment of a known right or privilege.”
The record does not demonstrate that, when defendant entered his guilty plea, he knew that he had the right to have a jury determine aggravating sentencing factors. The plea agreement indicates only that he knew that he had the right to a trial by jury at which the state would be required to prove his guilt. Neither the plea agreement nor anything else in the record supports the inference that defendant was aware that the jury trial right extended to sentencing facts. If anything, the record supports the opposite conclusion: Defendant’s counsel stated at the sentencing hearing that he never discussed the issue with defendant because, before the Supreme Court announced its decision in Blakely, he had operated under the assumption that the right did not extend to sentencing.
In short, nothing in the record supports the conclusion that defendant validly waived the right to have a jury determine the facts on which his departure sentences are based. It follows that the trial court lacked authority to impose departure sentences and that the case must be remanded for resentencing. In light of that disposition, we do not address defendant’s remaining arguments or his assignment of error concerning the imposition of a compensatory fine.
Sentences vacated; remanded for resentencing; otherwise affirmed.
Notes
Defendant also argues that the trial court erroneously denied him eligibility for early release and other programs. The state correctly points out that, although the court initially stated that it would deny such eligibility, it ultimately did not do so. Accordingly, we reject defendant’s argument without farther discussion.
The state also argues that defendant’s challenge to his sentences is not reviewable. We reject that argument without discussion.
There are, of course, exceptions to that rule. In a collateral attack on a conviction, a valid waiver can be inferred from a silent record; the burden is on the defendant to establish that the waiver was not valid.
State v. Probst,
Those cases do not purport to effect a general retreat from the proposition that courts will not infer a waiver of fundamental rights from a silent record. In Probst, the court expressly distinguished the case from Meyrick on the ground that Probst involved a collateral attack on a prior conviction. And in Gornick and Perez, the court focused exclusively on the analysis of competing inferences in the context of evaluating plain error.