STATE v. McNEAL, 142 Wn. App. 777 (2008)

175 P.3d 1139

No. 35423-3-II.The Court of Appeals of Washington, Division Two.
January 23, 2008.

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Peter B. Tiller (of The Tiller Law Firm), for appellant.

Jeremy R. Randolph, Prosecuting Attorney, and Lori E. Smith, Deputy, for respondent.

HUNT, J.

¶1 — John Kevin McNeal appeals his resentencing on remand for vehicular assault, vehicular homicide, and possession of a controlled substance with intent to deliver.[1] He argues that the resentencing court erred when

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it (1) applied RCW 69.50.408, which allowed it “to double”[2]
the statutory maximum for his drug offense; (2) concluded tha Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), did not apply on remand; and (3) imposed exceptional sentences based on judicial factual findings rather than on factual findings by a jury. He asks us to order the trial court to resentence him again, this time within the standard ranges for his convicted offenses.

¶2 The State concedes that the trial court erred when it determined that Blakely did not apply on remand and when it, rather than a jury, made the factual findings supporting McNeal’s exceptional sentences. But the State argues that (1) the sentencing court properly applied the “doubling provision” of RCW 69.50.408 and (2) the legislature’s 2007 amendments to RCW 9.94A.537, effective April 27, 2007, authorized the trial court to empanel a sentencing jury to determine if any aggravating factors exist.

¶3 We hold the trial court did not err when it applied the “doubling provision,” which required that the trial court find only the fact of a prior conviction. But, unlike the facts in our recent decision in State v. Kilgore, 141 Wn. App. 817, 172 P.3d 373 (2007), filed November 27, 2007, our prior remand order here vacated McNeal’s original sentence and remanded expressly for resentencing. Thus, we accept the State’s concession of error on the Blakely issue and hold that the trial court erred in failing to appl Blakely at resentencing and in making factual findings to support the exceptional sentences. Accordingly, we vacate McNeal’s sentence, and we remand again for resentencing unde Blakely. Under the 2007 amendments to RCW 9.94A.537, the trial court may empanel a jury to make the necessary factual findings to support any potential exceptional sentence.

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FACTS I. BACKGROUND ¶4 On July 5, 1996, John McNeal caused a head-on accident that killed the passenger and injured the driver of the other car. State v. McNeal, 98 Wn. App. 585, 588-89, 991 P.2d 649 (1999), aff’d, 145 Wn.2d 352, 37 P.3d 280 (2002). Police officers found drugs, drug paraphernalia, and a large amount of cash on McNeal’s person and among his belongings McNeal, 98 Wn. App. at 589. A jury convicted McNeal of vehicular homicide, vehicular assault, and possession of a controlled substance with intent to deliver. McNeal, 98 Wn. App. at 590.

¶5 The sentencing court (1) imposed high-end standard range sentences of 116 months for the vehicular homicide and 84 months for the vehicular assault, (2) doubled the statutory maximum for the drug conviction under RCW 69.50.408[3] and imposed an exceptional 240-month sentence on that count,[4] and (3) imposed an exceptional sentence under former RCW 9.94A.400(1)(a) (1996)[5] by running the sentences consecutively.[6]

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A. First Direct Appeal ¶6 McNeal appealed his vehicular assault and vehicular homicide convictions and exceptional sentences. McNeal, 98 Wn. App. at 588, 597-600. We affirmed. McNeal, 98 Wn. App. at 600. Our Supreme Court affirmed McNeal’s convictions, but it did not address any sentencing issues State v. McNeal, 145 Wn.2d 352, 356, 363-37, 37 P.3d 280 (2002). The case was mandated on January 30, 2002.

B. Personal Restraint Petition ¶7 In September 2005, McNeal filed a personal restraint petition (PRP). In October 2005, he filed a supplemental brief raising several additional issues, including whether he had proper notice of the doubling statute, whether his offender score had been properly calculated, and whether the trial court lacked the authority to impose an exceptional sentence.

¶8 On June 9, 2006, we granted relief on McNeal’s original petition. We ruled that although his drug offense sentence was within the statutory maximum of 240 months, the additional 12 months of community placement resulted in a sentence that exceeded the statutory maximum. Thus, we “vacated” and remanded McNeal’s sentence

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for his drug conviction; we left his sentences for the other counts intact.

