Opinion
No. 22863-1-III
Filed: March 22, 2005
Appeal from Superior Court of Spokane County. Docket No. 03-1-03028-8. Judgment or order under review. Date filed: 03/18/2004. Judge signing: Hon. Neal Q. Rielly.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
This exceptional sentencing case is controlled by State v. Blakely, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The State agrees that Andra D. Kinlow's conviction for second degree assault, first degree malicious mischief, and harassment should be reversed because the judge, not the jury, decided the exceptional sentencing facts. Our analysis agrees with the State's concession. Thus, we do not reach Mr. Kinlow's other contentions that the exceptional sentence was not supported by the facts and that the evidence received violated the real facts doctrine. Accordingly, we vacate Mr. Kinlow's exceptional sentence and remand to the sentencing court for further sentencing proceedings.
FACTS
In September 2003, Mr. Kinlow was arrested and charged with first degree assault with a deadly weapon, first degree malicious mischief, second degree assault, and harassment arising from his unprovoked attack upon his former in-laws, Susan and Mark Whitney, in a Spokane restaurant parking lot. The facts were explained by Mr. Kinlow at trial as a `frustration release,' related to his recent divorce from Angela Kinlow and subsequent custody problems. Report of Proceedings (RP) at 394.
Because our issue relates to sentencing, we briefly note the guilt phase facts. The Whitneys were sitting in their truck, when Mr. Kinlow threw a hatchet through the back window. He then opened the driver's side door and began punching Mr. Whitney repeatedly while Mr. Whitney was restrained by his seatbelt. Mr. Kinlow was yelling about his children during the attack. Mrs. Whitney was struck in the head, apparently when she leaned over in an attempt to protect her husband. Mr. Whitney managed to get out of his seatbelt and out of the truck. Then, Mr. Kinlow grabbed a shovel out of the bed of Mr. Whitney's truck and struck Mr. Whitney in the head. Restaurant patrons rescued Mr. Whitney, taking the shovel from Mr. Kinlow and attempting to keep the two men apart. Mr. Kinlow retreated to his car and accelerated through the parking lot, narrowly missing several people and hitting a parked truck. Mr. Kinlow punched one of the patrons, David Strand, in the face, bending his glasses.
The jury found Mr. Kinlow not guilty of first degree assault, but guilty of second degree assault of Mr. Whitney, guilty of first degree malicious mischief for the damage to the parked truck, not guilty of second degree assault on Mr. Strand, and guilty of one count of misdemeanor harassment for threatening to kill Mr. Whitney.
At sentencing, the court allowed testimony from Mr. Kinlow's ex-wife, Angela Kinlow over Mr. Kinlow's objection. Ms. Kinlow testified to prior incidences of domestic violence, harassment, and threats from Mr. Kinlow. Ms. Kinlow testified that on September 13, 2003, Mr. Kinlow called and told her he hated her and would make her pay. She testified he later called and told her he had just `tried to kill grandpa.' RP at 538. Ms. Kinlow testified she was `hysterical' after this call. RP at 538. Ms. Kinlow opined the purpose of the assault was revenge. The court stated it would not consider the portions of Ms. Kinlow's testimony that violated the real facts doctrine.
The court imposed an exceptional sentence of 48 months for second degree assault, including 12 months for a weapons enhancement. Further, the court ordered an exceptional sentence of 36 months for first degree malicious mischief. Mr. Kinlow received a standard range 12-month sentence for the harassment conviction. The court based the exceptional sentence upon its findings of multiple uncharged victims, including Ms. Kinlow, and the emotional impact she suffered. Mr. Kinlow appealed solely the exceptional sentences.
ANALYSIS
Because the facts increasing the penalties beyond the statutory maximums were not submitted to the jury, the parties agree Mr. Kinlow's exceptional sentences are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, U.S. ___, 124 S. Ct. 2531, 159 L. Ed 2d 403 (2004). Considering Apprendi and Blakely, as analyzed below, we agree with the State's concession as a matter of law. See State v. Knighten, 109 Wn.2d 896, 902, 748 P.2d 1118 (1998) (review court is not bound by erroneous legal concession). Thus, our review is de novo. See Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Because we vacate Mr. Kinlow's exceptional sentencing, we do not reach Mr. Kinlow's other contentions.
Watch for this twist when the State or a party makes a legal concession. It is a helpful framework.
In Apprendi, the United States Supreme Court considered a Sixth Amendment challenge to an exceptional sentence, which was based on the sentencing court's determination that the defendant's crime was racially motivated. Apprendi, 530 U.S. at 466. These facts were not found by a jury, but solely by the sentencing court. Id. The Court reasoned: `It is unconstitutional for a legislature to remove from the jury the assessment of facts that increased the prescribed range of penalties to which a criminal defendant is exposed.' Id. at 490 (citations omitted). In invalidating the exceptional sentence, the court held, `[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Id.
I believe the negative was inadvertently ommited?
In Blakely, the United States Supreme Court again applied this rule to invalidate an exceptional sentence, where the facts supporting the sentencing court's finding of extreme cruelty were neither admitted by the petitioner nor found by a jury. Blakely, 124 S. Ct. at 2537. Significantly, Blakely established the statutory maximum for purposes of Apprendi analysis `is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Id. (emphasis in original). In other words, the statutory maximum is the maximum sentence the judge may impose without any additional findings. Id.
Here, the court based the exceptional sentences on its findings of multiple uncharged victims, and the emotional impact the attack had on Ms. Kinlow. As in Blakely, because these facts were not admitted by Mr. Kinlow, nor found beyond a reasonable doubt by a jury, Mr. Kinlow's exceptional sentences violate the Sixth Amendment. See id. at 2538. Accordingly, the State's concession is legally apt. We vacate the sentence and remand for further proceedings comporting with due process.
RCW 9.94A.535 does not contain the necessary process due Mr. Kinlow. As such, the courts have inherent authority to supplement the statute. See State v. Thorne, 129 Wn.2d 736, 769, 921 P.2d 514 (1996). Division One recently held this authority includes the authority to empanel a jury to determine the facts upon which the court may base an exceptional sentence. See State v. Harris, 123 Wn. App. 906, 925, 99 P.3d 902 (2004) (`It is appropriate to exercise this power in these circumstances because doing so fulfills the legislative intent underlying the exceptional sentence provisions of the SRA and because there are no procedural alternatives for cases that require fact-finding.'). We leave it to the trial court to decide what process is appropriate at this juncture, after considering the matter with the parties upon remand.
Mr. Kinlow's exceptional sentence is vacated and remanded for further proceedings.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., concur.