Opinion
No. 33819-0-II.
August 14, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 02-1-01658-5, Jill M. Johanson, J., entered September 7, 2005.
Affirmed in part and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Hunt and Penoyar, JJ.
Douglas Lee Lane appeals a Cowlitz County Superior Court decision holding that recent amendments to RCW 9.94A.535, are retroactive and permit it to empanel a jury for the purposes of resentencing. The legislature amended RCW 9.94A.537 expressly limiting State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007), and granting the trial court authority to convene a jury in any case where an exceptional sentence was imposed and a new hearing is required. Accordingly, we remand for resentencing.
See Laws of 2005, ch. 68, § 4.
A Commissioner of this court reviewed this matter pursuant to the court's own motion on the merits and referred it to a panel of judges. See RAP 18.14.
FACTS
On May 9, 2003, a jury found Lane guilty of two counts of second degree assault and one count of violation of a no contact order, but could not reach a verdict on an additional charge of second degree rape. Rather than risk a new trial on the rape count and face a 125-month to life sentence, Lane agreed to plead guilty to indecent liberties without forcible compulsion. He also agreed to an exceptional sentence of 72 months of confinement. The trial court accepted the plea but sentenced Lane to 120 months.
Lane appealed his exceptional sentence. On February 15, 2005, in an unpublished opinion, this court reversed and remanded the case to the trial court for resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), noting that "[i]f the State again seeks an exceptional sentence, it must prove the aggravating factors beyond a reasonable doubt to a jury." State v. Lane, noted at 125 Wn. App. 1044, 2005 Wash. App. LEXIS 278, at *6 (2005).
On April 14, 2005, our Supreme Court issued State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), holding that a sentencing court had no authority to empanel a jury to find aggravating facts to support an exceptional sentence. 154 Wn.2d at 148-52. The next day, the " Blakely fix" amendments to RCW 9.94A.535 became effective, authorizing juries for that purpose.
The amendments provide in part:
(1) At any time prior to trial or entry of the guilty plea if substantial rights of the defendant are not prejudiced, the state may give notice that it is seeking a sentence above the standard sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based.
(2) The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.
Laws of 2005, ch. 68, § 4.
In the trial court, the parties disagreed about whether the amendments applied retroactively. The State also argued that Lane's challenge to the imposition of an exceptional sentence constituted a breach of his plea agreement. The trial court ruled that the amendments were procedural and remedial and could apply to Lane's case. It rejected the claim that Lane had breached his agreement with the State. Thereafter, the parties stipulated and the trial court certified that its ruling involved a controlling question of law under RAP 2.3(b)(4). A Commissioner of this court granted review.
The matter was stayed pending resolution of Pillatos and State v. Coleman, 159 Wn.2d 509, 150 P.3d 1126 (2007). The Supreme Court settled the question of retroactivity, holding that the amendments to RCW 9.94A.535 apply only to sentencing proceedings held since it was signed into law on April 15, 2005. Pillatos, 159 Wn.2d at 465. But in 2007, the legislature amended RCW 9.94A.537 to expressly give the trial court authority to convene a jury in any case where an exceptional sentence was imposed and a new hearing is required. Thus, on remand, the trial court may empanel a jury in this case.
The State also argues that (1) Lane has breached the plea agreement, making it subject to rescission; and (2) Lane is bound by his stipulation to an exceptional sentence. We rejected the first argument in Lane's prior appeal. See Lane, 2005 Wash. App. LEXIS at *6.
The second claim is likewise unpersuasive. Lane's stipulation to imposition of an exceptional sentence of 72 months is not a stipulation to an exceptional sentence of any length. To support an exceptional sentence of 120 months, a properly empanelled jury must find facts establishing substantial and compelling reasons for such sentence. See State v. Hagar, 158 Wn.2d 369, 373-74, 144 P.3d 298 (2006).
The decision that a jury should be empanelled is affirmed, and this matter is remanded for resentencing under the provisions of RCW 9.94A.537. Lane has served at least 44 months and is entitled to full credit for that time served.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, P.J., PENOYAR, J. concur