STATE v. KING, 140 Wn. App. 1028 (2007)

THE STATE OF WASHINGTON, Respondent, v. WALTER JOHN KING, Appellant.

No. 55000-4-I.The Court of Appeals of Washington, Division One.
September 17, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for King County, No. 03-1-06985-6, Anthony P. Wartnik, J., entered September 3, 2004.

Reversed and remanded by unpublished per curiam opinion.

PER CURIAM.

Walter King appeals the trial court’s imposition of exceptional sentences imposed on him for his convictions for two counts of residential burglary. Because the crimes are not serious violent offenses, King statutorily qualified for presumptive concurrent sentences. While the trial court did impose concurrent sentences, each of the sentences imposed exceeded the standard range. King contends that the sentences were imposed in violation of his constitutional rights to due process and a jury trial pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007). King argues that a jury, not the court, must find the aggravating circumstances supporting imposition of an exceptional sentence. Thus, he claims that the trial court erred when it found that, given King’s 26 prior misdemeanor convictions, the operation of the multiple offense policy of RCW 9.94A.589 resulted in a presumptive sentence that was clearly too lenient, and when it determined that imposition of standard range sentences would result in clearly too lenient punishment.

King further argues that the exceptional sentences should be vacated and the cause remanded to the sentencing court for imposition of standard range sentences because, at the time he was sentenced, there existed no legal procedure whereby a jury could have made the findings necessary to support imposition of an exceptional sentence.

The State concedes error and also concedes that standard range sentences should be imposed on remand. We accept the State’s concessions. The exceptional sentences King received on his two convictions of residential burglary are reversed and the cause is remanded to the trial court for imposition of sentences within the standard range.[1]

[1] King also argued for the first time in his reply brief that remanding for a new sentencing hearing would amount to placing King in double jeopardy, but still requested the same relief, i.e., that the cause be remanded for resentencing within the standard range. The State moved to strike the appellant’s reply brief, arguing that King waived this argument by not raising it in its opening brief. The State’s motion is denied because the disposition of this matter renders both the State’s motion and King’s double jeopardy argument moot.