¶9 Although we did not consider McNeal’s supplemental briefing, we noted:

Because petitioner needs to be resentenced and because the sentencing court is in a better position to consider these issues on the merits as they may affect the ultimate sentence imposed, petitioner may raise them below.

Clerk’s Papers (CP) at 80 (Order Granting Pet. at 2 (No. 33894-7-II)).[7]

II. RESENTENCING ON REIMAND ¶10 At the September 29, 2006 resentencing hearing on remand, the trial court addressed both the excessive sentence and the issues McNeal had raised in his supplemental PRP brief. The trial court ruled that (1) RCW 69.50.408 did not create a sentencing enhancement and, therefore, did not have to be set forth in the charging information; (2) because McNeal did not plead guilty, he was not entitled to notice of the doubling aspect of RCW 69.50.408; (3) Blakely did not apply because McNeal’s case was final before the Supreme Court issue Blakely in 2004; and (4) one of McNeal’s prior convictions had “washed out”[8] of his offender score, resulting in new offender scores of 10 for the vehicular homicide and vehicular assault and 14 for the drug offense.

¶11 The trial court also adopted the previous court’s findings of fact and conclusions of law supporting the

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exceptional sentences, which it reimposed, including running the sentences consecutively.[9]

¶12 McNeal appeals his resentencing. Because McNeal raised a new issue in his reply brief, we allowed the State to file a responsive brief to address this new issue.

ANALYSIS I. DOUBLING PROVISION ¶13 McNeal first argues that the trial court violated his due process right to notice under article I, section 22 of the Washington State Constitution and the Sixth Amendment to the federal constitution, as interpreted under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely,[10] because the State’s charging information failed to “allege the existence of the condition precedent to the application” of the RCW 69.50.408(1) sentencing-doubling provision, namely, his prior qualifying drug offenses.[11] We disagree.

¶14 The charging document need include only the essential elements of the charged crime. State v. Goodman, 150 Wn.2d 774, 784, 83 P.3d 410 (2004); State v. Kjorsvik,

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117 Wn.2d 93, 101, 812 P.2d 86 (1991). Both Apprendi an Blakely provided,

“Other 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.”

Blakely, 542 U.S. at 301 (emphasis added) (quoting Apprendi, 530 U.S. at 490). Accordingly, neithe Apprendi nor Blakely required the State to allege prior convictions used to support and increase McNeal’s penalty. Nor did these cases preclude the trial court from finding that the prior convictions existed. Thus, McNeal’s argument fails.

¶15 We hold, therefore, that the lack of a “doubling provision” related allegation in the information did not violate McNeal’s due process right to notice of the charges against him.

II. APPLICABILITY OF BLAKELY ON REMAND ¶16 McNeal next argues that the sentencing court erred when it ruled that Blakely did not apply on resentencing. The State concedes that this was error, and we agree.

¶17 In In re Personal Restraint of Skylstad, our Supreme Court recently explained that a conviction is “final” for PRP time-bar purposes only if both the conviction and the sentence are final. 160 Wn.2d 944, 949-50, 162 P.3d 413
(2007).[12] Once we vacated McNeal’s original sentence,

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there was no longer a final sentence,[13] the case was no longer final, and the trial court, therefore, erred when it found that Blakely did not apply to McNeal’s resentencing on remand.[14]

III. AGGRAVATING FACTORS ¶18 Having held that Blakely applied to McNeal’s resentencing, we next determine whether the trial court properly imposed an exceptional sentence above the standard range for McNeal’s drug conviction, his second such

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offense,[15] and exceptional consecutive sentences under RCW 9.94A.589(1)(a). We hold that the trial court erred.

