State v. MonroeState v. Monroe
¶ 1 Gregory Edward Monroe pleaded guilty to two counts of first degree rape, one count of first degree burglary with sexual motivation, five counts of first degree kidnapping, and one count of second degree assault. The sentencing guidelines of
¶ 2 Monroe stipulated that the court could consider the probable cause statement and any discovery in the case as the material
¶ 3 This appeal requires that we address two issues. First, did the deputy prosecutor violate the plea agreement when urging the sentencing court to impose a minimum sentence of 511 months? This panel unanimously agrees that the answer to this question is no. Secondly, under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is a defendant entitled to have a jury find disputed facts beyond a reasonable doubt before the sentencing court can use such facts to impose a minimum term above his standard range under
ANALYSIS
PROSECUTORIAL MISCONDUCT
¶ 4 Monroe first contends that this case should be remanded so he can withdraw his guilty plea or be resentenced because the prosecutor‘s comments and conduct during sentencing violated his plea agreement with the State. Although the prosecutor made the agreed-upon recommendation for a determinate minimum term of 511 months, Monroe asserts that other statements made by the prosecutor undercut that recommendation and implicitly endorsed the imposition of an exceptional sentence. These statements included: (1) that the facts would have supported additional rape counts had the case gone to trial; (2) that Monroe‘s crimes were “one of the most significant crime sprees” the prosecutor could remember; (3) the prosecutor‘s opinion that there are “murder cases that have less victim impact than what happened in this case;” and (4) that Monroe had “his way with” the victims. Report of Proceedings (April 7, 2003) at 6, 7.
¶ 5 It is well established that the State must exercise good faith in fulfilling the promises that led a defendant to enter into a plea agreement. State v. Sledge, 133 Wash.2d 828, 838-39, 947 P.2d 1199 (1997). The prosecutor may not “undercut the terms of the agreement explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement.” Sledge, 133 Wash.2d at 840, 947 P.2d 1199. We review the prosecutor‘s actions and comments objectively to determine whether the State has breached a plea agreement. State v. Jerde, 93 Wash.App. 774, 780, 970 P.2d 781, review denied, 138 Wash.2d 1002, 984 P.2d 1033 (1999).
¶ 6 Our review of the record establishes that the deputy prosecutor in this case did not violate the plea agreement. In exchange for Monroe‘s guilty pleas, the State agreed to recommend that the sentencing court set Monroe‘s determinate minimum term at 511 months, the top of Monroe‘s standard range. The State‘s argument in support of that recommendation necessarily included facts sufficient to justify the court in
BLAKELY ISSUES
¶ 7 Monroe next asserts that he was entitled to have a jury, rather than the superior court, resolve disputed facts that supported setting determinate minimum terms above the standard range for each crime. In support of this argument, Monroe cites Blakely, 124 S.Ct. at 2536 (holding that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory sentencing range, must be submitted to a jury and proved beyond a reasonable doubt). The State asks us to reject Monroe‘s Blakely argument for two reasons. First, the State asserts that Blakely does not apply in circumstances such as those set forth in
¶ 8 We address first the State‘s argument that Monroe waived his right to a sentencing jury.
WAIVER OF RIGHT TO JURY TRIAL AT SENTENCING
¶ 9 After Blakely, where a defendant has pleaded guilty, the State may seek judicial sentence enhancements only if the defendant has either stipulated to the relevant facts or consented to judicial fact-finding. If Monroe had been made aware of his rights under Blakely, his stipulation permitting the sentencing court to consider the probable cause statement and any discovery in the case as material facts would have provided sufficient evidence that Monroe‘s crimes involved deliberate cruelty, sophisticated planning, and particularly vulnerable victims. These aggravating factors would support imposing a determinate minimum term in excess of Monroe‘s standard range sentence of 138-184 months for count I and 93-123 months for count II.2 But to be valid, a waiver must be a voluntary relinquishment of a known right. State v. Thang, 145 Wash.2d 630, 648, 41 P.3d 1159 (2002). When Monroe consented to judicial fact-finding, Blakely had not been issued3 and it was
APPLICATION OF BLAKELY TO SENTENCES UNDER RCW 9.94A.712
¶ 10 The next issue concerns whether a defendant is entitled to have a jury find disputed facts beyond a reasonable doubt before the sentencing court can use such facts to impose a minimum term above his standard range under
MONROE‘S MAXIMUM TERM
¶ 11 In this appeal, the State argues that under McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), Monroe‘s Sixth Amendment right to have all disputed facts necessary to support maximum confinement admitted or proved to a jury beyond a reasonable doubt was satisfied. Monroe‘s maximum life sentence term is an indeterminate sentence. As such, McMillan and Harris support the State‘s position that Blakely does not apply to indeterminate sentences. See State v. Clarke, 124 Wash.App. 893, 103 P.3d 262, 265-66 (2004). McMillan and Harris remain good law in spite of their tension with Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
¶ 12 In McMillan, the Supreme Court upheld a Pennsylvania statute that required a mandatory minimum sentence of five years for certain specified crimes if the sentencing judge found by a preponderance of the evidence that the defendant had “visibly possessed a firearm” during the commission of the offense. 477 U.S. at 81, 106 S.Ct. 2411. The five-year minimum did not exceed the maximum sentence authorized for the specified crimes. In rejecting the argument that due process required the trial judge to make the firearm finding beyond a reasonable doubt, the McMillan court upheld the statute because it “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; 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 of visible possession of a firearm.” McMillan, 477 U.S. at 87-88, 106 S.Ct. 2411.
