Opinion
No. 53124-7-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-05283-0. Judgment or order under review. Date filed: 09/05/2003. Judge signing: Hon. Richard D. Eadie.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Calloway — Informational only (Appearing Pro Se), #784993, Wa State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362.
Jennifer L. Dobson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Amy R. Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Leonard Calloway pleaded guilty to taking a motor vehicle without permission and received a standard range sentence. Calloway contends the standard range was calculated incorrectly because the trial court included one point in his offender score based on a finding that Calloway was in community custody status at the time of the offense. We agree.
Whether a defendant was on community custody status at the time of an offense is a fact that must be submitted to a jury and proved beyond a reasonable doubt. State v. Jones, ___ Wn. App. ___, 107 P.3d 755 (2005). The State argues that the error is harmless. It also argues that it may seek to prove Calloway's status if the matter is remanded for resentencing, consistent with Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). But Blakely sentencing errors are not harmless and there is no procedure that would allow a jury to find aggravating circumstances on remand. State v. Hughes, ___ Wn.2d ___, ___ P.3d ___ (2005) (2005 WL 851137 (Wash)).
We remand for resentencing.
BAKER, ELLINGTON, and BECKER, JJ., Concur.