Opinion
No. 55927-3-I.
February 25, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 99-1-00831-9, Steven J. Mura, J., entered March 14, 2005.
Reversed and remanded by unpublished per curiam opinion.
In these linked appeals, Joe Bone-Club challenges the exceptional sentences he received in separate prosecutions. Both sentencing courts rested their sentences on Bone-Club's high offender score and their conclusion that a standard range sentence would be "clearly too lenient." Former RCW 9.94A.535(2)(i). Bone-Club contends, and the State concedes, that he is entitled to resentencing in both cases because, contrary to State v. Hughes, 154
Although both appeals have long and tortuous procedural histories, they ultimately stem from 2005 sentencing proceedings that resulted in Bone-Club receiving concurrent 154 month exceptional sentences for possession of cocaine in one cause, and two counts of possession of cocaine and two counts of possession of cocaine with intent to deliver in the other.
Wn.2d 118, 110 P.3d 192 (2005), the clearly too lenient determination was made by the court, not a jury. The parties disagree, however, on whether an exceptional sentence may be imposed when Bone-Club is resentenced.
Bone-Club argues that there is no authority to impose an exceptional sentence on remand based on the "clearly too lenient" factor. The State, on the other hand, argues that recent amendments to the exceptional sentence statutes provide that authority. But the decisions in State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007) and State v. Vance, ___ Wn. App. ___, ___ P.3d ___ (2008) demonstrate that both the 2005 and 2007 amendments provide no such authority in the cases before us. Under Pillatos, the 2005 amendments do not apply here because Bone-Club's trials were completed prior to the amendments' effective date. Under Vance, the 2007 amendments do not apply because the "clearly too lenient" factor is not included in the exclusive list of aggravating circumstances that may be found by a sentencing jury. Finally, Vance and State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007) foreclose any argument that the error in these cases was harmless. Accordingly, the exceptional sentences must be reversed and remanded for resentencing.
Bone-Club's argument regarding the erroneous inclusion of current offenses in his criminal history is moot since he will be resentenced and the determination of his criminal history can be revisited at that time. Bone-Club's Statements of Additional Grounds for Review raise no meritorious issues.
Reversed and remanded for resentencing.