Opinion
No. 52043-1-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-01336-4. Judgment or order under review. Date filed: 02/21/2003. Judge signing: Hon. Catherine D Shaffer.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Brian Martin McDonald, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Craig Arthur Peterson, Attorney at Law, W 554 King Co Courthouse, 516 3rd Ave, Seattle, WA 98104-2385.
Roger Fualaau appeals his exceptional sentence upward for possession of a firearm. He argues that the exceptional sentencing statute is facially unconstitutional, that his waiver of a jury trial was not knowing and voluntary, that the trial court erred by considering acts unrelated to the charged offense in setting the sentence, and that the State violated its plea agreement with him by changing its sentencing recommendation. We affirm.
FACTS
In November 2001, Roger Fualaau attempted to sell a gun to Dustin Chesley. Fualaau loaded a magazine cartridge into the gun, fired it to show Chesley that it worked and removed the cartridge. Fualaau then squeezed the trigger again and the gun fired, hitting Chesley in the leg. Chesley was airlifted to Harborview.
In early January 2002 Fualaau admitted to police that he shot Chesley and claimed that it was an accident. The State charged Fualaau with one count of unlawful possession of a firearm under RCW 9.41.040(1)(a) and (2)(a).
Fualaau was arrested for unlawful possession of a firearm again in April 2002. In July and August 2002 Fualaau entered a plea agreement in which he agreed to plead guilty to the November 2001 charge of unlawful possession of a firearm. In return the State agreed to recommend a standard range sentence of 30 months, to move to dismiss another charge for unlawful possession in April and not to pursue any additional charges relating to the November or April incidents. The plea agreement provided that the `State's recommendation will increase in severity if additional criminal convictions are found or if the defendant commits any new charged or uncharged crimes, fails to appear for sentencing or violates the conditions of his release.'
In December 2002, the State charged Fualaau with two counts of kidnapping in the first degree and one count of assault in the second degree. These offenses were committed December 8, 2002. Neither offense was considered for sentencing purposes in this case.
The trial court held Fualaau's sentencing hearing in February 2003. The standard range sentence for Fualaau's crime was 26 to 34 months. Because Fualaau had been charged with new crimes between the taking of the guilty plea and the sentencing hearing, the state changed its sentencing recommendation from 30 to 34 months. Fualaau objected to the prosecutor's recommended change asserting the plea agreement provided for an increased sentence if he was convicted of a new crime, not if he was simply charged with a new crime. Fualaau requested a 26-month sentence, in part because as a paraplegic he would suffer more in prison than others. The trial court rejected both recommendations and instead imposed an exceptional sentence upward of 60 months. The trial court based the exceptional sentence on two aggravating factors: first, the severity of Chesley's injuries; second, Fualaau's possession of a firearm on April 7, 2002. The trial court stated that either factor standing alone warranted the exceptional sentence.
ANALYSIS I. Constitutionality
Fualaau argues that the United States Supreme Court recently declared Washington's Sentencing Reform Act (SRA) provisions relating to exceptional sentences facially unconstitutional. Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d. 403 (2004). This position was rejected in State v. Harris, 123 Wn. App. 906, 99 P.3d 902 (2004). We adhere to that ruling here.
II. Validity of the Jury Waiver
Fualaau argues that he did not validly waive his right to have a jury determine beyond a reasonable doubt the factual basis for an exceptional sentence. He argues that prior to the Blakely decision he did not know he had this right, as opposed to the statutory provision that allows the judge to find aggravating factors in his sentencing based on a preponderance of the evidence. Therefore, he could not knowingly and intelligently waive that right. Fualaau asserts that the waiver of the right to a jury trial under the plea should be limited under Blakely, specifically excluding a waiver of the right to have a jury decide on the existence of any aggravating factors beyond a reasonable doubt. Fualaau argues his waiver of a jury trial should be limited to a stipulation to facts and a waiver for sentencing only within the standard range. The state argues that Blakely does not preclude the trial court from imposing an exceptional sentence if the defendant either stipulates to the relevant facts or consents to judicial fact finding for sentencing. The state argues Fualaau did both here.
The state also argues that post-plea changes in the law do not render a plea involuntary, citing Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Additional authority was noted in State v. Hagar, No. 52809-2-I, 2005 WL 126481 at *2, n. 10. (Wash.Ct.App. Jan. 24, 2005) We do not find the briefing adequate to reach that issue in this case.
Fualaau's plea agreement included a stipulation to the facts for sentencing purposes:
In accordance with RCW 9.94A.370, the parties have stipulated that the court, in sentencing, may consider as real and material facts information as follows:
× as set forth in the certification(s) of probable cause and prosecutor's summary.
× as set forth in King County #02-1-03079-0 KNT.
The maximum sentence was stated as 10 years. The stated standard range sentence was 26 to 34 months. The prosecutor's sentencing recommendation was 30 months. The Statement of Defendant on Guilty Plea further stated: (g) The judge does not have to follow anyone's recommendation as to sentence. The judge must impose a sentence within the standard range unless the judge finds substantial and compelling reasons not to do so. If the judge goes outside the standard range, either [the defendant] or the State can appeal that sentence. If the sentence is within the standard range, no one can appeal the sentence.
