Lead Opinion
¶1 This case involves whether a trial court may impose an exceptional sentence on a defendant under the major economic offense sentence aggravators found in RCW 9.94A.535(3)(d)(i) and (iii) when that defendant’s
Facts and Procedural History
¶2 The State charged Larry Hayes with one count of leading organized crime and one count of identity theft in the first degree, among several other charges.
¶3 On the first degree identity theft charge at issue in this case, the jury was instructed that to convict, it must find “[t]hat on or about [the] period ..., the defendant, or an accomplice, knowingly obtained, possessed, or transferred a means of identification or financial information” of the victim. Resp’t’s Suppl. Clerk’s Papers at 146 (emphasis added). The trial court also instructed the jury that to find the count was a major economic offense, the jury had to find at least one of two factors beyond a reasonable doubt: (1) the crime involved multiple victims or multiple incidents per victim or (2) the crime involved a high degree of sophistication or planning or occurred over a lengthy period of time. These are two of the statutory sentence aggravators for a major economic offense. The trial judge explained that
¶4 Hayes appealed his conviction for leading organized crime. State v. Hayes, 164 Wn. App. 459, 262 P.3d 538 (2011) (Hayes I). The Court of Appeals reversed that conviction, thereby vacating the exceptional sentence. On remand for resentencing on the remaining 11 convictions,
Standard of Review
¶5 This case rests on the interpretation of RCW 9.94A.535(3)(d). Statutory interpretation is a question of law, which we review de novo. State v. Armendariz, 160
Analysis
¶6 Washington’s criminal code has undergone substantial modification over the past 40 years. In 1975, the legislature undertook an extensive overhaul, adopting many provisions of the American Law Institute’s Model Penal Code (Proposed Official Draft 1962). In doing so, the legislature amended the complicity statute. The previous statute, former RCW 9.01.030 (1909), provided that “[e]very person concerned in the commission of a felony ... is a principal, and shall be proceeded against and punished as such.” (Emphasis added.) Punishment was coextensive with liability under the former statute: an accomplice could receive the same sentence as a principal. The current complicity statute, RCW 9A.08.020(3), enacted in 1975, while retaining liability for the substantive offense, no longer contains the “and punished as such” language. By removing this language, the legislature indicated that punishment for accomplices was no longer coextensive with liability and that individual sentencing decisions would rest within the discretion of the sentencing judge.
¶7 The legislature continued to move toward establishing more specific and individualized punishments for offenders. After overhauling the criminal code, the legislature passed the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. The SRA was meant to bring proportionality and uniformity to what had been a highly
¶8 Under the SRA as originally enacted, a judge could find facts to impose an exceptional sentence, that is, one outside the standard sentencing range, if there were “substantial and compelling reasons justifying” such a sentence. RCW 9.94A.535. In making this decision, sentencing judges considered the circumstances of each defendant and their individual degrees of involvement. The SRA was revised in response to the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Now, unless stipulated by a defendant, the facts supporting an exceptional sentence (other than a prior conviction) must be found by a jury beyond a reasonable doubt. RCW 9.94A.537(3). As was done in this case, the jury indicates that it has found facts supporting an aggravating factor by entering a special verdict.
¶9 In this case, Hayes was convicted as an accomplice.
¶10 The Court of Appeals, in reaching its conclusion, reasoned that since the legislature did not expressly include language making the major economic offense aggravators applicable to accomplices, the sentencing judge had no authority to impose an exceptional sentence on Hayes. Hayes II, 177 Wn. App. at 806. The State argues, however, that our case law permits imposing an exceptional sentence on accomplices even in the absence of express language. While we agree with the State’s characterization of our cases, we nevertheless agree with the Court of Appeals’ resolution of this case.
Ill When reviewing a sentence aggravator or enhancement, in the absence of express triggering language, we look to the defendant’s own misconduct to satisfy the operative language of the statute. Because the legislature has removed the “and punished as such” language from the current complicity statute, and because the SRA requires punishment that is tailored to individual culpability, a sentencing judge can impose an exceptional sentence on an
¶12 As we acknowledged in State v. McKim, 98 Wn.2d 111, 653 P.2d 1040 (1982), the legislature disapproved of this “automatic” approach when it amended the complicity statute. In McKim, we were asked whether the former deadly weapon statute, which increased punishment for an “accused [who] was armed with a deadly weapon,” could be applied to an accomplice who was not personally armed but whose codefendant was. Former RCW 9.95.015 (1961).
