Opinion
66057-8-I
03-19-2012
STATE OF WASHINGTON, Respondent, v. CLINTON ROBINSON, Appellant.
UNPUBLISHED OPINION
Spearman, J.
A jury convicted Clinton Robinson of second degree trespass, residential burglary, and making a false statement to an officer. The jury found in a special verdict that he committed the burglary "shortly after" being released from incarceration on a prior burglary sentence, and the trial court imposed an exceptional sentence on that basis. Robinson challenges the exceptional sentence on grounds that the rapid recidivism enhancement statute is unconstitutionally vague. We reject this argument because the mere fact that a law requires subjective evaluation to determine whether it has been violated does not mean the law is unconstitutional.
We must nevertheless reverse the exceptional sentence because the jury instruction for the special verdict was faulty. Under State v. Ryan, 160 Wn.App. 944, 252 P.3d 895, rev. granted, 172 Wn.2d 1004, 258 P.3d 676 (2011) and State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), it is manifest constitutional error to instruct a jury that it must be unanimous in order to find the State failed to prove an aggravating factor. As was the case in Ryan, the jury was so instructed here. We vacate the exceptional sentence and remand for further proceedings.
FACTS
A jury convicted Clinton Robinson of second degree trespass, residential burglary, and making a false statement to an officer. The jury was then charged with answering the special verdict of whether Robinson committed the burglary "shortly after being released from incarceration." The evidence showed that Robinson was released from confinement on June 14, 2009 and he committed the crime of residential burglary on August 23, 2009. The instructions for the special verdict informed the jury that it must unanimously agree before it could return the special verdict:
You must fill in the blank provided in the special verdict form the word "yes" or "no, " according to the decision you reach.
Because this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the special verdict form[s] to express your decision. . . .
The jury found Robinson had committed the burglary shortly after being released from incarceration. On the basis of the special verdict finding, the trial court imposed an exceptional sentence. Robinson appeals the exceptional sentence.
DISCUSSION
Robinson first argues that RCW 9.94A.535(3)(t), which permits an aggravating factor of commission of an offense "shortly after" release from confinement, is unconstitutionally vague and therefore violates the Due Process clause of the Fourteenth Amendment. We disagree.
We review de novo a challenge to the constitutionality of a statute. State v. Shultz, 138 Wn.2d 638, 643, 980 P.2d 1265 (1999). Where the statute does not impinge on First Amendment rights, we evaluate a vagueness challenge "by examining the statute as applied under the particular facts of the case." State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992). Statutes are presumed constitutional. City of Spokane v. Vaux, 83 Wn.2d 126, 129, 516 P.2d 209 (1973). When a statute does not define terms alleged to be unconstitutionally vague, we "may 'look to existing law, ordinary usage, and the general purpose of the statute' to determine whether 'the statute meets constitutional requirements of clarity.'" State v. Hunt, 75 Wn.App. 795, 801, 880 P.2d 96 (1994) (quoting State v. Russell, 69 Wn.App. 237, 245, 848 P.2d 743 (1993)).
A statute violates the due process clause if (1) it "does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed;" or (2) it "does not provide ascertainable standards of guilt to protect against arbitrary enforcement." State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001) (internal quotation marks omitted) (quoting City of Bellevue v. Lorang, 140 Wn.2d 19, 30, 992 P.2d 496 (2000)); see also State v. Zigan, 2012 WL 504606, at *3, (No. 29464-1, filed Feb. 16, 2012).
"The requirement that penal statutes define a criminal offense with sufficient definiteness, i.e., provide fair warning, protects individuals from being held criminally accountable for conduct which a person of ordinary intelligence could not reasonably understand to be prohibited." City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990) (citing Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975)). "Accordingly, the test for whether the penal statute is sufficiently definite is common intelligence." Douglass, 115 Wn.2d at 179 (citing State v. Motherwell, 114 Wn.2d 353, 369, 788 P.2d 1066 (1990).
"This test, however, does not demand impossible standards of specificity or absolute agreement." Douglass, 115 Wn.2d at 179 (citing Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855 (1983)). Thus, "the due process requirement that a penal statute define a criminal offense with sufficient definiteness does not extend to invalidating statutes which a reviewing court believes could have been drafted with greater precision." Id. (citing Rose, 423 U.S. at 49). "In other words, 'vagueness in the constitutional sense is not mere uncertainty.'" Id. (quoting State v. Smith, 111 Wn.2d 1, 10, 759 P.2d 372 (1988). "Vagueness in the constitutional sense means that persons of ordinary intelligence are obliged to guess as to what conduct the ordinance proscribes." Id.
Under RCW 9.94A.535(3)(t), a sentencing court may impose an aggravated exceptional sentence after a finding that "[t]he defendant committed the current offense shortly after being released from incarceration." The term, "shortly after" is not defined. Division Three of this court recently held this statute is not unconstitutionally vague in State v. Zigan, 2012 WL 504606, (No. 29464-1, filed Feb. 16, 2012). In Zigan, the court reviewed multiple appellate court decisions on this issue, including State v. Butler, 75 Wn.App. 47, 876 P.2d 481 (1994) (affirming rapid recidivism exceptional sentence after defendant committed robbery and attempted rape on same day he was released from prison); State v. Saltz, 137 Wn.App. 576, 154 P.3d 282 (2007) (affirming rapid recidivism exceptional sentence after defendant committed malicious mischief 30 days after release); and State v. Combs, 156 Wn.App. 502, 232 P.3d 1179 (2010) (eluding offense committed six months after release from prison is not committed "'shortly after being released.'") Combs, 156 Wn.App. at 506.
