STATE v. WALTON, 126 Wn. App. 1051 (2005)

No. 30215-2-IIThe Court of Appeals of Washington, Division Two.
April 5, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Thurston County. Docket No. 01-1-00045-8. Judgment or order under review. Date filed: 04/08/2003. Judge signing: Hon. Gary R. Tabor.

Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.

Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.

ARMSTRONG, J.

Arthur W. Walton appeals from an exceptional sentence imposed following his guilty plea to a charge of first degree incest. This court previously remanded for the sentencing court to supplement the record with the presentence investigation (PSI) report and to determine whether Walton’s unscored misdemeanor convictions warranted an exceptional sentence.[1] In this appeal, Walton asserts that his exceptional sentence is unconstitutional under Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We reverse and remand for resentencing within the standard range.

Facts
The State initially charged Walton with four counts of first degree incest for incidents occurring during 1994 and through early 1997. RCW 9A.64.020(1)(a). Upon Walton’s guilty plea to one count, the court dismissed the other three. The court imposed a 72-month exceptional sentence but this court remanded for resentencing based on a corrected offender score and to supplement the record. At the resentencing hearing, the court then imposed a 60-month exceptional sentence for the following reasons:

(1) Victim particularly vulnerable due to developmental delay; (2) Prior criminal history of Juv. conviction for comm. w/a minor for Imm. Purp.; (3) Failure to use birth control.

Any one of exceptional factors is sufficient in of itself to justify exceptional sentence.

Clerk’s Papers (CP) at 47. In its oral decision, the court explained factor (2): `Secondly, that your prior criminal history, that is, looking at felony offenses, did not adequately reflect a history of gross misdemeanor conviction of having sex with a minor. And I understand that that was a juvenile conviction for a communication with a minor for immoral purposes.’ Report of Proceedings (RP) (April 8, 2003) at 8.

Discussion
The State concedes that the sentencing court’s reasons (1) and (3) fail under Blakely v. Washington, supra, because they represent factual findings the State did not prove to a jury beyond a reasonable doubt. The sole question here is whether factor (2) falls under the exception Blakely noted for prior criminal history: “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, 124 S. Ct. 2536 (quoting Apprendi v. New Jersey, 530 U.S. at 490 (citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350
(1998))) (emphasis added).

Walton argues that this court should not rely on this exception because Almendarez-Torres is no longer viable precedent, the State did not plead or prove the prior conviction beyond a reasonable doubt, and whether a sentence is too lenient is a jury question.

We need not address these claims because the sentencing court relied on an unproven fact to support the exceptional sentence. The offense of communicating with a minor for immoral purposes proscribes the following conduct:

(1) A person who communicates with a minor for immoral purposes is guilty of a gross misdemeanor, unless that person has previously been convicted of a felony sexual offense under chapter 9.68A, 9A.44, or 9A.64 RCW or of any other felony sexual offense in this or any other state, in which case the person is guilty of a class C felony punishable under chapter 9A.20 RCW.
(2) As used in this section, `minor’ means a person under sixteen years of age.

Former RCW 9.68A.090 (1984) (Laws of 1984, ch. 262, sec. 8). Neither RCW 9.68A.090 nor chapter 9.68A RCW explicitly define `immoral purposes’ or `communicates’ but case law holds that `immoral purposes’ refers to sexual misconduct and `communicates’ includes conduct as well as words. State v. Falco, 59 Wn. App. 354, 358, 796 P.2d 796 (1990). See State v. Schimmelpfennig, 92 Wn.2d 95, 101-04, 594 P.2d 442 (1979) (‘communication with a minor for immoral purposes’ means `any spoken word or course of conduct with a minor for purpose of sexual misconduct is prohibited;’ upholding conviction of a man who had merely attempted to entice young girls into the back of his van for sexual purposes). See also State v. McNallie, 120 Wn.2d 925, 933, 846 P.2d 1358 (1993) (RCW 9.68A.090 contemplates more than a minor’s participation in sexual acts for a fee or the appearance of a minor engaging in sexual acts for film or live performance, it `prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct.’).

By relying on the prior conviction, the court could rely on no more than was proven beyond a reasonable doubt. Because Walton’s conduct leading to this prior conviction could have involved a broad range of conduct, the sentencing court’s finding that Walton had sex with a minor was never proven nor admitted.

This situation is analogous to that in State v. Ortega, 120 Wn. App. 165, 84 P.3d 935 (2004), where the court held that a prior out-of-state offense did not qualify as a strike under the Persistent Offender Accountability Act, RCW 9.94A.570, because the victim’s age was relevant to deciding the seriousness of the offense in Washington. While the offense could have qualified as a strike, the out-of-state statute proscribed a wider age net (younger than 17) than did Washington’s comparable offense (younger than 12). Thus, proof of the prior conviction did not necessarily prove the facts underlying the offense. The court noted: `We conclude that Apprendi prohibits a sentencing court’s consideration of the underlying facts of a prior conviction if those facts were not found by the trier of fact beyond a reasonable doubt.’ Ortega, 120 Wn. App. at 174.

Here, the sentencing court relied on facts not necessarily proven at the prior adjudication. According to the PSI, Walton was charged on May 5, 1984, with indecent liberties: `The circumstance involved Walton having sexual contact with a ten-year-old girl; Walton was 15 years old. On June 19, 1984, the offense was amended to Communicating With a Minor For Immoral Purposes.’ CP at 38. The State chose not to prove `sexual contact’ then. The sentencing court cannot now rely on this unproven act.

This matter is again remanded for resentencing within the standard range.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

MORGAN, A.C.J. and HOUGHTON, J., Concur.