¶19 In In re Personal Restraint of VanDelft, our Supreme Court held that a jury, rather than the sentencing court, must find the exceptional sentencing factors supporting the imposition of consecutive sentences under RCW 9.94A.589(1)(a). 158 Wn.2d 731, 743-44, 147 P.3d 573 (2006) cert. denied, 127 S. Ct. 2876 (2007). Additionally, under State v. Ose, 156 Wn.2d 140, 149, 124 P.3d 635
(2005), and State v. Hughes, 154 Wn.2d 118, 133-37, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006), a jury must find facts supporting an exceptional sentence beyond the standard range. On remand, a Specially-empanelled jury can consider such facts, including those the trial court used to justify the exceptional sentence for McNeal’s current drug offense.[16]

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¶20 Because Blakely applied to McNeal’s resentencing proceedings, we hold that the trial court erred when it, rather than a jury, made the factual determinations required to impose the exceptional sentences.[17] Accordingly, we again vacate McNeal’s sentences and remand for resentencing.[18]

IV. PROCEDURE ON REMAND ¶21 We next address the relief to which McNeal is entitled on this second remand for resentencing. The State argues that the legislature’s 2007 amendments to RCW 9.94A.537 give the sentencing court authority to empanel a sentencing jury on remand to determine whether there are any aggravating factors to support an exceptional sentence. Br. of Resp’t at 2 (citing LAWS OF 2004, ch. 68, § 4; LAWS OF 2007, ch. 205).

¶22 McNeal replies[19] that on remand the trial court is required to impose standard range sentences for each offense and cannot empanel a jury to consider the aggravating factors because: (1) under RCW 9.94A.345, he is

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entitled to resentencing under the laws in effect at the time he committed the current offenses, which did not allow juries to make findings supporting exceptional sentences; (2) RCW 10.01.040, the “savings clause,” precludes the application of the 2007 amendments; (3) application of the 2007 amendments would constitute an unlawful retroactive application of substantive amendments; and (4) application of the 2007 amendments would violate the prohibition against ex post facto laws. McNeal’s arguments fail.

A. 2005 “Blakely Fix” and Pillatos ¶23 In 2005, in response to Blakely, the legislature enacted RCW 9.94A.537, creating new procedures to allow sentencing courts to empanel juries to make the factual findings necessary to impose exceptional sentences; the effective date of the 2005 legislation was April 15, 2005 State v. Pillatos, 159 Wn.2d 459, 468, 150 P.3d 1130
(2007) (citing LAWS OF 2005, ch. 68). This legislation is commonly referred to as the “Blakely fix” legislation.

¶24 Subsequently, in Pillatos, our Supreme Court held that the plain language of RCW 9.94A.537 allowed th “Blakely fix” to apply only in those cases where the trial had not started or the defendant had not entered a guilty plea before the effective date of the act. 159 Wn.2d at 470. This was the state of the law at the time of McNeal’s 2006 resentencing.

B. 2007 Amendments ¶25 In 2007, in response to Pillatos, the legislature amended RCW 9.94A.537, stating:

In [Pillatos], the Washington supreme court held that the changes made to the sentencing reform act concerning exceptional sentences in chapter 68, Laws of 2005 do not apply to cases where the trials had already begun or guilty pleas had already been entered prior to the effective date of the act on April 15, 2005. The legislature intends that the superior courts

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shall have the authority to impanel juries to find aggravating circumstances in all cases that come before the courts for trial or sentencing, regardless of the date of the original trial or sentencing.

LAWS OF 2007, ch. 205, § 1. This amendment took effect on April 27, 2007. LAWS OF 2007, ch. 205, § 3.

¶26 RCW 9.94A.537 now provides:

(1) At any time prior to trial or entry of the guilty plea if substantial rights of the defendant are not prejudiced, the state may give notice that it is seeking a sentence above the standard sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based.
(2) In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.
(3) The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury’s verdict on the aggravating factor must be unanimous, and by special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.
(4) Evidence regarding any facts supporting aggravating circumstances under RCW 9.94A.535(3)(a) through (y) shall be presented to the jury during the trial of the alleged crime, unless the jury has been impaneled solely for resentencing, or unless the state alleges the aggravating circumstances listed in RCW 9.94A.535(3)(e)(iv), (h)(i), (o), or (t). If one of these aggravating circumstances is alleged, the trial court may conduct a separate proceeding if the evidence supporting the aggravating fact is not part of the res geste of the charged crime, if the evidence is not otherwise admissible in trial of the charged crime, and if the court finds that the probative value of the evidence to the aggravated fact is substantially outweighed by its prejudicial effect on the jury’s ability to determine guilt or innocence for the underlying crime.
(5) If the superior court conducts a separate proceeding to determine the existence of aggravating circumstances listed in