Although we reversed the exceptional sentence in Combs, we also held "[w]e do not set an outer time limit on what constitutes a short period of time. That period will vary with the circumstances of the crime involved[.]" Combs, 156 Wn.App. at 506.
The Zigan court concluded the fact that the rapid recidivism statute requires some subjective evaluation does not make it unconstitutionally vague:
Based on the above cases, RCW 9.94A.535(3)(t) requires some subjective evaluation. But that a law requires subjective evaluation to determine whether the enactment has been violated does not mean the law is unconstitutional. City of Spokane v. Douglass, 115 Wn.2d 171, 181, 795 P.2d 693 (1990). As applied here, RCW 9.94A.535(3)(t) is not vague. Mr. Zigan committed the offense just over two months after his incarceration. No reasonable person could believe that the circumstances presented here constitute anything other than "[t]he defendant committed the current offense shortly after being released from incarceration." RCW 9.94A.535(3)(t). Thus, the term is not unconstitutionally vague as applied to the facts.Zigan, 2012 WL 504606, at *4. Here, as in Zigan, Robinson committed the burglary just over two months after being released from a prior burglary incarceration. The facts in these two cases are markedly similar, and we adhere to Zigan.
Robinson next argues that his exceptional sentence must be reversed because the jury instruction for the aggravating factor of rapid recidivism was faulty under Bashaw and Ryan. We agree and vacate the exceptional sentence on that ground.
The trial court in this case instructed the jury that, given Robinson was previously found guilty of residential burglary, it was to determine whether Robinson committed the crime "shortly after being released from incarceration." The instructions for this special verdict informed the jury that it must unanimously agree before it could return the special verdict:
You must fill in the blank provided in the special verdict form the word "yes" or "no, " according to the decision you reach. Because this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the special verdict form[s] to express your decision. . . .
But "'special verdicts do not need to be unanimous in order to be final.'" State v. Campbell, 163 Wn.App. 394, 402, 260 P.3d 235 (2011) (quoting State v. Goldberg, 149 Wn.2d 888, 895, 72 P.3d 1083 (2003); see also Bashaw, 169 Wn.2d at 146. "In Goldberg, the court concluded that the trial court erred by treating a jury's nonunanimous decision on a special verdict as an indication of a deadlocked jury rather than as a final answer of 'no.'" Campbell, 163 Wn.App. at 402-03 (citing Goldberg, 149 Wn.2d at 893). As the court in Campbell pointed out, "[o]ur Supreme Court has since made clear that a nonunanimous jury determination on a special verdict operates as an acquittal as to the allegation at issue." Id. at 403 (citing Bashaw, 169 Wn.2d at 146).
Likewise, in State v. Ryan, we held that language instructing the jury it must be unanimous to answer "no" on a special verdict amounted to constitutional error. In that case, the jury convicted Ryan of second-degree assault and felony harassment, and found Ryan committed the crimes with the aggravating circumstances of a pattern of abuse and domestic violence. Ryan, 160 Wn.App. at 947. We held the instruction relieved the State of its burden to prove its allegations beyond a reasonable doubt:
The State's burden is to prove to the jury beyond a reasonable doubt that its allegations are established. If the jury cannot unanimously agree that the State has done so, the State has necessarily failed in its burden. To require the jury to be unanimous about the negative-to be unanimous that the State has not met its burden-is to leave the jury without a way to express a reasonable doubt on the part of some jurors.Id.
The State argues Bashaw does not apply here, because the rapid recidivism enhancement statute, RCW 9.94A.535(3)(t), "expressly requires jury unanimity for a finding of 'no.'" According to the State, this is unlike the school bus stop sentencing enhancement at issue in Bashaw, RCW 69.50.435, which is silent as to unanimity. Id. But as the State concedes, we previously addressed and rejected this argument in Ryan. The State also contends any error was not of constitutional magnitude, and as such, cannot be raised for the first time on appeal. We disagree. As we held in Ryan, our Supreme Court's decision in Bashaw, "compels the conclusion the error is both manifest and constitutional" and can be raised for the first time on appeal. Ryan, 160 Wn.App. at 948. We acknowledge that Division Three of this court has reached the opposite conclusion on this issue. See State v. Nunez, 160 Wn.App. 150, 248 P.3d 103, rev. granted, 172 Wn.2d 1004, 258 P.3d 676 (2011). But we disagree with Nunez, adhere to Ryan, and vacate the exceptional sentence.
On remand, the trial court may impanel a jury to consider the aggravating factor with proper instructions. State v. Reyes-Brooks, 164 Wn.App. 193, 267 P.3d 465, 469 (2011).
Remanded for further proceedings consistent with this opinion.
WE CONCUR.