¶ 13 In Harris, the Court attempted to address whether McMillan remained good law after its decision in Apprendi, which held unconstitutional a statute that permitted a trial judge, rather than the jury, to find a fact which doubled the judge‘s sentencing jurisdiction. The statute at issue in Harris required the sentencing judge to impose a set minimum term if the judge found that the defendant had displayed a firearm during the commission of the crime. A plurality of four justices concluded that Apprendi and McMillan were compatible:
In light of the foregoing, it is not surprising that the decisions for the Court in both Apprendi and Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),] insisted that they were consistent with McMillan — and that a distinction could be drawn between facts increasing the defendant‘s minimum sentence and facts extending the sentence beyond the statutory maximum. That distinction may continue to stand. The
factual finding in Apprendi extended the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury. The finding in McMillan restrained the judge‘s power, limiting his or her choices within the authorized range. It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be.
Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis.
Harris, 536 U.S. at 566-67, 122 S.Ct. 2406 (citations omitted). Another plurality of four justices stated that McMillan should be overruled because it could not be squared with Apprendi. Harris, 536 U.S. at 572-73, 122 S.Ct. 2406 (Thomas, J., dissenting, joined by Stevens, Souter, and Ginsburg, JJ.). The ninth justice could not “easily distinguish Apprendi” or “agree with” the first plurality‘s attempt to do so, but he joined with that plurality to affirm because he had dissented in Apprendi and could not “yet accept its rule.” Harris, 536 U.S. at 569, 122 S.Ct. 2406 (Breyer, J., concurring in part and concurring in the judgment).4
¶ 14 The legislature defines crimes and fixes penalties. State v. Manussier, 129 Wash.2d 652, 667, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201, 117 S.Ct. 1563, 137 L.Ed.2d 709 (1997); State v. Calle, 125 Wash.2d 769, 776, 888 P.2d 155 (1995). After Monroe pleaded guilty to two counts of first degree rape and one count of first degree burglary with sexual motivation,
¶ 15 Here, Monroe waived his right to have a jury determine his guilt by knowingly and voluntarily pleading guilty to the crimes with which he had been charged. State v. Tourtellotte, 88 Wash.2d 579, 583, 564 P.2d 799 (1977). Monroe‘s convictions were based on this unchallenged and constitutionally valid plea and he was sentenced to life as
MONROE‘S MINIMUM TERM
¶ 16 Although Monroe‘s right to have all facts necessary to support the mandatory maximum term of life were proved by Monroe‘s knowing and voluntary plea and waiver of his right to a jury trial, the State‘s position that Blakely does not apply to setting Monroe‘s minimum term under
¶ 17 But I diverge from Clarke with respect to the superior court‘s setting of the minimum term. Our Supreme Court has held that any inmate serving a pre-Sentencing Reform Act (SRA) life sentence can never establish that he or she is receiving more punishment under the SRA because the Independent Sentencing Review Board (ISRB) has discretion to impose a minimum sentence of life. In re Personal Restraint of Stanphill, 134 Wash.2d 165, 949 P.2d 365 (1998). But it is precisely because the statutes governing imposition of Monroe‘s sentence do not grant the sentencing court (
SENTENCING JURY REQUIRED UNDER RCW 9.94A.712(3) AND BLAKELY
¶ 18 Blakely‘s procedural6 jury trial requirements are satisfied by Monroe‘s plea and the sentencing court here was mandated by
¶ 19 This analysis of
¶ 20
[T]he court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
The statutory maximum sentence for first degree rape is life in prison.
