Opinion
No. 31123-2-II
Filed: February 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County. Docket No. 00-1-00114-8. Judgment or order under review. Date filed: 11/07/2003. Judge signing: Hon. Thomas J. Majhan.
Counsel for Appellant(s), James M. Bendell, Attorney at Law, PO Box 587, Port Townsend, WA 98368-0587.
Counsel for Respondent(s), Shane Richard Seaman, Attorney at Law, PO Box 1220, Port Townsend, WA 98368.
Charles Howard Robinson appeals the trial court's imposition of an exceptional sentence following his jury conviction for first degree child molestation. The State concedes error on grounds that the trial court violated Robinson's constitutional rights when it imposed an exceptional sentence based on aggravating factors that the jury did not determine, contrary to the United States Supreme Court's recent Blakely decision. Accepting the State's concession, we vacate Robinson's sentence and remand for resentencing.
Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS
A jury convicted Robinson of one count of first degree child molestation (RCW 9A.44.083) for molesting a neighbor's four-year-old son, for whom Robinson was babysitting. Because the case was tried pre-Blakely, no aggravating sentencing factors were presented to the jury for their determination.
The trial court determined that Robinson's standard sentencing range was 67-89 months of confinement. The State asked the trial court to impose an exceptional sentence of 360 months based on the following aggravating factors: (1) Robinson's conduct manifested deliberate cruelty to his victim, (2) Robinson knew or should have known that the victim was particularly vulnerable, (3) his crime involved multiple victims or multiple incidents per victim, (4) his crime involved a high degree of criminal sophistication and planning, and (5) Robinson used his position of trust and confidence to facilitate the commission of the crime.
The trial court agreed with the State:
I recall the testimony of the young victim, and the mother, and as I recall it, the child was given to Mr. Robinson — placed in Mr. Robinson's care as a babysitter . . . Throughout this trial I thought that this is a classic case of a perpetrator grooming the victim, and as I recall the testimony it happened on more than one occasion. There were suspicions that there were other victims but the State didn't have enough evidence to go forward on that.
Report of Proceedings at 14. Having determined that Robinson was subject to sentencing under RCW 9.94A.712, the trial court imposed an exceptional 360-month sentence, well above the standard range sentence.
Robinson appeals this exceptional sentence.
ANALYSIS
RCW 9.94A.712 applies when a non-persistent offender is found guilty of first degree child molestation. RCW 9.94A.712(1)(a)(i). Under this statute, the trial court imposes both a 'maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the statutory sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.' RCW 9.94A.712(3). RCW 9.94A.535 permits the trial court to impose an exceptional minimum sentence if it finds 'substantial and compelling reasons justifying an exceptional sentence' that were not considered when the standard range was set. RCW 9.94A.535.
We recently decided, in a split decision, that Apprendi and Blakely apply to a minimum sentence exceeding the standard sentence range imposed under RCW 9.94A.712 and RCW 9.94A.535 such that the jury, not the trial court, must first find the aggravating fact(s) to support an exceptional minimum sentence. State v. Borboa, ___ Wn. App. ___, 102 P.3d 183, 189 (2004).
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Although Judge Hunt filed a dissenting opinion in Borboa, she acknowledges that the majority's decision controls here.
Applying Borboa here, we hold that the trial court erred in imposing an exceptional 360-month sentence under RCW 9.94A.712 without first submitting to the jury the question of whether there were specific 'substantial and compelling reasons' to justify exceptional minimum sentence. Therefore, we accept the State's concession of error as to the trial court's manner of imposing Robinson's exceptional sentence.
In holding, as we must, that the trial court 'erred,' we note that, because the Supreme Court did not issue its Blakely decision and we did not issue our Borboa decision until after the sentencing at issue here, the trial court was not on notice that it was error to impose an exceptional sentence without first submitting the underlying aggravating factors to the jury.
Robinson further argues in his reply brief that the trial court should not be permitted to empanel a jury on remand to determine whether aggravating facts exist because (1) the record contains insufficient evidence to support the facts, and (2) he could not receive a fair hearing from the jury because of the nature of his offense. But he cites no authority to support this assertion.
Generally, without argument and citation to authority, we will not review an assignment of error. RAP 10.3(a)(5); State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995). Moreover, we have held that our courts have the inherent authority to empanel juries to consider aggravating sentencing factors. State v. Harris, 123 Wn. App. 906, 99 P.3d 902, 910 (2004); State v. Fero, ___ Wn. App. ___, 104 P.3d 49 (2005). Thus, Robinson does not prevail on this issue.
Applying Harris here, we vacate Robinson's sentence and remand the trial court to empanel a jury to consider exceptional sentence factors and for resentencing consistent with this opinion.
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 VAN DEREN, J., Concur.