Opinion
No. 38384-5-II.
September 22, 2009.
Appeal from the Superior Court, Thurston County, No. 07-1-00305-7, Christine A. Pomeroy, J., entered September 5, 2008.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Armstrong, JJ.
April S. Frazier appeals her exceptional sentence for first degree burglary, second degree manslaughter, and first degree rendering criminal assistance. Frazier argues that the sentencing court exceeded its statutory authority when it rejected the State's plea bargain and imposed an exceptional sentence. Frazier argues she did not stipulate to any aggravating factors in her plea agreement and the trial court found aggravating factors in the absence of a jury when Frazier did not waive her jury trial rights with regard to aggravating factors. Frazier asks this court to vacate her sentence and remand for resentencing. The State agrees with Frazier's argument, concedes that the sentencing court violated former RCW 9.94A.535(3) (2005) when the judge, rather than a jury, found aggravating factors, and agrees that we should vacate the exceptional sentence and remand for resentencing. We accept the State's concession, vacate Frazier's exceptional sentence, and remand for resentencing.
FACTS
The State entered into a plea agreement with Frazier on September 28, 2007. Under the plea agreement, the State agreed to reduce Frazier's charges to one count of first degree burglary (count I), one count of second degree manslaughter (count II), and one count of first degree rendering criminal assistance (count III) in return for Frazier's truthful and voluntary testimony at the trial of Michael Sublett and Christopher Olsen, her co-defendants, for the first degree murder of Jerry Totten. In Frazier's plea statement, she admitted that she went to Totten's home with Sublett and Olsen with the intent to steal property and "got Jerry to let us in his house." Clerk's Papers at 8. Frazier agreed to (1) waive her right to immediate sentencing, (2) delay her sentencing hearing until after Sublett and Olsen's trial, (3) attend and voluntarily participate in all proceedings related to Sublett and Olsen's trial, and (4) waive her right to a jury trial for the crimes charged in the plea agreement. Judge Pomeroy presided over both Sublett and Olsen's trial and Frazier's sentencing hearing.
Frazier's standard sentencing range for the pleaded charges was 36 to 48 months for count I, 41 to 54 months for count II, and 15-20 months for count III, followed by 36 to 48 months of community custody for count I and 18 to 36 months of community custody for count II. It is undisputed that Frazier's offender score was 4.
Neither in its charges nor at the sentencing trial did the State allege any aggravating factors. Before delivering Frazier's sentence, the court heard statements from Totten's family members and neighbors. The prosecution asked the sentencing court to sentence Frazier to the maximum time, within the standard sentencing range, for each count. The prosecution asked for 54 months for count I, 48 months for count II, and 20 months for count III, and that the sentencing court order the sentences be served concurrently.
The sentencing court acknowledged that the State had valid reasons for entering into a plea agreement with Frazier. But on its own motion, the sentencing court also found the following aggravating factors: (1) Frazier used her position of trust and confidence to facilitate the commission of the crimes, (2) the victim was debilitated by age and infirmities and was extremely vulnerable, and (3) Frazier's conduct in the commission of the crime manifested extreme indifference to the victim. After making these findings, the trial court imposed an exceptional sentence of 120 months for count I, 120 months for count II, and 60 months for count III, to be served concurrently.
Frazier appeals her exceptional sentence.
analysis
A trial court may impose a sentence only as authorized by statute. In re Pers. Restraint of Tobin, 165 Wn.2d 172, 196 P.3d 670 (2008). The United States Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). A defendant may challenge an illegal or erroneous sentence for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (quoting State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)).
Frazier argues that the court imposed an unlawful exceptional sentence after erroneously entering findings of aggravating factors that Frazier could not have stipulated to because the State did not include them in the third amended information to which Frazier pleaded guilty. Moreover, they were not found by a jury beyond a reasonable doubt. We agree.
Exceptional Sentence
A court may impose an exceptional sentence outside the standard range for an offense if it finds, considering the purposes of the Sentencing Reform Act of 1981, ch. 9.94A RCW, that there are substantial and compelling reasons justifying an exceptional sentence. Former RCW 9.94A.535(1). Either a defendant or the State may appeal an exceptional sentence. RCW 9.94A.585(2). To reverse an exceptional sentence, a reviewing court must find either that (1) the sentencing court's reasons were not supported by the record before the court, (2) those reasons did not justify an exceptional sentence, or (3) the exceptional sentence was clearly excessive or too lenient. RCW 9.94A.585(4). This court applies a "clearly erroneous" standard when reviewing whether a sentencing court's reasons for an exceptional sentence are supported by the record. State v. Solberg, 122 Wn.2d 688, 705, 861 P.2d 460 (1993).
Generally, absent a defendant's stipulation, the State must charge and prove to a jury beyond a reasonable doubt any aggravating sentencing factors. Former RCW 9.94A.535(2), (3); State v. Pillatos, 159 Wn.2d 459, 477, 150 P.3d 1130 (2007). The aggravating factors the sentencing court used to support imposing an exceptional sentence on Frazier did not meet these requirements. The sentencing court found the following aggravating factors: (1) Frazier's conduct during the commission of the current offense manifested deliberate cruelty to the victim, former RCW 9.94A.535(3)(a); (2) Frazier knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance, former RCW 9.94A.535(3)(b); and (3) Frazier used her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense, former RCW 9.94A.535(3)(d)(iv). But the State had not alleged any aggravating sentencing factors and Frazier did not stipulate to the imposition of an exceptional sentence. Accordingly, the sentencing court was required to sentence Frazier within the standard range for each charge. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Frazier waived her Sixth Amendment right to a jury trial for conviction of first degree burglary, second degree manslaughter, and first degree rendering criminal assistance. But she did not waive her right to have a jury find uncharged aggravating factors that could support an exceptional sentence. The court erred by imposing an exceptional sentence based on aggravating factors it found in violation of former RCW 9.94A.535(3).
We accept the State's concession of error, vacate the exceptional sentence, and remand for resentencing.
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.
BRIDGEWATER, P.J. and ARMSTRONG, J., concur.