¶ 21 But
¶ 22
¶ 23 In Apprendi, the United States Supreme Court addressed a statute that doubled the superior court‘s sentencing jurisdiction when the trial judge found by a preponderance of the evidence that the crime the defendant had committed was a hate crime. In striking down the statute, Apprendi held 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.” 530 U.S. at 490, 120 S.Ct. 2348. In Blakely, the Court extended Apprendi‘s jury trial requirement to facts, other than a defendant‘s prior convictions, used by the sentencing judge to impose sentences below the jurisdictional statutory maximum but in excess of Washington‘s standard sentencing ranges.
¶ 24 Thus, after Blakely, an offender is not “otherwise eligible” to receive a sentence outside the standard sentence range under
¶ 25 Under
¶ 26 Monroe would not otherwise be eligible to receive a sentence in excess of the standard range until a jury finds the disputed aggravating facts on which the sentencing judge relied beyond a reasonable doubt — deliberate cruelty, victim vulnerability, and criminal sophistication.10 Therefore, on this record,
¶ 27 Monroe waived his right to have a jury determine his guilt by knowingly and voluntarily pleading guilty to the crimes with which he had been charged. Tourtellotte, 88 Wash.2d at 583, 564 P.2d 799. Monroe‘s convictions were based on his valid guilty plea. But, under the plain language of
HOUGHTON, J., concurring.
¶ 28 I join Judge Quinn-Brintnall‘s analysis on the prosecutorial misconduct and waiver issues. As to the section entitled “Application of Blakely to Sentences under
¶ 29 First, I disagree with Judge Quinn-Brintnall‘s description of Blakely errors as “procedural.” Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Judge Quinn-Brintnall‘s opinion at 455. As we held in State v. Fero, Blakely errors are structural and thus not subject to the harmless error analysis. Fero, 125 Wash.App. 84, 104 P.3d 49, 58 (2005). This holding derived from the language of Blakely itself, which characterized the right to a trial by jury as “no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” Blakely, 124 S.Ct. at 2538-39.
¶ 30 Washington case law also supports application of the structural error doctrine. State v. Thomas, 150 Wash.2d 821, 849, 83 P.3d 970 (2004); see also State v. Jones, ___ Wash.App. ___, ___, 107 P.3d 755, 2005 WL 458744, at * 5 (2005) (Division One opinion rejecting the State‘s harmless error argument under Thomas, but stating that the claim “is more properly directed to the state supreme court“). In Thomas, the Court held that erroneous “to convict” instructions are generally subject to the harmless error analysis. 150 Wash.2d at 849, 83 P.3d 970. But “a harmless error analysis of an erroneous jury instruction may not be available to uphold an aggravated conviction or sentence under Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] and Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)].” Thomas, 150 Wash.2d at 849, 83 P.3d 970.
¶ 31 Blakely and Thomas indicate that when the trial court finds aggravating factors that increase the penalty beyond the statutory maximum, it commits a structural error warranting automatic reversal.
¶ 32 Second, I disagree with Judge Quinn-Brintnall‘s statement that the exceptional
¶ 33 As defined in Blakely, the “statutory maximum” 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.” 124 S.Ct. at 2537 (emphasis omitted). Otherwise stated, the 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.” Blakely, 124 S.Ct. at 2537 (emphasis omitted).
¶ 34 Under
¶ 35 Blakely teaches that before the trial court imposes an exceptional sentence, the jury must find the necessary facts beyond a reasonable doubt, or the defendant himself must admit those facts. That was not done here. For these reasons, I concur in the result reached by Judge Quinn-Brintnall.
BRIDGEWATER, J. (concurring in part, dissenting in part).
¶ 36 I concur in Chief Judge Quinn-Brintnall‘s opinion that there was no prosecutorial misconduct. But, I respectfully dissent regarding the application of Blakely v. Washington, 342 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to
I. RCW 9.94A.712
¶ 37 The trial court‘s sentence was based upon
(1) An offender who is not a persistent offender shall be sentenced under this section if the offender:
(a) Is convicted of:
(i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;
(ii) Any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree; ...
....
