Opinion
No. 31904-7-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 92-1-02471-5. Judgment or order under review. Date filed: 06/04/2004. Judge signing: Hon. Vicki Hogan.
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Robert Reed appeals his exceptional sentence of 185 months for first degree rape and second degree assault of a child. He contends that a jury did not find the aggravating factors beyond a reasonable doubt, and as a result, his sentence violated the decision in Blakely v. Washington. The State concedes this error. We accept the State's concession, reverse, and remand for sentencing within the standard range.
Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004).
FACTS
The State charged Robert Reed with one count of first degree child molestation and three counts of first degree rape of a child. Pursuant to plea negotiations, the prosecutor offered to amend the information and to recommend a Special Sex Offender Sentencing Alternative (SSOSA) if the defendant was found eligible.
A clinical psychologist questioned Reed and found he was likely to reoffend due to a long history of raping and molesting children. He nonetheless concluded that Reed was amenable to treatment. The prosecutor decided not to recommend the SSOSA sentence and instead offered to drop two of the charged counts and recommend a standard range sentence in exchange for a guilty plea. On April 6, 1998, Robert Reed entered a guilty plea to one count of first degree rape and one count of second degree assault of a child. At sentencing, the State recommended a standard range sentence. The community corrections officer requested an exceptional sentence. The trial court imposed an exceptional sentence of 185 months for the rape charge and 54 months for the assault charge, to run concurrently. Reed appealed the exceptional sentence.
On appeal, the Court of Appeals affirmed the convictions in an unpublished opinion, but remanded for resentencing due to the inadequacy of the record in supporting the exceptional sentence. State v. Reed, 98 Wn. App. 1055, 2000 WL 16652, at *4 (2000). On remand, the trial court imposed the same exceptional sentence of 185 months.
Reed again appealed, arguing that the trial court acted vindictively in imposing the same exceptional sentence. The Court of Appeals rejected Reed's arguments and affirmed the conviction and sentence in an unpublished opinion. See State v. Reed, 110 Wn. App. 1080, 2002 WL 500353, review denied, 147 Wn.2d 1022 (2002). Reed then filed a personal restraint petition, which was granted in part. The Court of Appeals remanded the case for resentencing. See In Re PRP of Robert N. Reed, Order Granting Petition in Part, No. 29271-8-II (2003).
The trial court again imposed the same 185-month exceptional sentence, explicitly finding the presence of five aggravating factors based on information provided by the victim and her family and by the SSOSA evaluator.
Reed appealed, arguing that the exceptional sentence was not based on aggravating factors found by a jury beyond a reasonable doubt and was, therefore, a violation of Blakely.
ANALYSIS I. Blakely v. Washington
Other than facts concerning prior convictions, `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.' Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The statutory maximum referenced in Apprendi is the maximum sentence a judge may impose, and the judge may base the sentence only on facts admitted by the defendant or reflected in the jury verdict. Blakely v. Washington, U.S., 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004). Therefore, a defendant's Sixth Amendment right to a jury trial is violated when the trial court imposes an exceptional sentence above the standard range based on aggravating factors found by the judge and not the jury. Blakely, 124 S. Ct. at 2538.
A Blakely violation can never be harmless error. State v. Hughes, Wn.2d, 110 P.3d 192, 205-08 (2005). Applying harmless error analysis to a Blakely violation is the equivalent of speculating on the jury's verdict. Id. at 208.
Reed received an exceptional sentence based on aggravating factors not determined by a jury. The State concedes that Reed's sentence was an unconstitutional violation of Blakely and requires vacation and resentencing.
We accept the State's concession and reverse Reed's exceptional sentence.
II. Remedy on Remand
Recently, the Washington State Supreme Court found that the proper remedy for a Blakely violation is remand for imposition of a standard range sentence. Hughes, 110 P.3d at 211. There is no procedure statutorily in place that allows juries to be convened to decide aggravating factors and impose exceptional sentences either after conviction or on remand after appeal. Hughes, 110 P.3d at 208. Fixing legal punishments for criminal offenses is a function for the Legislature. State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719 (1986). Where the Legislature has not created the post-conviction or post-appeal procedure for the convening of juries to find aggravating factors, and instead explicitly provided for judges to do so, the court cannot imply such a procedure on remand. Hughes, 110 P.3d at 208.
In accordance with the recent Supreme Court decision, we reverse Reed's exceptional sentence and remand for sentencing within the standard range.
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.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.