125 Wash. App. 778 | Wash. Ct. App. | 2005
¶1 — Naomi Kinney made repeated attempts to kill Timothy Bowman before she succeeded by shooting him. Kinney pleaded guilty to two counts of attempted murder and one count of murder. Pursuant to RCW 9.94A.589(l)(b), the court determined that the attempts, one by poisoning and one by smothering, were “separate and distinct” and accordingly ordered consecutive sentences. Kinney contends this violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004), by increasing her punishment based on facts not found by a jury. But the relationship between the two
¶2 On March 4, 2002, police conducted a welfare check on Timothy Bowman after he did not appear at work or contact the college where he taught. They found Bowman’s body lying in bed in the house he and Naomi Kinney lived in with their children. The cause of death was a gunshot wound to the head. From neighbors, police learned that Bowman and Kinney had been having domestic difficulties, and Bowman had feared that Kinney was poisoning him.
¶3 Police contacted Kinney. After initially denying involvement, she eventually admitted killing Bowman. She signed a written statement detailing a series of attempts to kill Bowman that had begun on February 14. Prompted by her mother in Oregon, Kinney first tried to kill Bowman by giving him an overdose of sleeping pills in a chocolate heart cookie. When Bowman woke up, unaware of the attempt on his life, Kinney contacted her mother again and, on her advice, unsuccessfully tried to suffocate Bowman with a pillow and a plastic bag later that night. Over the following days, Kinney made additional attempts by using sleeping pills, striking Bowman on the head while he was asleep, and trying to set his truck on fire while he was asleep in it.
¶4 Bowman became suspicious that Kinney was trying to harm him. After further conversations with her mother, Kinney decided to shoot Bowman. On March 3, while he was asleep, Kinney got the children out of the house and shot Bowman while she was talking to her mother on the telephone.
¶5 The State charged Kinney with six counts of attempted first degree murder and one count of first degree murder. Kinney eventually entered guilty pleas to two
Consecutive Sentences for Serious Violent Crimes under Blakely
¶6 RCW 9.94A.589(l)(b) requires consecutive sentences where a defendant is sentenced for two or more serious violent felonies arising from “separate and distinct criminal conduct.”
¶7 In Apprendi, the Supreme Court held a criminal defendant’s Sixth Amendment right to a jury trial mandates 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.” Apprendi, 530 U.S. at 490. In Blakely, the Court clarified that “[t]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence
¶8 We conclude there was no Blakely violation. Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences. Both Blakely and Apprendi involved a conviction for a single count. And the basis for the Blakely and Apprendi holdings does not implicate consecutive sentencing.
¶9 The Apprendi majority relied on Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) to characterize the right at issue as a right to a jury determination of all facts necessary to establish a crime:
We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers’ fears “that the jury right could be lost not only by gross denial, but by erosion.” Jones, 526 U.S. at 247-48. But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt.
Apprendi, 530 U.S. at 483-84 (emphasis added) (footnote omitted).
¶10 That the Apprendi Court was concerned with facts used to enhance a sentence for an individual crime was underscored when the Court held the possibility of a defendant receiving consecutive sentences was irrelevant to determining whether the enhanced sentence on the count in issue was constitutional. “The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.” Apprendi, 530 U.S. at 474.
¶12 We are in agreement with the many jurisdictions that have held that Apprendi does not apply to the decision to impose consecutive sentences. See, e.g., United States v. Harrison, 340 F.3d 497, 500 (8th Cir. 2003); United States v. Lafayette, 337 F.3d 1043, 1049-50 (D.C. Cir. 2003); United States v. Hernandez, 330 F.3d 964, 982 (7th Cir. 2003); United States v. Davis, 329 F.3d 1250, 1254 (11th Cir. 2003); United States v. Chorin, 322 F.3d 274, 278-279 (3d Cir. 2003); People v. Groves, 107 Cal. App. 4th 1227, 1230-31 (2003) ; United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002); United States v. Lott, 310 F.3d 1231, 1242-43 (10th Cir. 2002); State v. Bramlett, 273 Kan. 67, 41 P.3d 796 (2002); United States v. White, 240 F.3d 127, 136 (2d Cir. 2001); People v. Wagener, 752 N.E.2d 430, 441 (Ill. 2001); Cf. State v. Fuerte-Coria, 196 Or. App. 170, 100 P.3d 773 (2004) (claimed Blakely error as to consecutive sentences not reviewable for the first time on appeal because making crimes consecutive does not implicate the relevant statutory maximum in any obvious way).
|13 The consecutive sentencing decision in RCW 9.94A.589 based on a determination that multiple serious
¶14 We affirm Kinney’s sentence.
Agid and Appelwick, JJ., concur.
We reject Kinney’s other contentions in the unpublished portion of this opinion.
Kinney does not contend that the attempted murders constituted the same criminal conduct as the completed crime.
This case does not involve sentences for offenses that are not serious violent crimes and thus may be run consecutively only under the exceptional sentence provisions of the Sentencing Reform Act of 1981, chapter 9.94A RCW. See RCW 9.94A.535, ,589(l)(a).
Because of our resolution of this issue, it is unnecessary to address the State’s alternative contentions that any error was harmless or that by placing the facts before the sentencing court as the basis of her contention that the crimes were not separate conduct, Kinney necessarily stipulated to their accuracy and use.