Opinion
No. 31079-1-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 00-1-01041-9. Judgment or order under review. Date filed: 11/10/2003. Judge signing: Hon. Roger a Bennett.
Counsel for Appellant(s), David Schultz, Attorney at Law, 430 NE Everett, Camas, WA 98607-2115.
Counsel for Respondent(s), Kimberley Robert Farr, Attorney at Law Clark Co Pros Attys Offc, PO Box 5000, Vancouver, WA 98666-5000.
Edward Reiter appeals his exceptional sentences for child rape and molestation. He argues the trial court's finding that he abused a position of trust (1) is not specific enough to permit meaningful review, (2) is not supported by substantial evidence, and (3) conflicts with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He also argues that the trial court erred in imposing a DNA collection fee.
At the time Reiter filed his appeal, the Washington State Supreme Court had held that Apprendi did not apply to Washington's method of imposing exceptional sentences under the Sentencing Reform Act. State v. Gore, 143 Wn.2d 288, 314, 21 P.3d 262 (2001). While Reiter's appeal was pending, the U.S. Supreme Court applied Apprendi to invalidate Washington's exceptional sentencing procedure. Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
As required by the United States Supreme Court decision in Blakely, we reverse the exceptional sentence and remand to the trial court for resentencing. We also reverse the trial court's imposition of the DNA fee.
See n. 1.
FACTS
Based on two minor victims' allegations, the State charged Reiter with two counts of first degree child rape, one count of first degree child molestation, and two counts of communicating with a minor for immoral purposes. The children said the crimes occurred during the two years Reiter lived with them and their mother.
I. First Trial and Exceptional Sentence
Reiter waived his right to a jury trial. Before trial, the court granted the State's motion to dismiss the two counts of communicating with a minor for immoral purposes because the statute of limitations had expired. Following a bench trial, the court found Reiter guilty of the two counts of child rape and one count of child molestation.
After calculating Reiter's standard range at 159 to 211 months for the rapes and 108 to 144 months for the molestation, the trial court imposed an exceptional sentence of 360 months based on the aggravating factors of abuse of a position of trust and deliberate cruelty.
II. First Appeal And Resentencing on Remand
Reiter appealed. In an unpublished opinion, we (1) affirmed his convictions, (2) held that the trial court had miscalculated his offender score and had violated the real facts doctrine in considering the evidence that established deliberate cruelty, and (3) remanded for resentencing. On remand, the trial court again imposed an exceptional sentence, based solely on abuse of a position of trust. It also ordered Reiter to pay a $100 DNA collection fee.
State v. Edward John Reiter, 115 Wn. App. 1009, WL 141321, review denied, 149 Wn.2d 1031 (2003).
Reiter appealed. A commissioner of this court initially considered this matter under RAP 18.14 and subsequently referred it to a panel of judges.
ANALYSIS I. Exceptional Sentence
To support imposition of an exceptional sentence on remand, the trial court found, 'Defendant utilized his position in the victims['] family to facilitate his crimes and abused his position of trust to accomplish his offense.' Reiter argues both that there is insufficient evidence to support this finding and that the trial court's imposition of an exceptional sentence, without a jury trial and using a preponderance of evidence standard, violated his constitutional rights under the United States Supreme Court decision in Apprendi, 530 U.S. 466.
Clerk's Papers (CP) at 17.
Noting that the Supreme Court's subsequent decision in Blakely controls, we address Reiter's second argument first and reverse his exceptional sentence.
Under the Sentencing Reform Act (SRA), an exceptional sentence upward from a standard range sentence may be based upon statutory or nonstatutory aggravating factors. See RCW 9.94A.535. Although the SRA permits the trial court to make the factual determinations necessary to establish aggravating factors by a preponderance of the evidence, the United States Supreme Court invalidated this procedure in Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The Court held 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. Blakely, 124 S. Ct. at 2536-37.
Laws of 2003, ch. 267 sec. 4, effective July 27, 2003.
The Blakely court held that Washington's sentencing procedure violated constitutional guarantees because the facts supporting the aggravating factor of deliberate cruelty were not found by a jury. Blakely, 124 S. Ct. at 2537. See also 2538, n. 8, explaining that the sentencing procedure is improper even though the judge is not compelled to find that any set of facts constitutes an aggravating factor, because the judge cannot make a judgment about the presence of aggravating factors except on the basis of facts not found by the jury as elements of the crime. Implicit in these statements is the premise that once the jury finds the evidentiary facts, the judge may properly determine the effect of those facts. Thus, Blakely does not require a jury to determine whether the aggravating facts they have found are sufficiently substantial and compelling to justify an exceptional sentence. That remains the responsibility of the sentencing judge.
Here, Reiter admitted at trial the following facts: (1) He was the victims' mother's boyfriend; (2) he lived with the victims for approximately two years, during the period in which the victims said the offenses occurred; and (3) sometimes he was the children's only caretaker while their mother was at work. He denied not only the charges of rape and molestation, but also that he used or abused that position of trust to further the crimes.
Using the preponderance of the evidence standard, the trial court at sentencing inferred that Reiter had used his position of trust to rape and to molest the children. Based on this aggravating factor, the trial court imposed an exceptional sentence well above the standard range sentence.
Subsequent to Reiter's resentencing on remand, the United States Supreme Court invalidated the type of sentencing procedure used here. In Blakely, the Court held that a trial court could not impose an exceptional sentence beyond the standard range without first submitting the aggravating factor to a jury to find the necessary facts proven beyond a reasonable doubt. We hold, therefore, that Reiter's exceptional sentence is invalid under Blakely.
II. DNA Fees
Finally, Reiter argues, and the State agrees, that the portion of his sentence imposing a DNA-sample-collection fee is erroneous because the statute authorizing the fee does not apply to him. RCW 43.43.7541 authorizes imposing a $100 DNA-sample-collection fee as part of a sentence for felonies 'specified in RCW 43.43.754 that [were] committed on or after July 1, 2002.' But Reiter committed his crimes in 1993 and 1994, well before the effective date of this statute. Thus, this statutory fee does not apply to him.
Accordingly, we remand to the trial court to vacate the DNA-collection-fee portion of Reiter's sentence. We also vacate the exceptional sentence and remand to the trial court for further proceedings, which may include empanelling a jury to consider the aggravating factor of abuse of trust. See State v. Clarke, Wn. App. ___, 103 P.3d 262 (2004) and State v. Fero, Wn. App. ___, 104 P.3d 49 (2005). If on remand, the jury finds the existence of a valid, aggravating factor, the trial court can again consider imposition of an exceptional sentence for Reiter.
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, A.C.J. and ARMSTRONG, J., Concur.