Opinion
No. 53301-1-I
Filed: March 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-07727-1. Judgment or order under review. Date filed: 10/17/2003. Judge signing: Hon. Cheryl B. Carey.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Micha Schwabland/Doc#819156 (Appearing Pro Se), Mcc — Wa State Reformatory, P.O. Box 777, Monroe, WA 98272-0777.
Counsel for Respondent(s), Amy R. Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Michael Schwabland was charged with domestic violence felony violation of a court order for contacting the victim, K.M. Schwabland had three prior felonies which involved domestic violence and eleven prior misdemeanors, six of which he admitted were domestic violence convictions involving K.M. After finding that Schwabland's criminal history `demonstrates that the present offense is part of an ongoing pattern of physical abuse of the victim,' and that Schwabland's unscored misdemeanor criminal history resulted in a presumptive sentence that was too lenient in light of the purpose of the Sentencing Reform Act (SRA), RCW 9.94A.010, the court sentenced Schwabland to an exceptional sentence of 40 months. Schwabland argues that his exceptional sentence does not pass constitutional muster under Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and even if it does, the sentence is invalid under the SRA. We affirm the judgment and sentence.
FACTS
On August 21, 2003, the King County prosecutor charged appellant Michael Schwabland with domestic violence felony violation of a court order for contacting the victim, K.M., in violation of a court order. The charge alleged that Schwabland had at least two prior convictions for violating no contact orders, in contravention of RCW 26.50.110(1), (5).
RCW 26.50.110 provides that a knowing violation of a court order of protection is a gross misdemeanor. However, violation of a court order of protection is a class C felony where the offender has at least two previous convictions for violating the provisions of an order issued under chapter 26.50, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW. RCW 26.50.110 (1), (5).
Schwabland pleaded guilty on October 8, 2003. He was sentenced on October 15, 2003. The State submitted Schwabland's criminal history, which listed two prior felony violations of a court order, domestic violence, and one conviction for malicious mischief, second degree. The State included one point in Schwabland's offender score for each prior felony offense and one point because the current offense was committed while on community custody, for an offender score of four. The State also listed the following eleven adult misdemeanors committed by Schwabland:
Harassment (03/20/02) Criminal trespass, first degree (11/11/00) No contact order violation (03/03/01) Violation of a no contact order (12/05/00) Violation of a no contact order (12/05/00) Violation of a protection order (12/05/00) Assault, fourth degree (10/18/00) Assault, fourth degree (10/18/00) Assault, fourth degree (10/18/00) Assault, fourth degree (07/16/00) Possession of marijuana (10/26/99)
Clerk's Papers at 21.
Schwabland does not contest on appeal that his offender score at sentencing was four and the standard range sentence for his current offense was 22-29 months. The State recommended an exceptional sentence of 40 months. This recommendation was based primarily on Schwabland's prior unscored misdemeanor offenses, although the State did mention that Schwabland's prior convictions also depicted a pattern of domestic violence against the same victim, K.M. Schwabland admitted that six of his prior misdemeanor convictions were domestic violence convictions involving K.M. He did not agree that the 40-month exceptional sentence was warranted.
Although not relevant to our analysis, we note that the court initially orally found that there were only six convictions from Shoreline involving K.M., but later said in the written findings that there were seven.
The court imposed an exceptional sentence of 40 months, stating that Schwabland's `behavior shows a complete disregard for the law.' 2 Report of Proceedings at 13. The court's later written findings said that K.M. was also the victim in Schwabland's prior felony convictions for domestic violence felony violations of a court order, and second degree malicious mischief, as well as his misdemeanor convictions for harassment and first degree criminal trespass. The court noted that all five of these prior crimes involved domestic violence. The court also noted that Schwabland had six convictions for domestic violence violation of court orders and four convictions for assault fourth degree domestic violence.
The court recognized that Schwabland's offender score was four and that the standard range for the level V offense was 22-29 months. The court also noted that the statutory maximum for the offense was 60 months. In support of imposing a 40-month sentence, the court stated:
The current offense involves domestic violence, and the criminal history demonstrates that the present offense is part of an ongoing pattern of physical abuse of the victim manifested by multiple incidents over a prolonged period of time. Further, the defendant's prior unscored misdemeanor criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010. The court finds that, considering the purpose of this chapter, each of the foregoing factors provides in itself a substantial and compelling reason to depart from the guidelines.
Clerk's Papers at 37-38 (emphasis added).
Schwabland appeals his exceptional sentence.
DISCUSSION I. Blakely and Washington's Sentencing Reform Act (SRA)
The jury trial guarantees of the Sixth Amendment require that `[o]ther than the fact of a prior conviction, 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.' Blakely v. Washington, U.S., 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Blakely emphasized that the `statutory maximum' for Apprendi purposes is `the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely, 124 S. Ct. at 2537 (citing Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) (''the maximum he would receive if punished according to the facts reflected in the jury verdict alone'' (quoting Apprendi, 530 U.S. at 483); Harris v. United States, 536 U.S. 545, 563, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002).