¶13 We went on to conclude that the deadly weapon enhancement could apply to an unarmed accomplice, reasoning that the accomplice could be constructively armed with a deadly weapon if his codefendant were armed. This in turn required a finding that the accomplice had knowledge that his codefendant was armed. However, the jury in that case was instructed that “ ‘if one of the two participants is armed with a . . . deadly weapon, then both are considered to be so armed.’ ” McKim, 98 Wn.2d at 118 (alteration in original) (quoting trial court record). We vacated the enhancement because there was no finding regarding the defendant’s knowledge that the codefendant
¶14 McKim’s focus on the defendant’s own conduct remains the foundation of the analysis where there is no express language imposing an enhanced' sentence on an accomplice. For example, in State v. Pineda-Pineda, 154 Wn. App. 653, 226 P.3d 164 (2010), the Court of Appeals was asked whether the “drug free zone” sentence enhancement,
¶15 The State argues that when the language of an aggravating factor is focused on “the current offense,” as the factors at issue here are, then that factor applies to an accomplice and “should not be assessed on an individualized basis, but apply equally to all participants in a crime regardless of whether they are a minor or major participant.” Suppl. Br. of Pet’r at 17. In essence, the State asks us to revert back to the 1909 complicity statute and its coextensive “punished as such” provision, depending on nothing more than subtle nuances in the phrasing of certain
¶16 We hold that for aggravating factors that are phrased in relation to “the current offense” to apply to an accomplice, the jury must find that the defendant had some knowledge that informs that factor. Because factors phrased in this way potentially permit imposing an exceptional sentence more broadly than would be consistent with the SRA, this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence. In this case, the jury’s special verdict should have asked whether Hayes had knowledge that informs the factors on which they were instructed: for example, whether Hayes knew that the offense would have multiple victims or multiple incidents per victim, or whether Hayes knew that the offense involved a high degree of sophistication or planning or would occur over a lengthy period of time.
¶17 We cannot tell from the jury’s special verdict if it found that Hayes had any knowledge that informs the aggravating factors for a major economic offense, such as whether he knew the offense would involve multiple vie-
Conclusion
¶18 Because we cannot tell from the jury’s special verdict whether it found that Hayes had knowledge that informs the aggravating factors on which it was instructed, we affirm the Court of Appeals’ decision vacating his sentence and remand for resentencing.
Sixteen counts total: one count of leading organized crime, one count of identity theft in the first degree, five counts of identity theft in the second degree, six counts of possession of stolen property, two counts of possession of a stolen vehicle, and one count of possession of methamphetamine. State v. Hayes, 164 Wn. App. 459, 464, 262 P.3d 538 (2011).
One count of identity theft in the first degree, five counts of identity theft in the second degree, and five counts of possession stolen property in the second degree.
Although the instructions permitted the jury to convict Hayes either as principal or accomplice, the State does not argue that sufficient evidence exists to find that Hayes was convicted as a principal. Therefore, we analyze the issue as if Hayes was convicted as an accomplice.
“[T]he court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at the time of the commission of the crime.”
ECW 69.50.435.
Dissenting Opinion
¶19 (dissenting) — The majority holds “that for aggravating factors that are phrased in relation to The current offense’ to apply to an accomplice, the jury must find that the defendant had some knowledge that informs that factor.” Majority at 566. This rule has no grounding in our precedent. It effectively adds a knowledge element to exceptional sentencing factors that do not require proof that any participant in the crime knew the crime was a major economic offense. And because this added knowledge element applies only to accomplice liability, the majority’s rule also requires a jury determination of each copartici-pants’ role in a jointly committed crime, thus changing how coparticipants have long been tried. I would follow the plain
¶20 The starting point of the majority’s analysis is its assertion that Larry Alan Hayes was convicted as an accomplice, although the jury was permitted to convict him as either a principal or an accomplice. The jury’s verdict form does not identify on what theory it found Hayes guilty. Nor is this question generally put to the jury. “[Principal and accomplice liability are not alternative means of committing a single offense.” State v. McDonald, 138 Wn.2d 680, 687, 688, 981 P.2d 443 (1999) (noting, “we have made clear the emptiness of any distinction between principal and accomplice liability”). The jury need not determine whether a defendant acted as a principal or an accomplice in a crime so long as it is convinced that the defendant participated in the crime. State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004) (quoting State v. Carothers, 84 Wn.2d 256, 261, 525 P.2d 731 (1974).
