Opinion
No. 56502-8-I.
October 2, 2006.
Appeal from a judgment of the Superior Court for King County, No. 05-1-05978-4, Michael Heavey, J., entered June 27, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Robert Bell/Doc #819810 (Appearing Pro Se), M.c.c., Po Box 777, Monroe, WA, 98272.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Julie Anne Kays, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA, 98104-2390.
Affirmed by unpublished per curiam opinion.
Following a jury trial in King County Superior Court, Robert Bell was convicted of a felony count of attempting to elude a pursuing police vehicle, and a gross misdemeanor count of hit and run of an attended vehicle. Bell appeals from the judgment entered on the verdict, contending that the sentencing court erred in calculating his offender score by including a point for community custody status, and by including one point each for two prior out-of-state convictions without first engaging in a comparability analysis. He also contends that a sentencing condition requiring him to provide a DNA sample violated the United States and Washington Constitutions. Finding no error, we affirm.
FACTS
On January 23, 2005, a Federal Way police officer stopped a vehicle driven by Bell. As the officer approached, Bell sped away in the vehicle. Bell drove through an intersection and struck a car being driven by another individual. Bell exited his car, fled on foot, and was thereafter apprehended by another officer. The State charged Bell with a felony count of attempting to elude a pursuing police vehicle, and a gross misdemeanor count of hit and run of an attended vehicle.
The State also alleged that Bell was on community custody at the time of the crimes, a factor relevant to the calculation of the offender score and sentencing range. During the State's case in chief, Bell entered into a stipulation that he was on community custody at the time the crimes were committed, and the stipulation was read to the jury. The jury's verdict included a finding that Bell "was on community custody or community placement" at the time of the crimes.
After Bell's conviction, the sentencing court calculated his offender score for attempting to elude a pursuing police vehicle as nine, which resulted in a standard sentencing range of 22 to 29 months. The offender score calculation included one point for community custody status and two points for prior California convictions, both listed as "possess narcotics" in an appendix to the sentencing forms. The standard sentencing range calculated by the court was the same as that listed in the defendant's presentence report. Bell did not object to the offender score calculation at the sentencing hearing.
The trial court sentenced Bell to 29 months in custody for the felony conviction, and to an additional 6 months in custody for the gross misdemeanor. The court also ordered Bell to provide a biological sample for DNA testing purposes. DISCUSSION
I. Offender Score Calculation: Community Custody
The State suggests that that this court should not consider Bell's arguments regarding sentencing errors, asserting that they are raised for the first time on appeal. However, claims regarding errors in sentencing may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). Thus, we address each issue presented.
Bell contends that the sentencing court exceeded its statutory authority when it included one point in the calculation of his offender score for his community custody status. We disagree.
This case must be considered against the backdrop of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In that case, the court applied the rule that "[o]ther 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 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Under this rule, the former Washington sentencing procedure at issue in Blakely violated the defendant's Sixth Amendment rights because the facts supporting the defendant's exceptional sentence were neither admitted by the defendant nor found by a jury. Blakely, 542 U.S. at 303.
In State v. Jones, 126 Wn. App. 136, 144, 107 P.3d 755 (2005), review granted, 155 Wn.2d 1017 (2005), this court held that, in order to comply with Blakely, a jury must determine beyond a reasonable doubt whether a defendant is on community custody at the time of an offense. Under RCW 9.94A.525(17), a defendant's community custody status is a factor used to determine the applicable sentencing range, rather than a factor used to increase a punishment beyond the statutory maximum. The Jones court reasoned, however, that a determination of community custody status involves an issue of fact and is, therefore, subject to the Sixth Amendment requirement that a jury make the determination beyond a reasonable doubt. Jones, 126 Wn. App. at 144.
The Washington Supreme Court has heard argument in the Jones case, but has not yet issued an opinion. Division Three came to the opposite conclusion, determining that community custody status does not require a jury's fact finding. State v. Brown, 128 Wn. App. 307, 315, 116 P.3d 400 (2005); State v. Hunt, 128 Wn. App. 535, 542, 116 P.3d 450 (2005). Division Two is of two minds on the issue. See State v. Hochhalter, 131 Wn. App. 506, 521-22, 128 P.3d 104 (2006) (following Division One); State v. Giles, 132 Wn. App. 738, 739, 132 P.3d 1151 (2006) (following Division Three).
Sixth Amendment requirements are satisfied when the issue in question is either (1) found by the jury or (2) stipulated to by the defendant. Blakely, 542 U.S. at 301, 310. Here, the issue of whether Bell was on community custody at the time he committed the crimes alleged was both found by the jury and stipulated to by Bell. Compliance with Sixth Amendment requirements is not at issue.
Bell nevertheless argues that the inclusion of the community custody point was improper because there is no legislative procedure in place to plead and prove community custody status. As Bell points out, RCW 9.94A.537(2) sets forth the procedure by which aggravating circumstances may be tried to a jury. Bell argues that, because there is not a corresponding statute detailing the procedure by which to plead and prove community custody status, the trial court lacked authority to submit the issue to a jury. We disagree.
"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." RCW 9.94A.537(2).
There are two bases for the trial court's authority to submit the issue of community custody status to the jury. RCW 2.28.150 concerns the superior court's implied powers. It provides:
[I]f the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws.
CrR 6.16(b) concerns a court's authority to impanel a jury. It provides:
The court may submit to the jury forms for such special findings which may be required or authorized by law. The court shall give such instruction as may be necessary to enable the jury both to make these special findings or verdicts and to render a general verdict.
