State v. ClarkeState v. Clarke
¶ 1 After two juries convicted John Mark Clarke of two counts of second degree rape, the sentencing court imposed a maximum sentence of life imprisonment as required by statute. The sentencing court also imposed an “exceptional minimum sentence,” which is a sentence in excess of the standard sentence range for the crimes charged, based on two aggravating factors. Clarke challenges the constitutionality of his exceptional minimum sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We hold that Blakely does not apply to an exceptional minimum sentence imposed under
I. FACTUAL AND PROCEDURAL HISTORY
¶ 2 The King County prosecuting attorney charged the petitioner, John Mark Clarke, with one count of second degree rape for a sexual assault he committed on December 12, 2001. On February 4, 2002, Clarke failed to appear for his arraignment on that charge and that evening he committed a second sexual assault. In a second amended information, the prosecuting attorney charged Clarke with two counts of second degree rape and two other crimes not relevant here. The trial court severed the two rape counts for trial, and separate juries convicted Clarke on each count of second degree rape.
¶ 3 The sentencing court sentenced Clarke under
¶ 4 Clarke appealed his exceptional minimum sentence to Division One of the Court of Appeals. In June 2004, while Clarke‘s appeal was pending, the United States Supreme Court decided Blakely, and the Court of Appeals requested supplemental briefing on the exceptional minimum sentence issue. The Court of Appeals held that the trial court‘s finding of aggravating factors in order to impose Clarke‘s exceptional minimum sentence did not violate the Sixth Amendment to the United States Constitution under Blakely because the exceptional minimum
¶ 5 Additionally, the court determined that even if Blakely did apply to exceptional minimum terms, Clarke‘s misdemeanors were not facts that a jury must find under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Clarke, 124 Wash.App. at 907, 103 P.3d 262. As a result, the court held that the “number and nature” of Clarke‘s prior convictions “provided substantial and compelling reasons” supporting the exceptional minimum sentence. Id. The court did not reach the issue of whether the multiple offense policy of the SRA violated Blakely.
¶ 6 Prior to Division One‘s decision in Clarke, Division Two of the Court of Appeals reached the opposite conclusion and held that imposing exceptional minimum sentences based on facts not found by a jury violates the Sixth Amendment under Blakely. State v. Borboa, 124 Wash.App. 779, 102 P.3d 183 (2004), review granted, 154 Wash.2d 1020, 116 P.3d 398 (2005). We accepted review to determine the applicability of Blakely to exceptional minimum sentences imposed under
II. ISSUES
A. Whether Blakely applies to an exceptional minimum sentence imposed under
B. If Blakely applies to exceptional minimum sentences, whether the sentencing court found aggravating factors to support an exceptional sentence in violation of the Sixth Amendment.
C. Whether the aggravating factors provided substantial and compelling reasons to impose an exceptional sentence.
III. ANALYSIS
A. Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed
¶ 7 The Sixth Amendment guarantees a criminal defendant the right to “a speedy and public trial, by an impartial jury.”
¶ 8 In order to violate the Sixth Amendment under Blakely, Clarke‘s exceptional minimum sentence must exceed the relevant statutory maximum. Clarke argues the relevant statutory maximum in his case is the high end of the standard sentence range, or in other words, his minimum sentence. The State argues that the relevant statutory maximum is the mandatory life sentence required by
¶ 9 We review issues of statutory construction and constitutional challenges de novo. City of Redmond v. Moore, 151 Wash.2d 664, 668, 91 P.3d 875 (2004) (citing State v. J.M., 144 Wash.2d 472, 480, 28 P.3d 720 (2001); Weden v. San Juan County, 135 Wash.2d 678, 693, 958 P.2d 273 (1998)).
1. Sentences imposed under RCW 9.94A. 712 are indeterminate
¶ 10
¶ 11 Under
¶ 12 Legislative history indicates that
¶ 13 Additionally, the structure of the sentencing regime the legislature enacted provides proof that
¶ 14 Moreover, end of sentence review under
¶ 15 If the ISRB determines that the offender should not be released, the ISRB imposes a new minimum sentence, which cannot exceed two years.