(3) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
¶ 38 In this case, the sentencing court, on a plea of guilty to the two first degree rapes, sentenced Monroe to life and then proceeded to set minimum terms. For convenience, we refer to that as a “determinate minimum sentence.” The import of this becomes more clear because
II. Blakely
¶ 39 Monroe contends that his exceptional sentences for counts I and II violate the Sixth Amendment. The State responds that Monroe‘s sentences should be upheld because Blakely does not apply to sentences imposed under
¶ 40 In Blakely, the United States Supreme Court addressed former RCW 9.94A.390 (1991), recodified as
¶ 41 Here, in accordance with
¶ 42
¶ 43
¶ 44 In effect,
¶ 45 Chapter 9.95 RCW made the former “parole board” the “ISRB.” The ISRB‘s function was originally to deal with those cases that were not sentenced under the SRA, and in 1989, the legislature explicitly directed the ISRB to set terms for confinement for offenders serving life sentences.
¶ 46 A quote from Stanphill illuminates the system of indeterminate sentencing:
Even after the adoption of the SRA, the indeterminate sentencing scheme retains the premise of rehabilitation. The insertion of SRA sentencing ranges does not change the goal; it merely standardizes the process and places a tangible date on parole eligibility. However, the SRA ranges do not guarantee release and pre-SRA offenders must still establish parolability. For this reason, any inmate serving an indeterminate life sentence can never establish more punishment is being imposed under whatever SRA guideline the Board applies.
Stanphill, 134 Wash.2d at 172, 949 P.2d 365.
¶ 47 Additional authority concerning the procedures of the ISRB when setting minimum terms is also helpful. In In Re the Personal Restraint of Locklear, 118 Wash.2d 409, 413-14, 823 P.2d 1078 (1992), the court held that the Board was not bound to mirror the SRA criteria but only had to be reasonably consistent with it. And in In Re Ecklund, 139 Wash.2d 166, 175, 985 P.2d 342 (1999), the court noted that the SRA is not superimposed upon the indeterminate system. Ecklund dealt with the standard of review for release and the resetting of an additional minimum. Ecklund, 139 Wash.2d at 170, 985 P.2d 342. The court held that the redetermination of a minimum is within the discretion of the ISRB. Ecklund, 139 Wash.2d at 170, 985 P.2d 342. The court also addressed the ISRB‘s additional duty to ensure that there is not a community threat upon release. Ecklund, 139 Wash.2d at 174, 985 P.2d 342. Ecklund‘s sentence had been extended several times and the court stated that his sentence was the equivalent of an exceptional sentence. Ecklund, 139 Wash.2d at 176, 985 P.2d 342. Nonetheless, these cases illustrate the difference between the SRA “determinate” sentences and the “indeterminate” sentence under
¶ 48 The Chief Judge‘s opinion concedes that Blakely‘s constitutional jury trial right does not apply directly to the minimum set by the sentencing court. But the Chief Judge‘s opinion extends Blakely to the setting of the minimum term relying upon the final language of the statute which states “... if the offender is otherwise eligible for such a sentence.” Chief Judge‘s opinion at 456. The Chief Judge‘s opinion opines that an offender is not “otherwise eligible” to receive a sentence outside the standard sentence range until a jury has found disputed facts increasing the standard range penalty beyond a reasonable doubt or the defendant has otherwise stipulated or waived a jury
¶ 49 The Chief Judge‘s opinion claims that the “eligibility” for an offender for a sentence outside the standard range must be determined by a jury in this case because of Blakely. The Chief Judge‘s opinion bases this upon the statute, using rules of statutory rules of construction and Blakely.
¶ 50 But the statute is not ambiguous. The plain language gives the trial court the authority to set the minimum term, not a jury. And Stanphill establishes that the offender does not have a vested interest in a release date under an indeterminate sentence. The injustice that Blakely and Apprendi prohibited was imposition of a sentence beyond what the law allowed for the crime that the jury found. That injustice is not present here.
¶ 51 There is a difference between entitlement and eligibility. Here, the statute provides that the court make the determination of eligibility, not a jury. Under the indeterminate sentencing scheme, the minimum date is merely a target of sorts because the IRSB can always extend the term in two-year increments. Thus, the minimum merely establishes a base, but not a solid base for the offender to be considered for release. There is no expectation of a maximum term that the offender could be exposed to other than the maximum of life imprisonment and supervision for life; there is no guarantee of a certain release date; and, there is no question of notice. And if the lead opinion is correct, if the determination of the original minimum term is subject to a jury trial, then any re-determination of the minimum by the IRSB would be subject to a jury trial. The extension of the right to a jury trial for a minimum term under the indeterminate sentencing scheme is inappropriate.
¶ 52 I would affirm the sentence.