Opinion
No. 31279-4-II
Filed: February 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 03-1-01676-6. Judgment or order under review. Date filed: 12/12/2003. Judge signing: Hon. Thomas P. Larkin.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Chase Michaels appeals his sentence above the Sentencing Reform Act (SRA) standard range imposed upon his Pierce County conviction of second degree manslaughter. He contends that the sentencing procedure violated his Sixth Amendment right to trial by jury. The State concedes error on the basis of the decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We agree that the first aggravating factor is invalid under Blakely and vacate and remand for resentencing.
A commissioner of this court initially considered this matter pursuant to Michaels' motion for accelerated review, RAP 18.15, and thereafter referred it to a panel of judges. The commissioner also granted Michaels' motion to supplement his brief with a challenge to the second sentencing factor.
The victim was Phillip Clair. Michaels testified that he had driven Clair and three women to the Star Market Deli in Tacoma where they intended to 'fence' some stolen cigarettes. Witnesses said that while they were there, Clair and Michaels started fighting. Clair got the best of it; he punched Michaels several times in the face, knocked him to the ground and kicked him. Two of the women and a bystander eventually stopped the fight.
Michaels stood up and yelled to Clair, 'You're dead.' 3 Report of Proceedings at 86. He went back to his van, but Clair followed, still trying to punch him. Michaels got into the van, pulled away from the curb, drove a short distance, and then made a U-turn. He accelerated as he drove back down the street. Clair had started to cross the street and Michaels drove directly at him, neither braking nor swerving. He struck Clair, flipping Clair's body up into the air and over the roof of the van. He did not stop, even though the impact broke his windshield. Clair died two days later of multiple head injuries.
The State charged Michaels with first degree murder. However, the jury convicted him of second degree manslaughter. The standard range for that offense is 31 to 41 months. The sentencing court imposed an exceptional sentence of 72 months, finding that the offense included conduct more egregious than typical, and Michaels had an extensive history of 25 unscored prior misdemeanor convictions.
Michaels contends that the court erred in imposing an exceptional sentence because a jury did not make the factual findings necessary to support it. As the State concedes, the finding of conduct that is more egregious than typical is invalid under Blakely.
Under the SRA, an exceptional sentence upward may be based upon statutory or non-statutory aggravating factors. See RCW 9.94A.535. The SRA permits the trial judge to make the factual determinations necessary to establish aggravating factors. The factors may be established by a preponderance of the evidence, rather than beyond a reasonable doubt. In Blakely, the Supreme Court invalidated this procedure, holding that, except for the fact of a prior conviction, any fact that increases the penalty for a crime must be admitted by the defendant or submitted to a jury and proved beyond a reasonable doubt. 124 S. Ct. at 2536, 2538.
There were no admissions and no jury was involved in Michaels' sentencing. The first factor cannot be used to increase his sentence. However, issues pertaining to prior convictions are for the court. State v. Van Buren, 123 Wn. App. 634, 635, 98 P.3d 1235 (2004). Michaels' 25 misdemeanors did not count in his offender score, and they are a valid basis for an exceptional sentence. See State v. Atkinson, 113 Wn. App. 661, 669, 54 P.3d 702 (2002), review denied, 149 Wn.2d 1013 (2003); State v. Ratliff, 46 Wn. App. 325, 332, 730 P.2d 716 (1986), review denied, 108 Wn.2d 1002 (1987). Contrary to Michaels's contention, Blakely does not require that the jury decide whether his unscored convictions result in a sentence that is clearly too lenient. That is a legal judgment for the sentencing authority. Van Buren, 123 Wn. App. at 647-48.
The second aggravating factor is valid. However, it appears from the trial court's oral comments that its decision was influenced by both factors. We are not satisfied that the court would have imposed the same sentence based solely on Michaels's prior unscored misdemeanors. Accordingly, we vacate the sentence imposed and remand for resentencing consistent with Blakely. The trial court may, if it chooses, empanel a jury to consider whether Michaels's conduct was more egregious than that typical in cases of second degree manslaughter. See State v. Harris, 123 Wn. App. 906, 927-28, 99 P.3d 902 (2004); State v. Fero, ___ Wn. App. ___, 104 P.3d 49, 58 (2005).
10 Report of Proceedings at 617-18.
See State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d 57 (1996).
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.
MORGAN, J., and QUINN-BRINTNALL, C.J., Concur.