Thus, where a defendant pleaded guilty to second degree kidnapping involving domestic violence and use of a firearm resulting in a standard range of 49 to 53 months, the Blakely court rejected a sentencing court's imposition of a 90-month sentence based on the trial court's finding of `deliberate cruelty' because the finding was not based on facts admitted in the guilty plea or found by a jury. Because the maximum standard range sentence for the charged crime was 49 to 53 months, the Supreme Court also rejected the argument that the sentencing court had not exceeded the statutory maximum since the crime was a Class B felony and the statutory maximum for all Class B felonies was 10 years. Blakely, 124 S. Ct. at 2537-38. See also Ring v. Arizona, 536 U.S. at 603-09 (applying Apprendi to an Arizona law that authorized the death penalty if the judge found one of ten aggravating factors, and holding that the defendant's constitutional rights had been violated); Apprendi, 530 U.S. at 491-97 (sentencing court's imposition of a 12-year sentence, despite the usual 10-year maximum, based on judge's finding that the crime was committed `with a purpose to intimidate . . . because of race, color, gender, handicap, religion, sexual orientation or ethnicity' violated the Sixth Amendment because the judge imposed a sentence greater than the maximum under state law without the challenged factual finding).
Schwabland argues that Blakely, because it specifically discussed exceptional sentences authorized by Washington's Sentencing Reform Act (SRA), has made the SRA facially invalid. He asserts that his exceptional sentence is thus void and requires remand for resentencing. We recently rejected this same argument in State v. Harris, 123 Wn. App. 906, 99 P.3d 902 (2004). We adhere to Harris, for the reasons there stated, without further discussion.
Schwabland next argues that the findings made by the trial court, that his criminal history demonstrated an `ongoing pattern of physical abuse of the victim' and that his unscored misdemeanor history `results in a presumptive sentence that is clearly too lenient in light of the purpose of [the SRA],' were not based on facts solely in the guilty plea or prior convictions, as required by Blakely. Thus, he asserts, the findings are invalid and his sentence must be vacated and his case remanded for resentencing within the standard range. This argument also fails.
We note that the trial court found that each basis for its imposition of an exceptional sentence, in itself, provided a `substantial and compelling reason' to impose an exceptional sentence under the SRA. Schwabland admitted to six prior domestic violence offenses involving K.M., which would seem to support the trial court's finding of an ongoing pattern of abuse involving this victim. Nevertheless, we need address only the trial court's finding that Schwabland's `prior unscored misdemeanor criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.' Clerk's Papers at 38. See, e.g., State v. Van Buren, 123 Wn. App. 634, 640, 98 P.3d 1235 (2004) (addressing only trial court's determination that defendant's high offender score was a substantial and compelling reason justifying an exceptional sentence, although court also found that defendant's lack of remorse was a substantial and compelling reason justifying the sentence).
In State v. Alkire, 124 Wn. App. 169, 100 P.3d 837 (2004), the defendant was found guilty by a jury of one count of second degree possession of stolen property and one count of attempting to elude a pursuing police vehicle. The sentencing court ruled that the presumptive sentence of 22-29 months, to be served concurrently, was "clearly too lenient," and imposed an exceptional sentence of 29 months on each count to be served consecutively. Alkire, 124 Wn. App. at 172. This court rejected the defendant's argument that the sentence required the improper judicial fact-finding condemned in Apprendi and Blakely.
The Alkire court noted that Apprendi held, and Blakely relied upon, the maxim that `[o]ther than the fact of a prior conviction, 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.' Alkire, 124 Wn. App. at 175-76 (citing Blakely, 124 S. Ct. at 2536; Apprendi, 530 U.S. at 490). Thus, the sentencing court's determination that a standard range sentence would be clearly too lenient was `based solely on the jury's finding that Alkire committed two new crimes, and on the undisputed existence of his prior convictions.' Id. at 175. Because the exceptional sentence did not require the sentencing court to find facts not inherent in the prior convictions or the jury's verdict, the sentence did not violate Apprendi and Blakely. Id. at 176-78.
In Van Buren, the defendant entered an Alford plea to two counts of third degree rape of a child and one count of third degree rape. Van Buren, 123 Wn. App. at 640. Although the defendant later breached his plea agreement, the State did not alter its recommendation that the defendant be sentenced within the standard range. Nonetheless, the sentencing court imposed an exceptional sentence after finding that the defendant's high offender score supplied a `substantial and compelling reason' to impose the sentence. Van Buren, 123 Wn. App. at 640-41. The Van Buren court held that the decision of whether to impose a sentence above the standard range based solely on the defendant's criminal history is not a fact to be determined by a jury, but a judgment for the sentencing court; Blakely recognized that whether properly determined facts present a compelling ground for departure from the standard range remains a judgment for the sentencing judge. Van Buren, 123 Wn. App. at 645-46 (citing Blakely, 124 S. Ct. at 2538 n. 8; RCW 9.94A.535(2)(j) (2001)).
