Opinion
No. 35405-5-II.
January 8, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00902-9, Robert L. Harris, J., entered August 24, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Jerry Wayne Stallings appeals from a sentence, imposed after his guilty plea, for two counts of first degree child rape and one count of sexual exploitation of a minor. For the two counts of first degree child rape, the trial court sentenced Stallings under RCW 9.94A.712 to life imprisonment and then set an exceptional minimum sentence of 400 months. For the one count of sexual exploitation of a minor, the trial court sentenced Stallings under RCW 9.94A.589 to 129 months of confinement. We affirm Stallings's sentence under RCW 9.94A.712; but because Stallings's sentence under RCW 9.94A.589 exceeded the statutory maximum, we vacate this sentence and remand for resentencing.
FACTS
By amended information, the State charged Jerry Stallings with: (1) three counts of first degree child rape; (2) one count of sexual exploitation of a minor; and (3) one count of possession of depictions of a minor engaged in sexually explicit conduct. With regard to the three counts of first degree child rape, the State alleged that "the defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to: extreme youth." CP at 4-5.
Before trial, Stallings pleaded guilty to two counts of first degree child rape and one count of sexual exploitation of a minor. The State and Stallings agreed to a 300 month minimum sentence, within the standard range of 240-318 months, for the two counts of first degree child rape. But at the plea hearing, both the State and defense counsel appeared to believe that Stallings had pleaded guilty to an exceptional minimum sentence.
Nevertheless, the trial court advised Stallings:
Now, you further understand I'm not bound by the recommendations as to sentencing. I may impose a sentence, unless I find substantial and compelling reasons not to do so[,] within the standard range; and I may impose an exceptional sentence if I find mitigating. I might impose an exceptional if I find incidents that would lead to an exceptional sentence.
RP (July 6, 2006) at 17. After a colloquy to ensure that Stallings was making his plea knowingly, voluntarily, and intelligently, the trial court accepted the plea.
The trial court also noted, "Maximum penalty is life. The Court can sentence up to that. All right." RP (July 6, 2006) at 17.
The trial court then noted that it had received from the State the following finding of fact and conclusion of law for an exceptional sentence:
I. FINDINGS OF FACT
The defendant and the state agree that it is in the interest of justice to sentence the defendant to an exceptional sentence above the standard range, and further, the defendant knew [or should] have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to her extreme youth, as to counts 1, 2, and 4.
II. CONCLUSIONS OF LAW
The court finds that given that both parties are in agreement as to a recommended sentence above the standard range, and further that it is in the interest of justice to order an exceptional sentence above the standard range. The defendant waives his right to have a jury determine any issues related to the imposition of an exceptional sentence upward, specifically as it relates to the issue of: the defendant knowing or that he should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to her extreme youth. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
CP at 32. After reading the finding of fact, the trial court asked Stallings, "And you have signed to same . . .?" RP (July 6, 2006) at 23. Stallings replied, "Yes, sir." RP (July 6, 2006) at 23.
Then, before sentencing Stallings, the trial court questioned whether Stallings's standard range sentence for one count of sexual exploitation of a minor was indeed 129-171 months. The trial court noted, "The plea form indicated 60 months." RP (Aug. 24, 2006) at 25. In response, the State acknowledged that it had miscalculated the standard range sentence. "What happened there, Your Honor, is that it caps out at 120 months." RP (Aug. 24, 2006) at 25.
The trial court notified Stallings of the mutual mistake in calculating his standard range sentence for one count of sexual exploitation of a minor. Defense counsel then advised Stallings, "Basically what [the trial court] is saying are you advised of the consequences of your plea? I mistakenly put 60 months as opposed to 20 years. The maximums were misstated in the police statement. The Judge has corrected those and has informed you of the consequences." RP (Aug. 24, 2006) at 26. Stallings replied, "Okay." RP (Aug. 24, 2006) at 26. Defense counsel informed Stallings, "[Your] remedies are to go back and say I was misinformed, I want them taken away; or with that in mind knowing that it was correct, I want to go forward." RP (Aug. 24, 2006) at 26. Stallings replied, "Okay, I want to go forward." RP (Aug. 24, 2006) at 27.
Thereafter, for each of the two counts of first degree child rape, the trial court sentenced Stallings under RCW 9.94A.712 to an exceptional minimum sentence of 400 months. For the one count of sexual exploitation of a minor, the trial court sentenced Stallings under RCW 9.94A.589 to 129 months. The trial court indicated that Stallings would serve these sentences consecutively.