In Harris, we vacated an exceptional sentence where the plea agreement provided that the court could rely on the police reports and other documents `at his bench trial,' and could use the affidavits of probable cause `for imposing a standard range sentence[.]' Because these stipulations were for purposes other than an exceptional sentence, they did not come within the Blakely exception. The trial court made no findings following the bench trial that would support aggravating factors. The aggravating factors the court relied on were outside the trial record. State v. Harris, 123 Wn. App. at 909. Unlike in Harris, the plea agreement entered by Fualaau did not restrict consideration of the stipulated facts only for purposes of a standard range sentence. And, the facts relied on by the trial court in imposing the exceptional sentence were within the facts stipulated to by Fualaau.
In State v. Hagar, No. 52809-2-I, 2005 WL 126481 (Wash.Ct.App. Jan. 24, 2005) the defendant entered a stipulation similar to that entered by Fualaau and on appeal made a similar argument that he could not have knowingly waived rights under Blakely that he was unaware of at the time of the plea agreement. This court affirmed his sentence. The court noted that the stipulation to facts was an integral part of the package negotiated. Both parties received benefits. Because the stipulation to facts and the resulting sentence cannot be challenged apart from the plea agreement itself, Hagar's sentence was affirmed. Hagar, 2005 WL 126481, at *2. Hagar challenged the plea agreement arguing that the plea agreement was based on a mutual mistake. This court noted that when a plea agreement rests on a mutual mistake as to the direct consequences of a plea, the plea is involuntary and the defendant is entitled to choose either withdrawal of the plea or specific performance of the plea agreement. Hagar, 2005 WL 126481, at *2. Hagar expressly stated he did not want to withdraw his plea agreement, but sought specific performance of his plea bargain in the form of re-sentencing within the standard range. In general, specific performance is available when the prosecutor has breached the plea agreement, or the defendant has been misinformed regarding a direct consequence of the plea. Hagar, 2005 WL 126481, at *2. However, the prosecutor had performed as promised and Hagar had not argued that the mistake concerned a direct consequence of his plea or that his plea was involuntary. Therefore, the remedy Hagar sought was not available.
As in Hagar, the state made charging and other concessions in exchange for Fualaau's guilty plea and stipulation to the facts for purposes of sentencing. Fualaau's stipulation to the facts for the purpose of sentencing was an integral part of the plea bargain. Fualaau challenges the validity of that stipulation, but unlike Hagar, he does not challenge the validity of his plea agreement. Under Hagar, that omission is fatal: `Given the stipulation's integral role in the plea agreement, the stipulation and resulting sentence cannot be challenged apart from the agreement itself.' Hagar, 2005 WL 126481, at *2.
III. Basis for Exceptional Sentence A. Standard of Review
We look to three factors in determining the appropriateness of an exceptional sentence:
(1) whether the reasons given by the sentencing judge are supported by evidence in the record, under the clearly erroneous standard of review; (2) whether the reasons justify a departure from the standard range, under de novo review, as a matter of law; or (3) whether the sentence is clearly too excessive or too lenient, under the abuse of discretion standard of review.
State v. Ferguson, 142 Wn.2d 631, 646, 15 P.3d 1271 (2001). We will not reverse an exceptional sentence:
unless the sentencing court's stated reason for imposing the exceptional sentence is clearly erroneous or its stated reason does not justify an exceptional sentence as a matter of law.
. . .
A stated reason justifying an exceptional sentence is legally adequate if it is substantial and compelling, and does not duplicate factors necessarily considered by the Legislature in computing the standard range. (internal citation omitted)
State v. Jacobson, 92 Wn. App. 958, 964-65, 965 P.2d 1140 (1998). The stated reason must be supported by written findings of fact and conclusions of law. State v. Halgren, 137 Wn.2d 340, 345, 971 P.2d 512 (1999).
B. The April 2002 Arrest
Fualaau argues the trial court erred by using his April 2002 arrest for unlawful possession of a firearm to justify an imposition of an exceptional sentence for the November 2001 possession charge. A trial court may not rely on facts that establish the elements of a more serious crime or additional crimes in its imposition of an exceptional sentence, except by stipulation or pursuant to RCW 9.94A.535(2). RCW 9.94A.530(2). Here, the trial court relied on Fualaau's later arrest to impose an exceptional sentence for this earlier crime. Neither exception to the rule allowed the trial court to do so. The State properly concedes that the trial court erred by imposing the exceptional sentence on this ground.
