Opinion
No. 53058-5-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-1-00904-5. Judgment or order under review. Date filed: 08/11/2003. Judge signing: Hon. Thomas J. Wynne.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
Tobin Scott Darrow, Attorney at Law, Prosc Atty Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4046.
Cynthia Cornethan pleaded guilty to one count of forgery. Based on Cornethan's extensive criminal history, the sentencing court imposed an exceptional sentence. We conclude that the sentencing court did not engage in impermissible judicial factfinding and did not abuse its discretion in setting the length of the exceptional sentence. Nor did the court violate Cornethan's constitutional rights by ordering her to provide a biological sample for DNA identification. Accordingly, we affirm Cornethan's sentence.
On September 3, 2002, Cornethan entered an Arlington bank and attempted to cash a check for $795.89. When the teller noticed that the payor's signature did not match the account holder's signature, Cornethan fled. Cornethan later pleaded guilty to one count of forgery.
At sentencing, the court calculated the standard range for the offense to be 12 to 14 months. Based on Cornethan's history of 53 prior misdemeanor convictions, 26 of which were for offenses involving theft, the court concluded that the standard-range term was clearly too lenient and imposed an exceptional sentence of 30 months.
On appeal, Cornethan first challenges the length of the exceptional sentence, arguing that the 30-month term was clearly excessive. We review the length of an exceptional sentence solely for an abuse of discretion. The sentencing court abuses its discretion in this regard only if the length of the exceptional sentence is based on untenable grounds or the sentence is so long that, in light of the record, it 'shocks the conscience of the reviewing court[.]'
State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995).
Ritchie, 126 Wn.2d at 396 (quoting State v. Ross, 71 Wn. App. 556, 571, 861 P.2d 473 (1993)).
Cornethan concedes that the sentencing court correctly determined her criminal history, including 53 prior misdemeanor convictions, and that an extensive history of prior unscored misdemeanors is a statutory aggravating factor that justifies an exceptional sentence. She argues that given the 'pettiness' of the offense, the 30-month term was excessive when compared to exceptional sentences imposed in other reported appellate decisions. But the supreme court has rejected any suggestion that the length of an exceptional sentence must be proportionate to sentences imposed in similar cases. The length of the exceptional sentence in this case was only slightly more than double the high end of the standard range. When viewed in light of Cornethan's extensive criminal history, we cannot say the 30-month term shocks the conscience or is otherwise unreasonable. The sentencing court did not abuse its discretion in setting the length of Cornethan's sentence.
See RCW 9.94A.535(2)(j).
Ritchie, 126 Wn.2d at 396-97.
Cornethan has also filed a Statement of Additional Grounds for Review, challenging the length of the sentence. In addition to the same argument raised by counsel, she alleges that the trial court failed to consider her 'recent accomplishments' when setting the length of her sentence. But Cornethan has failed to identify the nature of these accomplishments or indicate how they were called to the sentencing court's attention. Accordingly, she has failed to demonstrate any abuse of discretion.
See RAP 10.10(a).
Cornethan next contends that RCW 43.43.754, which required her to provide a biological sample for DNA identification, violated her Fourth Amendment right against unreasonable searches. This issue is controlled by our recent decision in State v. Surge, in which we rejected an identical argument.
122 Wn. App. 448, 94 P.3d 345 (2004), review granted, Wn.2d (2005).
See also State v. S.S., 122 Wn. App. 725, 726, 94 P.3d 1002 (2004) (cheek swabs are authorized method of collecting biological samples for the DNA databank).
Relying on Blakely v. Washington, Cornethan filed a supplemental brief containing two additional assignments of error. She first contends that in Blakely, the United States Supreme Court declared Washington's exceptional sentencing provisions facially unconstitutional and that the case must therefore be remanded for entry of a standard-range sentence. But this court recently rejected similar contentions in State v. Harris. Cornethan also contends the sentencing court engaged in improper judicial factfinding when it imposed an exceptional sentence. She argues that under Blakely, a jury must make determine whether her multiple prior misdemeanor convictions resulted in a standard range sentence that was 'clearly too lenient.' She further maintains that this aggravating factor does not fall within the 'prior conviction' exception recognized in Blakely and Apprendi v. New Jersey.
U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
123 Wn. App. 906, 99 P.3d 902 (2004).
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
In State v. Clarke, this court rejected identical arguments, concluding that '[t]he determination that the presumptive sentence is clearly too lenient is an exercise of judicial discretion that stands after Blakely.' As did the Clarke court, we decline to speculate about the future validity of the prior conviction exception.
Wn. App., 103 P.3d 262 (2004).
Clarke, 103 P.3d at 267; see also State v. Alkire, 124 Wn. App. 169, 177, 100 P.3d 837 (2004).
Clarke, 103 P.3d at 267; see also Alkire, 124 Wn. App. at 177.
Affirmed.