Opinion
No. 32050-9-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 99-1-01375-0. Judgment or order under review. Date filed: 07/23/2004. Judge signing: Hon. M Karlynn Haberly.
Counsel for Appellant(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Counsel for Respondent(s), James Lewis III Reese, Attorney at Law, 612 Sidney Ave, Port Orchard, WA 98366-4553.
Michael Leroy Cole was convicted of first degree child molestation and sentenced to life in prison without the possibility of parole as a persistent offender. The Supreme Court reversed his sentence based on its ruling in State v. Delgado. 148 Wn.2d 723, 727, 63 P.3d 792 (2003). On remand, the State requested an exceptional sentence, alleged numerous aggravating factors, and asked the trial court to empanel a jury under United States v. Blakely. 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The State now appeals the trial court's refusal to empanel a jury to determine the existence of aggravating circumstances in support of an exceptional sentence. Finding no error, we affirm.
FACTS
Cole confessed to molesting three year old I.K. on at least two occasions by fondling, rubbing, anally penetrating her with his fingers, and rubbing her vaginal area.
On April 10, 2000, the State charged Cole with first degree child molestation. Cole waived his right to a jury, and the case proceeded to trial. At the conclusion of Cole's bench trial, the court found Cole guilty and entered written findings. The court sentenced Cole to life without parole as a persistent offender.
Cole appealed his conviction and sentence arguing, among other things, that his two-strike sentence was improper because his prior out-of-state conviction for first degree sexual abuse was not comparable to any Washington offense. Initially, we rejected Cole's argument, finding his offense comparable to child molestation in the first degree. RCW 9A.44.083(1); Delgado, 148 Wn.2d at 727.
Subsequently, the Washington Supreme Court decided Delgado, holding that prior offenses were not subject to comparability analysis for purposes of the two-strike statute in effect at the time of Cole's offense. 148 Wn.2d at 727. The Supreme Court remanded Cole's case for reconsideration in light of Delgado. Upon reconsideration, we issued an amended opinion reversing Cole's life sentence.
On June 3, 2004, the State filed a sentencing memorandum, indicating its intent to seek an exceptional sentence on the basis of the following aggravating circumstances: (1) future dangerousness; (2) particular vulnerability; (3) abuse of trust; (4) multiple acts against the same victim; and (5) rapid recidivism. The trial court set the case for sentencing.
On July 24, 2004, the United States Supreme Court issued its opinion in Blakely, holding that with the exception of prior convictions and facts admitted by the defendant, a jury must find aggravating factors in support of an exceptional sentence beyond a reasonable doubt. 124 S. Ct. at 2536. In response, the State filed a notice of intent to seek an exceptional sentence, along with a list of witnesses it intended to call to testify at the sentencing hearing.
The trial court continued the original sentencing date and ordered briefing on the issue of the court's authority to empanel a sentencing jury. After argument, the trial court concluded that no present mechanism existed to impose an exceptional sentence. The trial court then imposed a high end standard range sentence of 130 months. The State appeals.
ANALYSIS
The State contends that the trial court erred when it refused to empanel a jury to determine the existence of aggravating circumstances in support of an exceptional sentence. Cole responds that the trial court had no authority to empanel a jury under the exceptional sentence provisions of the Sentencing Reform Act of 1981.
In State v. Hughes, the Washington Supreme Court ruled that trial courts are without authority to empanel a jury on remand: Where the legislature has not created a procedure for juries to find aggravating factors and has, instead, explicitly provided for judges to do so, we refuse to imply such a procedure on remand.
No. 74147-6, 75053-0, 75063-7, 2005 WL 851137, at *14 (Wash. Apr. 14, 2005). Under Hughes, the trial court cannot convene a jury to consider aggravating factors on remand and, therefore, must impose a sentence within the standard range. 2005 WL 851137 at *14. Here, the trial court correctly ruled that it had no authority to empanel a jury and properly imposed a standard range sentence.
Cole further argues that we must affirm the trial court's standard range sentence because aggravating factors are essential elements of the crime and must, therefore, be alleged in the information before conviction. Because we affirm Cole's standard range sentence on other grounds, we do not consider this argument.
We affirm.
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 HUNT, J., concur.