ANALYSIS I. Exceptional Minimum Sentence Under RCW 9.94A.712
Stallings argues that he did not knowingly, intelligently, and voluntarily waive his Blakely right to have a jury find the factual basis for an exceptional minimum sentence. And he asks us to apply the Hughes remedy and remand for imposition of a sentence within the standard range. But we decline to accede to Stallings's position because Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005).
RCW 9.94A.712 establishes the sentencing regime for nonpersistent offenders convicted of specified sex crimes, including first degree child rape. See State v. Clarke, 156 Wn.2d 880, 887, 134 P.3d 188 (2006), cert. denied, 128 S. Ct. 365 (2007). And Clarke definitively settles all of Stallings's claims regarding his sentence under RCW 9.94A.712. Under this statute, the sentencing court imposes both a maximum term and a minimum term. Clarke, 156 Wn.2d at 887. The maximum term "consist[s] of the statutory maximum sentence for the offense," which for the class A felony of first degree child rape is a term of life imprisonment. RCW 9.94A.712(3)(b); RCW 9A.44.073; RCW 9A.20.021; see Clarke, 156 Wn.2d at 888. "Therefore, the statutory maximum identified in RCW 9.94A.712(3) differs from other statutory maximums because it is mandatory, whereas most statutory maximums merely establish the outside limit of available sentences." Clarke, 156 Wn.2d at 888 (citing RCW 9A.20.021).
RCW 9.94A.712(1) provides in relevant part:
(1) An offender who is not a persistent offender shall be sentenced under this section if the offender:
(a) Is convicted of:
(i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;
. . .
committed on or after September 1, 2001.
(Emphasis added.)
Under RCW 9.94A.712(3)(c)(i), the sentencing court also must impose a minimum sentence, which may be "either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence." RCW 9.94A.535 allows a sentencing court to impose a sentence outside the standard range when "there are substantial and compelling reasons justifying an exceptional sentence."
Because Stallings is serving an indeterminate life sentence under RCW 9.94A.712, the relevant "statutory maximum" that the sentencing court may impose without any additional findings of fact is life imprisonment. Clarke, 156 Wn.2d at 890. The standard range for minimum sentences under RCW 9.94A.712 provides a guideline for when the Indeterminate Sentencing Review Board should consider release, but the standard range does not in any way establish Stallings's maximum sentence. Clarke, 156 Wn.2d at 891. Because Stallings's sentence is indeterminate, his exceptional minimum sentence is irrelevant under a Blakely analysis because the relevant "statutory maximum" for Blakely purposes is life imprisonment. Clarke, 156 Wn.2d at 891.
Stallings is serving a life sentence with the possibility, but no guarantee, of earlier release. See Clarke, 156 Wn.2d at 888-90. Therefore, Stallings's sentence under RCW 9.94A.712 is an indeterminate life sentence. See Clarke, 156 Wn.2d at 890.
Furthermore, the sentencing court here found two substantial and compelling reasons for imposing an exceptional minimum sentence: (1) "[t]he defendant and the state agree that it is in the interest of justice to sentence the defendant to an exceptional sentence above the standard range"; and (2) "the defendant knew [or should] have known that the victim of the current offense was particularly vulnerable or incapable of resistance." CP at 32; see RCW 9.94A.535(2)(a) and (3)(b).
Accordingly, we reject Stallings's constitutional challenge to his exceptional minimum sentence because our Supreme Court has held that Blakely does not apply to exceptional minimum sentences imposed under RCW 9.94A.712 that do not exceed the maximum sentence imposed. See Clarke, 156 Wn.2d at 894.
II. Erroneous Sentence
Stallings claims that the trial court erred in sentencing him to 129 months for the one count of sexual exploitation of a minor. The State concedes the error. We accept the State's concession and agree that the trial court erred.
With certain exceptions that are not relevant here, a sentencing court may not impose a sentence providing for a term of confinement that exceeds the maximum sentence for the crime as provided in chapter 9A.20 RCW. RCW 9.94A.505; In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980) (the sentencing court possesses only the power to impose sentences the law allows). Here, the maximum sentence for sexual exploitation of a minor, a class B felony, is incarceration for 120 months, or a fine of $20,000, or both. RCW 9.68A.040(2); RCW 9A.20.021(1)(b).
