Opinion
No. 54297-4-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 03-1-00034-0. Judgment or order under review. Date filed: 04/30/2004. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Susan F. Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
A jury convicted Michael Hansen of first degree burglary and second degree assault. The trial court imposed an exceptional sentence on the second degree assault conviction. Hansen challenges the exceptional sentence as barred by Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The State concedes the sentence violates Blakely but argues that the error is harmless, that the trial court may impose an exceptional sentence on remand, and that the trial court on resentencing may impose consecutive sentences for the two offenses.
We agree that Hansen's sentence violates Blakely and must be vacated. The error, however, is 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 do not address the State's argument regarding consecutive sentences as the trial court has not made any such decision. We vacate the exceptional sentence and remand for resentencing.
BECKER, ELLINGTON and BAKER, JJ.