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RCW 9.94A.535(3)(e) (iv), (h)(i), (o), or (t), the proceeding shall immediately follow the trial on the underlying conviction, if possible. If any person who served on the jury is unable to continue, the court shall substitute an alternate juror.
(6) If the jury finds, unanimously and beyond a reasonable doubt, one or more of the facts alleged by the state in support of an aggravated sentence, the court may sentence the offender pursuant to RCW 9.94A.535 to a term of confinement up to the maximum allowed under RCW 9A.20.021 for the underlying conviction if it finds, considering the purposes of this chapter, that the facts found are substantial and compelling reasons justifying an exceptional sentence.

(Emphasis added.)

C. Application of 2007 Amendments ¶27 The plain language of the current 2007-amended version of RCW 9.94A.537 clearly authorizes the superior court on remand to empanel a jury to make the factual findings necessary to support an exceptional sentence in this case. Accordingly, unless McNeal shows that the 2007 amendments do not apply to him or that the amendments are otherwise invalid, the trial court will have the authority to empanel a jury to make new exceptional-sentence factual determinations on remand.

1. RCW 9.94A.345 ¶28 McNeal cites RCW 9.94A.345, which provides, “Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.” He first argues that (1) he is entitled to be sentenced under the laWs in effect at the time he committed the 1996 offenses and (2) because the exceptional sentencing procedures at that time were unlawful, he cannot be resentenced on remand to an exceptional sentence. This argument fails.

¶29 The Pillatos court has already specifically rejected this argument:

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In this case, both past and present law allows for exceptional sentencing. The “law in effect when the current offense was committed,” reasonably read, includes the possibility of exceptional sentences, and the change in procedure does not violate the letter or purpose of RCW 9.94A.345.

159 Wn.2d at 473.

¶30 That Pillatos addressed the 2005 legislation, rather than the 2007 amendments, does not alter the fact that the law in effect when McNeal committed the current offenses provided for exceptional sentences. Thus, like the defendants i Pillatos, McNeal has no “vested right” to a standard-range sentence, without consideration of exceptional sentencing factors. We hold, therefore, that unde Pillatos, RCW 9.94A.537 authorizes the sentencing court to empanel a sentencing jury to considering aggravating factors to support an exceptional sentence on remand.

2. RCW 10.01.040 ¶31 McNeal next argues that the “savings clause,” RCW 10.01.040,[20] precludes application of the 2007 amendments to his case. This argument also fails.

¶32 Again, the Pillatos court has already rejected this argument, holding that RCW 10.01.040 “applies only to

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substantive changes in the law, not procedural ones, like this.” 159 Wn.2d at 472 (citing State v. Hodgson, 108 Wn.2d 662, 669-70, 740 P.2d 848 (1987), cert. denied, 485 U.S. 938 (1988)).

3. Presumption against Retroactive Application ¶33 McNeal further argues, “[T]here is a strong presumption against retroactive application of a statute,” and, for the 2007 amendments to apply, the amended statute must apply retroactively. Again, the Pillatos court also rejected this argument when it considered the 2005 legislation; the court concluded that because the 2005 amendments did not create any new legal consequences, it need not address whether this legislation applied retroactively or retrospectively. 159 Wn.2d at 471.

¶34 Similarly, as we noted above, the 2007 amendments did not create new legal consequences. Therefore, followin Pillatos, we need not address retroactive or retrospective application. McNeal’s argument — that the 2007 amendment, allowing empanelling of a special sentencing jury, does not apply to his resentencing on remand — fails.

4. Ex Post Facto ¶35 Finally, McNeal argues that the 2005 legislation and the 2007 amendments violate the constitutional prohibition against ex post facto laws.[21] Again, we first note that th Pillatos court specifically rejected this argument. 159 Wn.2d at 474-77.

¶36 Second, for a law to violate the ex post facto clause, it must, among other things, “disadvantage the person affected by it.” State v. Schmidt, 143 Wn.2d 658, 677, 23 P.3d 462 (2001). Here, the 2007 version of the statute merely allows a jury, rather than the court, to make factual determinations supporting exceptional sentences. This new

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procedure does not disadvantage McNeal by increasing the punishment to which he is potentially subject beyond that which was already possible when he committed the current offenses.