The State claims that this error "appears to be a clerical error and as such would not require resentencing but merely modification of the judgment form." Br. of Resp't at 5-6. For this remedy, the State relies on State v. Snapp, 119 Wn. App. 614, 626, 82 P.3d 252 (2004), review denied, 152 Wn.2d 1028 (2004), in which this court reviewed a trial court's correction to a sentence under CrR 7.8(a). Snapp, 119 Wn. App. at 626-27. But here, neither party moved the sentencing court to correct Stallings's sentence under CrR 7.8(a). Moreover, the State does not explain why the error in this case is "clerical," as opposed to "judicial." See Snapp, 119 Wn. App. at 626-27. Thus, the correct remedy is to resentence Stallings.
Because the sentencing court imposed a sentence for which there is no authority in law, we vacate the sentence and remand so that the sentencing court can resentence Stallings.
III. Statement of Additional Grounds A. Miscalculation of Offender Score
See RAP 10.10.
Stallings claims that the trial court erred in calculating his offender score. Specifically, he argues, "Six points that were used in calculating my offender score had [washed out]. From 12/29/93 to 03/24/99 I had no criminal conduct." SAG at 1. But the trial court did not err, as it never included these prior convictions in his criminal history.
B. Miscalculation of Offender Score
Stallings claims that the trial court erred in calculating his offender score. He argues that the trial court erred in finding that his five prior convictions for second degree theft were not the same criminal conduct for purposes of calculating his offender score. He also argues that the trial court erred in finding that his prior convictions for second degree theft and possession of a controlled substance were not the same criminal conduct for purposes of calculating his offender score.
Under RCW 9.94A.589(1)(a), same criminal conduct is defined as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." If any one of these three elements of same criminal conduct is missing, a trial court must count multiple offenses separately when calculating a defendant's offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). Finally, we will not disturb a trial court's decision of whether two or more crimes are the same criminal conduct unless the trial court abused its discretion or misapplied the law. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990).
Intent in this context means the defendant's objective criminal purpose in committing the crime. In re Pers. Restraint of Holmes, 69 Wn. App. 282, 290, 848 P.2d 754 (1993).
But we do not consider matters outside the record. RAP 9.2(b); see also State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995). If Stallings wishes us to consider matters outside the record, a personal restraint petition is the appropriate vehicle for bringing them before the court. McFarland, 127 Wn.2d at 338. Thus, Stallings must raise this defect in a personal restraint petition, if at all.
C. Prosecutorial Misconduct
Stallings claims that the prosecutor committed misconduct by manipulating the dates of the crimes. In order to establish prosecutorial misconduct, Stallings must show that the prosecutor's conduct was improper and prejudiced his right to a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). But Stallings has failed to show that the prosecutor's conduct was improper, let alone flagrant and ill intentioned. And Stallings has not shown how he was prejudiced.
D. Validity of Plea Agreement
Stallings claims that the State breached the plea agreement. Among other things, he notes, "I'm thinking the agreed stipulation is the 25 years." SAG at 2. Stallings also argues, "No where [sic] is it mentioned that I have the right to a jury to decide on a[n] exceptional sentence." SAG at 2. But his argument is without merit, as we have previously decided this claim in our opinion.
E. Ineffective Assistance of Counsel
For various reasons, Stallings claims that he was denied effective assistance of counsel. To begin with, we do not consider matters outside the record on appeal. RAP 9.2(b). If Stallings wishes us to consider matters outside the record, a personal restraint petition is the appropriate vehicle for bringing them before the court. McFarland, 127 Wn.2d at 338.
Nevertheless, both the federal and state constitutions guarantee effective assistance of counsel. See U.S. Const. amend VI; Wash. Const. art. I, § 22. But to prove ineffective assistance of counsel, Stallings must show: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Here, the record before us does not show either that his counsel's performance was deficient or that the allegedly deficient performance prejudiced him. We hold Stallings's claim to be without merit.
F. Manifest Injustice
Stallings claims that the cumulative error and ineffective assistance of counsel in this case proved to be "a manifest injustice." SAG at 4-5. Thus, he argues that he should be able to withdraw his plea to correct this "manifest injustice." SAG at 4-5. But a defendant may waive the right to challenge the validity of the plea if informed of the miscalculation and given the opportunity to withdraw the plea before sentencing. See State v. Mendoza, 157 Wn.2d 582, 584, 141 P.3d 49 (2006). And because of the above facts and analysis, we hold his argument to be without merit.
We affirm Stallings's sentence for two counts of first degree child rape; we vacate the sentence for sexual exploitation of a minor and remand for resentencing.
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.
HUNT, J. QUINN-BRINTNALL, J., concur.