In State v. Davis, 133 Wn. App. 415, 427-28, 138 P.3d 132 (2006), both RCW 2.28.150 and CrR 6.16 were held to afford the trial court the authority to impanel a jury under circumstances similar to those here. The trial court in Davis imposed a sentence above the standard range. 133 Wn. App. at 420. The court complied with Blakely by giving a special interrogatory to the jury, asking it to determine if the facts supported finding an aggravating factor. RCW 9.94A.537 had not yet been enacted, and the defendant contended that the trial court exceeded its authority in using such a procedure in the absence of statutory authority. The Davis court disagreed, noting that the trial court had authority pursuant to RCW 2.28.150 to fashion a process that conformed to the law. The court explained:
CrR 6.16(b) provides the court with the authority to submit forms to the jury for special findings that are either required or authorized by law. This is precisely what the court did. RCW 9.94A.535 permitted the court to enter an exceptional sentence based upon aggravating factors it found to exist. But Blakely requires those aggravating factors to be found by a jury. Reading the statute and Blakely together, the court submitted a special interrogatory to the jury as to whether an aggravating factor existed. Based on the jury's affirmative answer to that interrogatory, the court found the existence of the aggravating factor and an exceptional sentence was warranted. There was no error.
Davis, 133 Wn. App. 427-28.
We find the reasoning of the court in Davis persuasive. Here, RCW 9.94A.525(17) requires a trial court to increase a defendant's offender score by one point if the defendant was on community custody at the time the offense was committed. Under Blakely and Jones, the determination of whether the defendant was on community custody must be made by the jury or admitted by the defendant. The trial court complied with the requirements of both RCW 9.94A.525(17) and Blakely by submitting the issue to the jury and increasing Bell's offender score according to the jury's finding. The court was within its authority to do so.
The Supreme Court's decision in State v. Hughes, 154 Wn.2d 118, 110 P.3d 192.
The trial court did not exceed its authority either by submitting the issue of Bell's community custody status to the jury or by including such status in its calculation of his offender score.
II. Offender Score Calculation: Out-of-State Convictions
Bell also argues that the trial court erred by including two points for prior California convictions because it failed to classify the convictions according to comparable Washington offenses. We disagree.
The Sentencing Reform Act of 1981 provides that "[o]ut-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law." RCW 9.94A.525(3). Bell argues that the prior California offenses for "possess narcotics" could have been for less than 40 grams of marijuana, which are misdemeanor offenses in Washington, RCW 69.50.4014, and, thus, not properly included in an offender score calculation.
The State bears the burden of establishing the classification of prior out-of-state convictions. State v. McCorkle, 137 Wn.2d 490, 495, 973 P.2d 461 (1999). However, a sentencing court may properly rely upon an acknowledgement to support such a classification. RCW 9.94A.530(2) provides:
(2005), overruled in part on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), does not compel a different result. In that case, the court refused to imply a procedure on remand to find facts necessary to impose an exceptional sentence. The Hughes court specifically limited its holding to procedures on remand. As the court stated, "[w]e are presented only with the question of the appropriate remedy on remand — we do not decide here whether juries may be given special verdict forms or interrogatories to determine aggravating factors at trial." Hughes, 154 Wn.2d at 149.
In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to [RCW 9.94A.537]. Acknowledgement includes not objecting to information stated in the presentence reports.
In State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999), the court specifically considered the acknowledgement of out-of-state convictions. The court noted that, because classification of out-of-state convictions is a mandatory step in the sentencing process, the classification process is
entirely distinct from the acknowledged existence of any fact which informs the court's conclusions. Accordingly, a defendant does not "acknowledge" the State's position regarding classification absent an affirmative agreement beyond merely failing to object.
Ford, 137 Wn.2d at 483 (footnote omitted).
Thus, Bell's mere failure to object during sentencing does not amount to an acknowledgement for the purposes of classification of the out-of-state convictions.
The Supreme Court also noted, however, that those out-of-state convictions included in the defendant's own proffered offender score calculation were properly included in the court's classification without any further proof of classification. Ford, 137 Wn.2d at 483 n. 5. Furthermore, in State v. Hunter, 116 Wn. App. 300, 302, 65 P.3d 371 (2003), affirmed sub nom. State v. Ross, 152 Wn.2d 220, 95 P.3d 1225 (2004), we applied the Ford reasoning, holding that the sentencing court properly adopted the State's classification of out-of-state convictions when the defense affirmatively acknowledged the correctness of that calculation.
Here, Bell's own presentence report included an assertion that the 22 to 29 month sentencing range suggested by the State was correct. This sentencing range results from an offender score of nine. Of necessity, Bell's two California convictions had to be included in the offender score of nine. If such convictions were not included, the offender score would have been seven and the sentencing range would have been 14 to 18 months. Thus, Bell's acknowledgement of the 22 to 29 month sentencing range was the same as an acknowledgement of the offender score of nine and the proper inclusion of the two California convictions. The trial court properly relied on that acknowledgement, and did not err in calculating the offender score and sentencing range consistent therewith.
III. DNA Sample
Bell also challenges the sentencing condition requiring that he submit a DNA sample. However, we rejected an identical Fourth Amendment challenge to this procedure in State v. Surge, 122 Wn. App. 448, 460, 94 P.3d 345 (2004), review granted, 153 Wn.2d 1008 (2005). While Bell also advances an argument under article I, section 7 of the Washington Constitution, he fails to provide the analysis required by State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). Thus, we do not consider his claim. State v. Nguyen, No. 55443-3-I (Wash.Ct.App. Sept. 11, 2006). Accord State v. Reichenbach, 153 Wn.2d 126, 131 n. 1, 101 P.3d 80 (2004).
Affirmed.
COX and BAKER, JJ., concur.