¶ 16 Clarke argues that
¶ 17 By enacting
2. Blakely does not prohibit judicial factfinding when imposing a minimum sentence
¶ 18 Because Clarke is serving an indeterminate life sentence under
¶ 19 The Sixth Amendment does not bar judicial fact-finding related to a minimum sentence that does not exceed the relevant statutory maximum.4 Prior to Apprendi and
¶ 20 When the Court decided Apprendi, it specifically distinguished McMillan. “We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury‘s verdict—a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Two years later, in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), a plurality of the Court further clarified the distinction between improper fact-finding related to maximum sentences and permissible fact-finding related to minimum sentences.
McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant‘s sentence beyond the maximum authorized by the jury‘s verdict would have been considered an element of an aggravated crime—and thus the domain of the jury— by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury‘s verdict has authorized the judge to impose the minimum with or without the finding. As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution.5
¶ 21 In Blakely, the Court clearly stated that judicial fact-finding is not improper in the context of indeterminate sentencing because the offender has no right to a lesser sentence than his maximum sentence.
Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail.
Blakely, 542 U.S. at 309, 124 S.Ct. 2531. When the juries convicted Clarke, he knew that he risked life imprisonment and had no expectation of earlier release. As a result, judicial fact-finding that served to increase Clarke‘s minimum sentence was not improper
¶ 22 In so holding, we explicitly reject Division Two‘s analysis in Borboa that Apprendi and Blakely “require that the jury find each fact needed to support the sentence that the defendant actually must serve.” Borboa, 124 Wash.App. at 787, 102 P.3d 183. This is not the rule developed by Apprendi and its progeny. As Blakely made clear, judicial fact-finding may not increase the penalty for a crime beyond the “maximum” sentence a judge may impose ”without any additional findings.”6 Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531. This maximum sentence is distinct from the sentence a defendant may actually serve. If a jury had to find each fact needed to support the sentence that offenders actually must serve, then offenders would have the right to have a jury make release determinations. The legislature has not created a system for empaneling juries to make such determinations, and Blakely does not compel the design of such a system.
¶ 23 Although we reject Clarke‘s challenge to his exceptional minimum sentence under the Sixth Amendment, amicus curiae Washington Association of Criminal Defense Lawyers (WACDL) urges this court to reverse his sentence under the Washington Constitution. WACDL argues that Washington Constitution article I, section 21 provides greater protection of a defendant‘s right to a jury trial than does the federal constitution. We decline to consider this argument because Clarke did not brief the issue, and this court does not consider arguments raised first and only by an amicus. Mains Farm Homeowners Ass‘n v. Worthington, 121 Wash.2d 810, 827, 854 P.2d 1072 (1993).
¶ 24 As a result, we reject Clarke‘s constitutional challenge to his exceptional minimum sentence because we hold that Blakely does not apply to exceptional minimum sentences imposed under
B. The sentencing court did not find aggravating factors in violation of the Sixth Amendment
¶ 25 Because we hold that Blakely does not apply to Clarke‘s exceptional minimum sentence, we need not reach the issue of whether the specific fact-finding performed by the sentencing court violated the Sixth Amendment in this case. While the particular aggravating factors found here may violate the constitution in other contexts, we hold that Blakely does not bar judicial fact-finding to support an exceptional minimum sentence imposed under
C. Substantial and compelling reasons existed to impose an exceptional minimum sentence
¶ 26 In addition to challenging the constitutionality of his exceptional minimum sentence under Blakely, Clarke also argues that the aggravating factors used did not provide substantial and compelling reasons for the exceptional minimum sentence.
An exceptional sentence upward may be reversed on appeal if (1) under a clearly erroneous standard, the trial court‘s reasons for imposing the sentence are not supported by the record, (2) those reasons do not justify the exceptional sentence as a matter of law, or (3) under an abuse of discretion standard, the exceptional sentence is clearly too excessive or clearly too lenient.
¶ 27 The sentencing court determined that two aggravating factors supported an exceptional sentence upward: Clarke‘s prior unscored misdemeanors and the operation of the multiple offense policy. The court held that each of the aggravating factors standing alone was sufficient justification for the exceptional sentence. Therefore, because we hold that Clarke‘s prior misdemeanors provide a substantial and compelling reason for the exceptional sentence, we need not consider whether the operation of the multiple offense policy also provides a substantial and compelling reason.
