126 Wash. App. 136 | Wash. Ct. App. | 2005
¶1 “ ‘Other 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.’ ’,
¶2 Jones was convicted of possession of cocaine discovered during a search incident to his arrest for obstructing a law enforcement officer. He had set off a municipal court’s metal detector when he tried to enter the building. He then refused to cooperate with the courthouse guard’s attempt to clear him. Following his conviction, the State calculated Jones’ offender score as 7. This score included one point based on the State’s contention that Jones was on community placement at the time of the offense. At sentencing, Jones expressly challenged the additional point. Relying on
¶3 Thomas was convicted of second degree assault for kicking a man in the head. The sentencing judge accepted the State’s contention that Thomas’ offender score was 8, a score that included one point based on the assertion that he was on community placement at the time of his offense. Unlike Jones, Thomas did not contest the finding. The judge sentenced Thomas to 60 months of confinement to be followed by 18 to 36 months of community custody.
¶4 Jones and Thomas appealed their sentences, each contending that the judicial finding that he was on community placement violated Blakely. We consolidated the cases.
COMMUNITY PLACEMENT AND PRIOR CONVICTIONS
¶5 Jones and Thomas both argue that a jury, not a judge, must make the factual determination beyond a reasonable doubt whether they were on community placement at the time of their crimes. Specifically, they contend that this is a factual determination that is not within the narrow “prior conviction” exception set forth in Blakely. We agree.
¶6 The issue in Blakely was whether a judge’s factual determinations that supported the imposition of an exceptional sentence violated the Sixth Amendment. While standard range sentences, not exceptional sentences, are at issue in these appeals, the principle of Blakely nonetheless applies to the findings at issue here.
¶7 In Blakely, the United States Supreme Court held the high end of a Sentencing Reform Act of 1981, chapter 9.94A RCW, standard range was the “relevant ‘statutory maximum’ ” because that was all that could
¶8 Almendarez-Torres v. United States
¶9 During its next term, the United States Supreme Court discussed Almendarez-Torres in its Jones v. United States
¶11 The Apprendi Court again reviewed AlmendarezTorres. Noting the traditional usage of recidivism facts for sentence enhancements, the procedural safeguards that attended the “fact” of those convictions, and the defendant’s agreement to the accuracy of his criminal history, the Court declined to overrule Almendarez-Torres:
Both the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that AlmendarezTorres did not challenge the accuracy of that “fact” in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a “fact” increasing punishment beyond the maximum of the statutory range ....
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. [11 ]
¶13 The question we must decide is whether the fact that a defendant was on community placement for a prior crime at the time of his present crime is within the narrow prior conviction exception. We conclude that it is not.
¶14 “Community placement” is defined by RCW 9.94A-.030(7) as
that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.[14 ]
¶15 “Community custody,” in turn, is defined in RCW 9.94A.030(5) as
that portion of an offender’s sentence of confinement in lieu of earned release time or imposed pursuant to RCW 9.94A-.505(2)(b), 9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the community subject to controls placed on the offender’s movement and activities by the department....
¶16 The plain words of these statutes make clear that community placement begins after confinement. And
¶17 More importantly, whether one convicted of an offense is on community placement or community custody at the time of the current offense cannot be determined from the fact of a prior conviction. Too many variables are involved.
¶18 For example, a defendant may receive credit for preconviction incarceration, the length of which may not be specified in the judgment and sentence. The defendant may receive additional credit for preconviction incarceration if the local detention facility awarded him good conduct time.
¶19 When community placement ends can also vary. Under RCW 9.94A.715(1), defendants may receive community custody in terms of a range of months “or up to the period of earned release . . . whichever is longer.”
¶20 Jones’ case illustrates the point we make here. At sentencing, both the State and the sentencing judge relied on DOC records, not the judgment and sentence for the prior offense, to determine whether he was on community placement at the time of his current offense.
¶21 In short, whether one convicted of a crime is on community placement at the time of the offense is a factual determination subject to the Sixth Amendment requirement that a jury make the determination beyond a reasonable doubt.
¶22 Recognizing that the community placement question does not strictly come within the plainly stated exception in Apprendi and Blakely, the State takes the position that the exception actually applies to “the broader issue of recidivism” and “recidivism findings!.]” We disagree.
¶23 The State quotes the description in the majority opinion in Ring v. Arizona
¶24 We also reject the State’s reliance on the language in Apprendi about the use of traditional sentencing factors. Such a characterization of what is at issue does nothing to overcome the clear dictates of Apprendi and its progeny.
¶25 The State also cites a number of out-of-state cases to support its contention that the exception is not so narrow that a court may only find that a defendant had a prior conviction without generally considering facts surrounding it.
¶26 The chief problem with the State’s approach is that it offends the basic reason for the fundamental rule of Apprendi and Blakely: ensuring that the procedural protections afforded by the Sixth Amendment apply to factual determinations that may increase a sentence. No such safeguards exist here for the determination of whether the defendants were on community placement at the times of their offenses. As Division Three of this court recognized in State v. Ortega,
¶27 The State’s unsupported contention that “[a] defendant’s status on community placement bears the same certainty and procedural safeguards as the fact of the
¶28 The State also cites State v. Van Buren,
¶29 In Van Burén, the court considered an exceptional sentence based on the stipulated finding that the defendant had an offender score greater than 9 and had committed more than one offense. With such a score, an exceptional sentence was justified because otherwise the defendant would receive a “free crime.”
