State v. David

Full title: STATE OF WASHINGTON, Respondent, v. VICTOR MATTHEW DAVID, Appellant

Court: The Court of Appeals of Washington, Division One

Date published: Aug 27, 2007

140 Wn. App. 1018 (Wash. Ct. App. 2007)

140 Wash. App. 1018

Opinion

No. 49075-3-I.

August 27, 2007.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] BAKER, J.

This case was remanded to us by our Supreme Court for reconsideration in light of State v. Pillatos, ¹ and State v. Hagar.²

1 159 Wn.2d 459, 150 P.3d 1130 (2007).

2 158 Wn.2d 369, 144 P.3d 298 (2006).

Exceptional Sentence

This case had previously been remanded in light of our Supreme Court's decision in State v. Hughes.³ On remand, we held the exceptional sentence imposed on David was improper in light of Blakely v. Washington⁴ and reversed.

3 154 Wn.2d 118, 110 P.3d 192 (2005).

4 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

The only remaining question at the time was the appropriate sentencing procedure on remand. To impose an exceptional sentence, a jury would need to be impaneled to make the appropriate findings of fact. In Hughes, our Supreme Court determined that only the legislature may amend RCW 9.94A.535 to require this procedure.⁵ The legislature had recently done so, but whether the amendment applied retroactively had yet to be decided.

5 Hughes, 154 Wn.2d at 149.

In Pillatos, our Supreme Court held that trial courts do not have inherent authority to empanel sentencing juries.⁶ It also held that the new sentencing provisions applied only to "pending criminal matters where trials have not begun or pleas not yet accepted."⁷

6 Pillatos, 159 Wn.2d at 470.

7 Pillatos, 159 Wn.2d at 470.

Subsequently, in State v. Womac, ⁸ the court relied on Pillatos and rejected the State's suggestion that on remand, a trial court be permitted to convene a jury to hear evidence and make the findings necessary to support an exceptional sentence.⁹

8 160 Wn.2d 643, 160 P.3d 40 (2007).

9 Womack, 160 Wn.2d at 664.

In response to the holding in Pillatos, the legislature amended RCW 9.94A.537, the exceptional sentence act.¹⁰ The legislature noted that the Pillatos court had held that the changes made to the Sentencing Reform Act of 1981¹¹ concerning exceptional sentences in chapter 68, Laws of 2005 do not apply to cases where trials had already begun. The legislature then expressed its intent that the superior courts shall have the authority to impanel juries to find aggravating circumstances in all cases that come before the courts for trial or sentencing, regardless of the date of the original trial or sentencing.¹²

10 Engrossed H.B. 2070, 60th Leg., Reg. Sess. (Wash. 2007).

11 Ch. 9.94A RCW.

12 Engrossed H.B. 2070, 60th Leg., Reg. Sess., § 1.

In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.¹³

13 Engrossed H.B. 2070, 60th Leg., Reg. Sess., § 2(2).

The statute authorizes the trial court to impanel a jury. We remand for resentencing.

REMANDED.

WE CONCUR: