Opinion
No. 65744-5-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for King County, No. 10-1-02351-4, Douglass A. North, J., entered July 9, 2010.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Daniel Crane appeals the exceptional sentence imposed following his conviction for felony harassment and several misdemeanors. Citing State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), he contends the court's instructions erroneously required unanimity before the jury could answer "no" on the verdict form for the aggravating factors supporting the exceptional sentence. The State argues that Crane cannot raise this claim for the first time on appeal and that Bashaw does not apply to aggravating factors. These arguments are defeated by our recent decision in State v. Ryan, No. 64726-1 (Wash. Ct. App. April 4, 2011). The State also argues that Bashaw is contrary to legislative intent. But this court is bound by the Supreme Court's decision in that case. See State v. Williams, 93 Wn. App. 340, 344, 968 P .2d 26 (1998). Because the court's instructions were erroneous under Bashaw, and because there is no claim that the error was harmless, we vacate the special verdicts and exceptional sentence on the felony harassment count and remand for further proceedings consistent with this opinion.
Reversed in part and remanded for further proceedings.