¶21 Certainly we must assume, based on the jury instructions, that Hayes’s conviction could rest on accomplice
¶22 The jury instructions, to which Hayes does not assign error, told the jury that if it found the defendant guilty of the enumerated charges, then it was required to determine whether the crime on which it found the defendant guilty was a major economic offense. Resp’t’s Suppl. Clerk’s Papers at 176 (Instruction 44). The jury was then provided with two ways, introduced in the alternative, to find a major economic offense: (1) the crime involved multiple victims or multiple incidents per victim or (2) the crime involved a high degree of sophistication or planning or occurred over a lengthy period of time. Id. at 177 (Instruction 45); see RCW 9.94A.535(3)(d)(i), (iii). The language of these enhancement factors differs from the language used in the fourth statutory alternative for a major economic offense under RCW 9.94A.535(3)(d), which speaks directly to the defendant’s conduct.
¶23 The majority relies on State v. McKim, 98 Wn.2d 111, 653 P.2d 1040 (1982). It correctly recognizes that under McKim the complicity statute does not provide the relevant triggering language to apply an exceptional sentencing factor to an accomplice and that therefore we must look to the language of the enhancement statute itself. Majority at 564; McKim, 98 Wn.2d at 116-17. However, the majority mistakenly reduces the holding in McKim to the proposition that an accomplice must be punished based on his own conduct, necessitating a finding that he had knowledge of the aggravating circumstances of the crime. Majority at 564-66.
¶24 This is inconsistent with our reading of McKim in State v. Silva-Baltazar, 125 Wn.2d 472, 886 P.2d 138 (1994). In that case, we clarified that the knowledge analysis in McKim was based not on accomplice versus principal liability, but on the elements for proving constructive possession of a firearm under the enhancement statute at issue in McKim. Id. at 481-82. We found the analysis in McKim inapplicable to the drug-free school zone enhancement statute because that statute “does not require knowledge on the part of any of the participants.” Id. at 482 (further noting, “[i]t is irrelevant whether a person is aware that he or she is carrying on the prohibited drug activity in a drug-
¶25 Relying on its erroneous reading of McKim, the majority insists that in order for the imposition of a particular enhancement to be based on the defendant’s own conduct, “the jury must find that the defendant had some knowledge that informs that factor.” Majority at 566. Otherwise, reasons the majority, such aggravating factors “potentially permit imposing an exceptional sentence more broadly than would be consistent with the SRA [Sentencing Reform Act of 1981, ch. 9.94A RCW].” Id. I disagree. First, we are obligated to apply RCW 9.94A.535(3)(d)(i) and (iii) in a way that respects the plain, broad language. The different language throughout RCW 9.94A.535(3) reflects a legislative intent to apply certain aggravators narrowly (to the individual) and others more broadly (to the crime itself). If we accept the majority’s reasoning, we run the risk of not allowing aggravators that plainly pertain to the offense to apply in the same manner regardless of whether an individual is convicted as a principal or an accomplice. Applying the factors consistently to the offense does not make the statute ocerbroad.
¶26 Second, there is no conflict with the SRA simply because the enhancement factors apply based on the facts of the offense rather than the offender’s conduct. The goal of the SRA is to provide consistency in sentencing by focusing on the offender’s criminal history and the seriousness of the offense, so that punishment is tailored to individual culpa
¶27 More fundamentally, the majority’s rule makes the question we never ask the jury to determine — whether the defendant acted as a principal or an accomplice — potentially the most important question for purposes of sentencing. The majority vacates Hayes’s exceptional sentence because there is no jury finding that he knew the substantive crimes he committed were major economic offenses. But, the majority does not address how a jury will need to be instructed in the future in order to accommodate its rule. Clearly, most of the jury instructions given in this case would need to be overhauled, including those describing accomplice liability and the “to convict” instructions that allow a conviction to be based on either principal or accomplice liability. There will also need to be separate instructions on whether each substantive crime constitutes a major economic offense and whether the defendant knew this. It is no exaggeration to say that the way coparticipants have long been tried in this state will need to change in order to accommodate the knowledge finding that the majority superimposes on the enhancement statute.
Constitutional concerns require a finding of “major participation” by an accomplice in certain circumstances. See State v. Roberts, 142 Wn.2d 471, 505-06, 14 P.3d 713 (2000) (requiring such finding in order to impose death sentence on accomplice to premeditated first degree murder based on federal and state constitutional prohibitions against cruel punishment). Hayes does not raise any constitutional issues, and sentence enhancement statutes differ materially from the aggravating factors in Roberts. See State v. Pineda-Pineda, 154 Wn. App. 653, 663 n.4, 226 P.3d 164 (2010) (distinguishing Roberts from cases involving school zone and firearm sentence enhancement statutes).
“The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.” RCW 9.94A-,535(3)(d)(iv) (emphasis added).
State v. Davis, 101 Wn.2d 654, 658-59, 682 P.2d 883 (1984).