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) ('[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime').
The court also stated that the defendant's lack of remorse was an additional independent basis for which it could have imposed an exceptional sentence, but the appellate court only addressed the trial court's reliance on the defendant's high offender score. Van Buren, 123 Wn. App. at 640-41.
The same result is required here. Schwabland's misdemeanor convictions were not facts required to be proven to a jury. Further, the court's determination that Schwabland's unscored misdemeanor convictions resulted in a presumptive sentence that was `too lenient in light of the purposes of [the SRA]' is a judgment for the sentencing court after the relevant facts have been properly established either by the jury verdict, or by admission by the defendant, or are simply the fact of prior convictions. This is recognized by both Blakely, and RCW 9.94A.535(2)(j) (permitting exceptional sentence where `the defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010'). The trial court did not err by concluding that Schwabland's prior unscored misdemeanor convictions would result in a presumptive sentence that was too lenient in light of the purposes of the SRA.
II. Invalidity of Exceptional Sentence Under Pre-Blakely SRA Law
Schwabland also asserts that the sentence is based on factors that inhere in the standard range. A trial court may impose a sentence outside the standard range if it finds substantial and compelling reasons to do so. RCW 9.94A.535. `A reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense.' State v. Gore, 143 Wn.2d 288, 315-16, 21 P.3d 262 (2001) (emphasis added). `To reverse a sentence which is outside the standard range, the reviewing court must find: (a) the reasons supplied by the sentencing judge are not supported by the record or those reasons do not justify a sentence outside the standard range for that offense; or (b) the sentence imposed was clearly excessive or clearly too lenient.' State v. Ratliff, 46 Wn. App. 325, 331-32, 730 P.2d 716 (1986) (citing RCW 9.94A.210(4)). The record fully supports the basis that Schwabland's had a number of unscored misdemeanors. Schwabland argues that several of these eleven `unscored' misdemeanors were actually `scored'; that the four misdemeanor violations of no contact orders or protection orders were later used to support his two convictions for felony violations of no contact orders. Thus, he asserts, the court erred in finding that these misdemeanors were `unscored.'
Even assuming that Schwabland's two prior felony convictions for violations of court orders were based on his misdemeanors, rather than on his felony assault violation, this leaves seven unscored misdemeanors. However, the court did not rely on any specific number of `unscored' misdemeanors in finding the presumptive sentence was too lenient. Rather, the court first found that ten of the eleven misdemeanors involved domestic violence, and that Schwabland admitted that six of them involved the current victim. The State asserted at sentencing that the two predicate convictions that were used to charge Schwabland in the current case were his two prior felony convictions for violating domestic violence court orders, two felonies that were already scored. Additionally, it is not contested that none of these eleven misdemeanors were included in Schwabland's offender score in calculating the standard range sentence. Since there is no finding that the court relied on any specific number of `unscored' misdemeanors, the record clearly supports the trial court's reasons for the exceptional sentence.
RCW 9.94A.535(2)(j) specifically allows for the imposition of an exceptional sentence where a defendant's unscored misdemeanors result in a presumptive sentence that was `too lenient' in light of the purposes of the SRA. A defendant's history of misdemeanor convictions is also legally a `substantial and compelling' reason justifying a departure from the standard sentence range. Ratliff, 46 Wn. App. at 332.
While no specific number of unscored misdemeanors is required to justify an exceptional sentence, the presence of five prior unscored misdemeanors has been sufficient. State v. Atkinson, 113 Wn. App. 661, 669, 54 P.3d 702 (2002) (jury found defendant guilty of second degree assault; court imposed exceptional sentence based on five unscored misdemeanors that were unspecified in nature). Three unscored misdemeanor convictions have been found sufficient to justify an exceptional sentence when the three convictions were of a type related to the current offense. State v. Roberts, 55 Wn. App. 573, 579, 779 P.2d 732 (1989) (three negligent driving offenses prior to defendant's current conviction for vehicular homicide constituted `substantial and compelling' reasons to justify an exceptional sentence), abrogated recognized on other grounds by State v. Bolton, 68 Wn. App. 211, 842 P.2d 989 (1992). See also State v. Wilson, 96 Wn. App. 382, 389-91, 980 P.2d 244 (1999) (defendant's one prior unscored misdemeanor for failing to register as a sex offender was a legally sufficient reason to impose an exceptional sentence for defendant's current sex crimes of abduction of women).
In determining that an exceptional sentence was warranted, the court took into account factors other than those used to compute the standard range sentence for the offense Schwabland's offender score and the level of the charged crime. Gore, 143 Wn.2d at 315-16. Schwabland's misdemeanors were not used to calculate his offender score. Even assuming four of the misdemeanors were used to charge Schwabland of felony violations, the remaining seven were unscored. Thus, they were sufficient to find a `substantial and compelling' reason justifying imposition of an exceptional sentence in this case.
Affirmed.
APPELWICK and COX, JJ., concur.