¶30 The determinations by the sentencing judges that the defendants were on community placement at the times of the current offenses do not fall within the narrow exception for the fact of a prior conviction stated by the Supreme Court in Blakely.
HARMLESS ERROR
¶31 The State argues that any error under Blakely was harmless beyond a reasonable doubt, correctly noting
¶32 In State v. Thomas,
¶33 We reverse the sentences in these cases and remand for resentencing. The balance of this opinion has no precedential value. Accordingly, pursuant to RCW 2.06.040, it shall not be published.
Grosse and Becker, JJ., concur.
Review granted at 155 Wn.2d 1017 (2005).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 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).
We grant Jones’ motion to adopt and rely upon Thomas’ reply brief. We also grant the State’s motion to file a “sur-reply” in answer to the arguments raised for the first time in Thomas’ reply brief.
Blakely, 542 U.S. at 303.
“The offender score is the sum of points accrued under this section rounded down to the nearest whole number .... (17) If the present conviction is for an offense committed while the offender was 'under community placement, add one point.”
523 U.S. 224, 247, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).
530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Apprendi, 530 U.S. at 488-90.
Apprendi, 530 U.S. at 488-90 (footnotes omitted).
See Apprendi, 530 U.S. at 520 (Thomas, J. concurring).
See State v. Alkire, 124 Wn. App. 169, 176-78, 100 P.3d 837, 841 (2004).
(Emphasis added.)
See State v. Reed, 116 Wn. App. 418, 423-24, 66 P.3d 646, review denied, 150 Wn.2d 1013 (2003); State v. Crandall, 117 Wn. App. 448, 71 P.3d 701 (2003).
See In re Pers. Restraint of Mota, 114 Wn.2d 465, 474, 788 P.2d 538 (1990) (equal protection requires good-time credit be granted for presentence incarceration).
RCW 9.94A.715(1) (sex offenses, violent offenses, any crime against a person or any felony drug offense).
See, e.g., WAC 437-20-010 (24-48 months presumptive range of community custody for serious violent offenses).
See State v. Pharris, 120 Wn. App. 661, 665, 86 P.3d 815 (2004).
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
Ring, 536 U.S. at 597 n.4.
Blakely, 542 U.S. at 301.
Apprendi, 530 U.S. at 490.
See, e.g., People v. George, 122 Cal. App. 4th 419, 18 Cal. Rptr. 3d 651 (2004); State v. Abdullah, 372 N.J. Super. 252, 858 A.2d 19, cert. granted, 863 A.2d 365 (N.J. 2004); United States v. Palomino-Rivera, 258 F.3d 656 (7th Cir. 2001); Jones v. State, 138 Md. App. 12, 769 A.2d 1015 (2001); Carson v. State, 813 N.E.2d 1187 (Ind. Ct. App. 2004); People v. Thomas, 91 Cal. App. 4th 212, 110 Cal. Rptr. 2d 571 (2001); but see State v. Perez, 196 Or. App. 364, 102 P.3d 705 (2004).
120 Wn. App. 165, 84 P.3d 935 (2004).
Ortega, 120 Wn. App. at 172.
123 Wn. App. 634, 98 P.3d 1235 (2004).
Van Buren, 123 Wn. App. at 646.
Van Buren, 123 Wn. App. at 652; see State v. Stephens, 116 Wn.2d 238, 803 P.2d 319 (1991); State v. Smith, 123 Wn.2d 51, 864 P.2d 1371 (1993).
527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (holding omission of “materiality” element from jury instructions was harmless). See, e.g., United States v. Joyner, 313 F.3d 40 (2d Cir. 2002); United States v. Matthews, 312 F.3d 652 (5th Cir. 2002); United States v. Zidell, 323 F.3d 412 (6th Cir.), cert. denied, 540 U.S. 824 (2003); United States v. Nance, 236 F.3d 820, 825-26 (7th Cir. 2000), cert. denied, 534 U.S. 832 (2001); United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002); United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.), cert. denied, 533 U.S. 922 (2001); People v. Thurow, 203 Ill. 2d 352, 786 N.E.2d 1019, 272 Ill. Dec. 185 (2003); but see State v. Fero, 125 Wn. App. 84, 104 P.3d 49 (2005) (Blakely error “structural” and therefore not subject to harmless error analysis); State v. Allen, 166 N.C. App. 139, 149, 601 S.E.2d 299, 306 (2004) (Blakely error not harmless based on pre-Apprendi North Carolina authority).
535 U.S. 625, 632-33, 122 S. Ct. 1781, 1786, 152 L. Ed. 2d 860 (2002) (holding that Apprendi error did not “seriously affect the fairness, integrity or public reputation of judicial proceedings”).
150 Wn.2d 821, 83 P.3d 970 (2004).
Thomas, 150 Wn.2d at 845.
Thomas, 150 Wn.2d at 847.
Thomas, 150 Wn.2d at 849 (emphasis added).
Thomas, 150 Wn.2d at 848-49.
Accordingly, it is unnecessary to discuss the recent decision from a divided panel of Division Two of this court that addresses the harmless error question without considering Thomas. See State v. Fero, 125 Wn. App. 84, 104 P.3d 49 (2005).