State v. OseState v. Ose
¶ 1 We are asked to identify the unit of prosecution for the crime of possessing “a stolen access device” in violation of
FACTS
¶ 2 On January 30, 2002, after a series of car prowlings and use of stolen credit cards, Ms. Ose pleaded guilty to 25 counts of possessing “a stolen access device”1 in violation of
¶ 3 On June 24, 2004, while Ms. Ose‘s appeal was pending, the United States Supreme Court held that the Sixth Amendment requires any fact used to increase а defendant‘s sentence beyond the standard sentencing range (excluding prior convictions) be proved beyond a reasonable doubt to a jury or admitted by the defendant. Blakely, 542 U.S. at 301-05, 124 S.Ct. 2531. On appeal, Ms. Ose cited Blakely as additional authority; however, Division Three of the Court of Appeals reversed Ms. Ose‘s convictions on double jeopardy grounds and did not reach the Blakely issue.
¶ 4 The State petitioned this court for review, which we granted on July 12, 2005. State v. Ose, noted at 154 Wash.2d 1020, 116 P.3d 398 (2005).
ISSUES
¶ 5 (1) What is the unit of prosecution for possessing “a stolen access device” in violation of
¶ 6 (2) Does Ms. Ose‘s exceptional sentence violate the Sixth Amendment as interpreted in Blakely?
ANALYSIS
¶ 7 Standard of Review. This court reviews de novo whether the lower court correctly identified the unit of prosecution in a statute. State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005). We also review de novo whether the factors cited by the lower court justify an exceptional sentence. State v. Law, 154 Wash.2d 85, 93, 110 P.3d 717 (2005).
¶ 9 While a unit of prosecution issue “is one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent.” State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998). In determining legislative intent, this court first lоoks to the statute‘s plain meaning. Tvedt, 153 Wash.2d at 710, 107 P.3d 728. If the statute is ambiguous as to the unit of prosecution, we apply the “rule of lenity,” under which any ambiguity must be “`resolved against turning a single transaction into multiple offenses.‘” Id. at 710-11, 107 P.3d 728 (quoting Adel, 136 Wash.2d at 635, 965 P.2d 1072).
¶ 10 Here, Ms. Ose pleaded guilty to 25 violations of subsection (c) of the following statute:
A person is guilty of possessing stolen property in the second degree if:
(a) He or she possesses stolen property other than a firearm as defined in
RCW 9.41.010 which exceeds two hundred fifty dollars in value but does not exceed one thousand five hundred dollars in value; or(b) He or she possesses a stolen public record, writing or instrument kept, filed, or deposited according to law; or
(c) He or she possesses a stolen access device; or
(d) He or she possesses a stolen motor vehicle оf a value less than one thousand five hundred dollars.
¶ 11 The State argues that Division Three‘s reliance on McReynolds was misplaced and that this court should adopt Division Two‘s reasoning in State v. Douglas, 50 Wash.App. 776, 751 P.2d 311 (1988). In McReynolds, the defendants were convicted of possessing stolen property but not specifically of possessing a stolen access device. The McReynolds court held that ”continuous possession of various property during a period of 15 days ... is a single possession. The separate convictions for the single possession violated the prohibition against double jeopardy.” 117 Wash.App. at 340, 71 P.3d 663 (second emphasis added). In contrast, in Douglas, the defendant was charged with two counts of second degree possession of stolen property specifically for possessing stolen access devices. 50 Wash.App. at 777, 751 P.2d 311. In interpreting
¶ 12 We agree with the Douglas court that the legislature unambiguously defined the unit of prosecution in
1-used as a function word before most singular nouns other than proper and mass nouns when the individual in question is undetermined, unidentified, or unspecified...; used with a plural noun only if few, very few, good many, or great many is interposed.
WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1 (2002). Thus, because the word “a” is used only to precede singular nouns except when a plural modifier is interposed, the legislature‘s use of the word “a” before “stolen access device” unambiguously gives
¶ 13 Ms. Ose‘s attempt to read ambiguity into the statute is unpersuasive. Relying on an older dictionary, Ms. Ose defines “a” as “not any particular or certain one of a class or group: a man; a chemical; a house.” Resp‘t‘s Supp. Br. at 11 (citing WEBSTER‘S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE (1996)). Applying this definition, Ms. Ose arguеs that “a stolen access device” should be read as ”any stolen access device” and, from here, “one could logically argue that any number of stolen access devices would constitute only one unit of prosecution.”
¶ 14 Perhaps “one could logically argue” that “a” means “any number“; however, a statute is “not ambiguous merely because different interpretations are conceivable.”
¶ 15 Moreover, this court has consistently interpreted the legislature‘s usе of the word “a” in criminal statutes as authorizing punishment for each individual instance of criminal conduct, even if multiple instances of such conduct occurred simultaneously. For example, in Westling, we considered the second degree arsоn statute and the difference between the word “a” and the word “any.” The statute at issue in Westling provided that “[a] person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any ... automobile.”
¶ 16 Similarly, in State v. Root, 141 Wash.2d 701, 9 P.3d 214 (2000), we considered how the legislature‘s use of the words “a minor” in the sexual exploitation of a minor statute,
¶ 17 Likewise, in State v. DeSantiago, 149 Wash.2d 402, 68 P.3d 1065 (2003), we interpreted
¶ 18 Most recently, in Graham, we considered the unit of prosecution for the reckless endangerment statute, which provides that “[a] person is guilty of reckless endangerment when he or she recklessly engagеs in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person.”
¶ 19 When this court engages in statutory construction we presume that the legislature is aware of our prior interpretations of its enactments. Tili, 139 Wash.2d at 116, 985 P.2d 365 (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992)). Thus, consistent with our prior construction of similarly worded statutes, we now hold that the legislature, by use of the language “a stolen access device,” unambiguously defined the unit of prosecution in
¶ 20 Exceptional Sentence. In 2004, while Ms. Ose‘s appeal was pending, the United States Supreme Court ruled that the Sixth Amendment requires any fact used to increase a defendant‘s sentence beyond the standard sentencing range (excluding prior convictions) to be proved beyond a reasonable doubt to a jury or admitted by the defendant. Blakely, 542 U.S. at 301-05, 124 S.Ct. 2531. However, not every aggravating factor need be valid in order for this court to uphold an exceptional sentence. State v. Hughes, 154 Wash.2d 118, 134, 110 P.3d 192 (2005) (citing State v. Jackson, 150 Wash.2d 251, 276, 76 P.3d 217 (2003)).
¶ 21 In the present case, none of the factors that the trial court relied on to justify Ms. Ose‘s exceptional sentence withstand scrutiny under Blakely. The trial court imposed the еxceptional sentence because Ms. Ose‘s sentence would otherwise be “clearly too lenient” in that (1) “the crimes committed required a high degree of planning and sophistication,” (2) “the crimes impacted a large number of viсtims,” (3) the crimes resulted in “major economic harm,” and (4) Ms. Ose would be given “`free crimes‘” because her “standard range would not change once she got to an offender score of nine.” Verbatim Report of Proceedings at 51; Clerk‘s Papers at 55-56. The first three of these factors unquestionably require factual determinations which should be left to the jury under Blakely. In addition, in Hughes, we rejected the argument that the “free crimes” factor fits within the “prior convictions” exception to the Blakely rule. 154 Wash.2d at 138-40, 110 P.3d 192. Thus, here, beсause none of the aggravating factors relied upon by the sentencing court were proved to a jury or admitted by Ms. Ose, we vacate Ms. Ose‘s sentence and remand for resentencing within the standard range.
CONCLUSION
¶ 22 We reverse the Court of Apрeals and hold that the legislature unambiguously defined the unit of prosecution for violations of
¶ 23 However, we vacate Ms. Ose‘s sentence and remand for resentencing within the standard sentencing range. The sentencing court‘s imposition of an exceptional sentence violated Blakely because the facts used in justifying the exceptional sentence were neither proved to a jury nor admitted by Ms. Ose.
ALEXANDER, C.J., C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, FAIRHURST and J.M. JOHNSON, JJ., concur.