¶37 Moreover, the trial court here previously imposed an exceptional sentence for McNeal. The only difference on this remand will be that before the trial court can reimpose an exceptional sentence, the jury will first have to find the necessary supporting aggravating factors. Thus, imposing any potential exceptional sentence previously justified by the supporting facts under the law in effect at the time of his original exceptional sentence does not constitute an ex post facto imposition of new law. In short, on remand, McNeal will not be exposed to an exceptional sentence greater than the potential exceptional sentence to which he was exposed originally.

¶38 On the contrary, the procedural change arguabl decreases McNeal’s risk of receiving an exceptional sentence: Under this new procedure, the jury is required to find the aggravating factors beyond a reasonable doubt. In contrast, under the previous procedure, the trial court could find these factors by a mere preponderance of the evidence. Former RCW 9.94A.370(2) (1996). Because McNeal cannot show a disadvantage flowing from this new sentencing procedure on remand, he does not establish an ex post facto violation.

V. CONCLUSION ¶39 Although trial court did not err in applying the doubling provision to McNeal’s drug conviction sentence, it did err when it determined Blakely did not apply on resentencing following our previous remand. Accordingly, we vacate McNeal’s court-imposed exceptional sentences and remand for resentencing. On remand, the sentencing court may empanel a jury, under the current version of

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RCW 9.94A.537, to make the factual determinations required for imposing any exceptional sentences.

BRIDGEWATER, J., concurs.

QUINN-BRINTNALL, J. (concurring in part and dissenting in part)

¶40 — I agree with the majority that the court erred in ruling that Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), did not apply to John Kevin McNeal’s resentencing. But because I agree with this holding, I disagree with the result reached by the majority. First, I note that under Blakely, the term “statutory maximum” for Apprendi[22] purposes 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.” 542 U.S. at 303. It therefore follows that the doubling provision of former RCW 69.50.408(a) (1989) allows the trial court to double the statutory maximum (standard range) for McNeal’s second drug offense. Accordingly, the trial court’s sentence for McNeal’s drug offense was within the statutory maximum under the doubling provision and was not an exceptional sentence based on facts, other than the fact of a prior conviction, not reflected in the jury’s verdict. I am aware of our Supreme Court’s contrary holding, and agree with the premise, that the legislature intended to double the statutory maximum rather than the standard range. In re Pers. Restraint of Cruz, 157 Wn.2d 83, 90, 134 P.3d 1166 (2006). But because this definition of statutory maximum was expressly argued and rejected by the United States Supreme Court i Blakely, 542 U.S. at 303, and I cannot reconcil Cruz with the holding of our nation’s highest court, I am compelled to apply the Blakely definition here.

¶41 Moreover, I note that interpreting the statute as doubling the statutory maximum of 5, 10, or 20 years renders it meaningless because, after Blakely, the trial

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court lacks the authority to impose a sentence beyond the standard range based solely on the jury’s guilty finding of a second or subsequent drug offense. Thus, in order for former RCW 69.50.408(a) to have the intended effect of more seriously punishing recidivist drug offenders, aggravating factors other than prior drug offenses must be pleaded and proved to a jury beyond a reasonable doubt before the standard range would increase. To me this is an absurd result not compatible with legislative intent. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003); State v. Vela, 100 Wn.2d 636, 641, 673 P.2d 185 (1983); State v. Gaines, 109 Wash. 196, 200, 186 P. 257 (1919). Accordingly, I would hold that the statutory provision that “any person convicted of a second or subsequent [drug] offense . . . may be imprisoned for a term up to twice the term otherwise authorized” (former RCW 69.50.408(a)) means twice the standard range and that, under this interpretation, McNeal’s sentence on the drug charge was not an exceptional one.[23]

¶42 I also agree with the majority’s holding that our Supreme Court has decided that a jury, rather than the sentencing court, must find exceptional sentencing factors supporting the imposition of consecutive sentences under RCW 9.94A.589(1)(a).[24] In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 743, 147 P.3d 573 (2006) cert. denied, 127 S. Ct. 2876 (2007). And that on remand a specially-empanelled jury can consider whether the facts the trial court previously used to justify the exceptional consecutive sentence have been proved beyond a reasonable doubt.

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