C. Chesley's Injury
At trial Fualaau argued against an exceptional sentence based on Chesley's injury because, according to him, the injury could be used to establish the elements of a more serious crime in violation of the real facts doctrine. `The real facts doctrine prohibits trial courts from imposing a sentence based on facts that compose the elements of an additional, unproven crime[.]' State v. Benefiel, 111 Wn. App. 789, 790, 46 P.3d 808 (2002), citing State v. Wakefield, 130 Wn.2d 464, 475-76, 925 P.2d 183 (1996). For instance, facts that establish the elements of witness tampering cannot be used to justify an exceptional sentence upward for child molestation. State v. Henshaw, 62 Wn. App. 135, 137-38, 813 P.2d 146 (1991). But, a trial court may `consider facts that are closely connected to the underlying, convicted of crime when imposing an exceptional sentence.' Benefiel, 111 Wn. App. at 792, citing Wakefield, 130 Wn.2d at 477. Fualaau pleaded guilty to unlawful possession of a firearm in the first degree. Fualaau argued to the trial court that in the process of selling the gun to Chesley he accidentally shot Chesley in the leg. The state agreed the shooting was not intentional. Fualaau did not argue on appeal what additional uncharged crime Chesley's injuries might establish. Based on the record before us it appears Chesley's injuries fail to establish the elements of an additional uncharged crime.
In Benefiel we dealt with an issue nearly identical to the one before us now. Benefiel hit his victim in the face with a shotgun. Benefiel, 111 Wn. App. at 791. A fight ensued and the shotgun fired, hitting the victim in the leg and causing serious injury. Benefiel, 111 Wn. App. at 791. The trial court imposed an exceptional sentence upward based on the serious nature of the victim's injuries. Benefiel, 111 Wn. App. at 790. Benefiel argued `that the trial court's reliance on the severity of [the victim's] injuries violated the real facts doctrine.' Benefiel, 111 Wn. App. at 792. On appeal we held that `[t]he severity of [a] victim's injuries is a valid aggravating factor . [and that] the severity of [the victim's] injuries [did] not demonstrate the elements of an additional, uncharged crime.' Benefiel, 111 Wn. App. at 792-93.
Fualaau's negligence in handling and discharging the gun was closely related to the underlying crime of unlawful possession of a firearm. The crime of unlawful possession does not ordinarily result in injury. Chesley was injured severely as a result of Fualaau's unlawful possession. The injuries were part of the factual record Fualaau stipulated could be used by the trial court at sentencing. The severity of a victim's injuries is a valid aggravating factor. Accordingly, the trial court did not err by imposing an exceptional sentence upward based on the severity of Chesley's injuries.
The trial court concluded that either of the aggravating factors independently provided substantial and compelling reasons to justify an exceptional sentence of 60 months. Additionally, it stated if `an appellate court were to affirm only one of substantial and compelling reasons justifying an exceptional sentence in this case, this court would impose the same sentence on the remaining substantial and compelling reasons.' Though the April arrest was not properly considered by the trial court, the exceptional sentence was properly supported by the findings of fact and conclusions of law relating to Chesley's injury.
IV. Breach of The Plea Agreement
Fualaau argues that the State violated its plea agreement by recommending a 34-month sentence. Specifically, he contends that the plea agreement provided for an increased sentence only if he was convicted of committing a new crime, not if he was simply charged with committing a new crime. The plea agreement provided that the `State's recommendation will increase in severity if additional criminal convictions are found or if the defendant commits any new charged or uncharged crimes, fails to appear for sentencing or violates the conditions of his release.'
A plea agreement is a binding contract when accepted by the trial court and here the trial court accepted the agreement. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997) Fualaau argues that this court should analyze this agreement under the law of contracts and that written contract terms should be construed against the drafter. Guy Stickney, Inc., v. Underwood, 67 Wn.2d 824, 827, 410 P.2d 7 (1966). He argues the plea agreement should be construed to require conviction to satisfy the unambiguous requirement that he commit a new crime before the prosecutor may change its sentencing recommendation. Fualaau argues that the state cannot revoke the plea agreement because he had not been convicted of a crime at the time of sentencing. His argument is not well taken.
The language of the plea agreements points to four triggers for withdrawal of the sentence recommendation. The first trigger is that any additional criminal convictions are found. The second trigger is commission of a crime which may or may not have been charged and therefore for which no conviction has occurred. The third is failure to appear for sentencing. The fourth is violation of the conditions of release. Under the first trigger, if Fualaau were convicted of a different crime between his conviction on this charge and sentencing, certainly the new offense would constitute newly discovered criminal history at the time of sentencing on the first conviction. We also note the language of the plea agreement does not expressly require conviction to make the second, third or fourth triggers effective. Fualaau's position that there is no crime until convicted would render the second prong of the agreement meaningless, since a conviction would already be covered by the first trigger. Fairly read, the second trigger advises the defendant that criminal conduct resulting in arrest will jeopardize the sentencing recommendation contained in the plea agreement, even if charges have not been filed or a conviction has not been entered. Fualaau was arrested and charged with an additional crime subsequent to entering into the plea bargain. This alleged criminal conduct was sufficient to relieve the state of the obligation to recommend the agreed sentence.
We affirm.
APPELWICK, SCHINDLER and AGID, JJ.