¶ 28 First, the sentencing court‘s reasons for imposing an exceptional sentence upward are supported by the record. The State introduced judgments and sentences for six prior misdemeanor convictions and Clarke did not object to the admission of any of those documents. Furthermore, Clarke himself acknowledged that he possessed five prior convictions for assault. Thus, the record clearly supports the sentencing court‘s finding of an aggravating factor based on Clarke‘s misdemeanors.
¶ 29 Second, the misdemeanors justify the exceptional sentence as a matter of law. Former
¶ 30 Finally, given the quantity and violent nature of the misdemeanors, in conjunction with Clarke‘s two sexual assault convictions, we cannot say that the sentencing court abused its discretion by imposing an exceptional sentence upward. A 204 month exceptional sentence is not “clearly too excessive,” particularly when
IV. CONCLUSION
¶ 31 We hold that, under the indeterminate sentencing scheme of
Concurring: C. JOHNSON, MADSEN, BRIDGE, OWENS, CHAMBERS and J.M. JOHNSON, JJ.
SANDERS, J. (dissenting).
¶ 32 The majority concludes a judge may impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant. I disagree. The Sixth Amendment prohibits a judge from imposing a penalty not authorized by the facts found by the jury or admitted by the defendant. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2538, 159 L.Ed.2d 403 (2004). An exceptional minimum sentence is a penalty. And under Washington law, a judge may impose an exceptional minimum sentence only if an aggravating factor exists. Consequently,
¶ 33 Washington‘s indeterminate sentencing scheme requires a sentencing court to impose a maximum and a minimum term. See
¶ 34 John Mark Clarke was convicted of two counts of second degree rape. An offender convicted of second degree rape must receive an indeterminate sentence. See
¶ 35 The Sixth Amendment guarantees a criminal defendant the right to a jury trial.
¶ 36 An exceptional minimum sentence is a punishment. And Washington law authorizes a judge to impose an exceptional minimum sentence only if an aggravating factor exists. See
¶ 37 The majority contends Clarke‘s exceptional minimum sentence “is irrelevant under Blakely analysis because the relevant statutory maximum for Apprendi purposes is life imprisonment.” Majority at 192. The majority is incorrect. Under Blakely, a court cannot impose any punishment not authorized by the jury verdict or the defendant‘s admissions. “A defendant may not be `exposed... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.‘” Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (quoting Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The “relevant statutory maximum” is the “maximum punishment” the sentencing court is authorized to impose “[b]ased solely on the jury‘s verdict finding.” Ring, 536 U.S. at 597, 122 S.Ct. 2428. In other words, the “relevant statutory maximum” was a maximum term of life imprisonment and a minimum term of 136 months.
¶ 38 Apparently, the majority believes an exceptional minimum sentence is not a punishment. I find this incredible. Conditional release is no guaranty. But it is a prisoner‘s equivalent to Pascal‘s Wager: “If you gain, you gain all; if you lose, you lose nothing.” Blaise Pascal, Pensées (1670). A prisoner treasures such hope. Any delay is punishment of the keenest sort.
¶ 39 Indeed, the Sixth Amendment may permit a court to impose a mandatory minimum sentence on the basis of judicial fact-finding.
¶ 40 The mandatory minimum sentencing scheme at issue in McMillan v. Pennsylvania passed Sixth Amendment muster because “it operates solely to limit the sentencing court‘s discretion in selecting a penalty within the range already available to it without the special finding.” McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Likewise, the court upheld a mandatory minimum sentencing scheme in Harris v. United States because it “does not authorize the judge to impose `steeply higher penalties‘—or higher penalties at all—once the facts in question are found.” Harris v. United States, 536 U.S. 545, 554, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Here, the same is not the case.
¶ 41 The facts found by the jury did not authorize the sentencing court to impose an exceptional minimum sentence. The jury found no aggravating factors. And under Washington law, a court cannot impose an exceptional minimum sentence unless an aggravating factor exists. Because an exceptional minimum sentence is indisputably a punishment, the Sixth Amendment prohibited the sentencing court from finding the aggravating factors necessary to support Clarke‘s exceptional minimum sentence.
¶ 42 Accordingly, I dissent.
Dissenting: ALEXANDER, C.J.