Opinion
No. 36135-3-II.
June 3, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 03-1-00881-8, Barbara D. Johnson, J., entered March 21, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Penoyar, J.
Cravenn Sturgis appeals the trial court's reimposition of an exceptional sentence for first degree assault, with domestic violence as the aggravating factor. He argues that the trial court (1) violated his right to a jury trial under the Sixth Amendment by imposing an exceptional sentence in violation of Blakely, and (2) erred by entering findings of fact not supported by substantial evidence, to justify an exceptional sentence. We affirm.
U.S. Const. amend. VI.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS I. First Sentencing and First Appeal
On April 30, 2003, the State charged Cravenn Sturgis with first degree assault, unlawful imprisonment, and felony harassment. The Information described all three crimes as domestic violence offenses, "committed by one family or household member against another." Clerk'sPapers (CP) at 1.
Sturgis was charged for attacking his girlfriend "with a hammer and with his fists" in their home while she was eight months pregnant. Sturgis and the victim had a two-year-old daughter, who was at home at the time. Clerk's Papers at 95.
At trial, the court gave the following instructions to the jury:
Instruction No. 7:
To convict the defendant of the crime of assault in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of April, 2003, the defendant assaulted [the victim]
. . . .
(4) That the defendant is a family or household member with [the victim].
. . . .
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
Instruction No. 8:
For purposes of this case, "family or household members" means spouses or former spouses or persons who have a child in common, regardless of whether they have been married or lived together at any time or adult persons related by blood or marriage or adult persons who are presently residing together. . . .
Instruction No. 17:
To convict the defendant of the crime of unlawful imprisonment, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of April 2003, the defendant knowingly restrained [the victim]
. . . .
(4) That the defendant was a family or household member with [the victim].
. . . .
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
Instruction No. 20:
To convict the defendant of the crime of harassment, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of April, 2003, the defendant knowingly threatened:
(a) to cause bodily injury immediately or in the future to [the victim] and
(2) That the words or conduct of the defendant placed [the victim] in reasonable fear that the threat would be carried out
. . . .
(4) That the defendant was a family or household member with [the victim]. . . .
. . . .
If you find from the evidence that elements . . . have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
Supplemental CP at 223-24, 233, 236.
The jury found Sturgis guilty of all counts, determining the State had proven all elements of each crime beyond a reasonable doubt. The jury also returned a special verdict finding that Sturgis was guilty of felony harassment and that his "threat to cause bodily harm consist(ed) of a threat to kill the person threatened." CP at 3-7. The trial court imposed standard range sentences of eight months each for unlawful imprisonment and felony harassment, and an exceptional sentence of 180 months for first degree assault.
Sturgis appealed, arguing that his exceptional sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We held that the trial court's imposition of an exceptional sentence based "on its own findings of deliberate cruelty and [the victim's] pregnancy" was invalid under Blakely because the trial court, not a jury, made these findings. CP at 96. Reaffirming the felony assault conviction, we remanded to the trial court for resentencing.
In this first appeal, Sturgis also challenged a jury instruction. But he abandons this argument in the appeal before us now.
The State moved to empanel a jury to determine aggravating factors for Sturgis's exceptional sentence. The State also requested, and the resentencing court granted, a stay pending the outcome of State v. Pillatos, 159 Wn.2d 459 (2007).
In Pillatos, the Washington Supreme Court concluded that Blakley and the legislature's corresponding amendment to the Sentencing Reform Act of 1981, RCW 9.9A, were not "retrospective." Pillatos, 159 Wn.2d at 470-71.
II. Resentencing on Remand
At his resentencing on March 9, 2007, Sturgis argued that, because a jury did not find the factors justifying an exceptional sentence, Blakely prevented imposition of an exceptional sentence on remand. The State argued that the resentencing court could again impose an exceptional sentence, based on legitimate grounds, because at trial, the jury had found the exceptional-sentence aggravating factors of domestic violence and intimidation of the victim beyond a reasonable doubt.
Agreeing with the State, the resentencing court (1) noted that this was "an unusual situation . . . where actually the jury found the facts in terms of domestic violence," Report of Proceedings (RP) (Mar. 9, 2007) at 10; and (2) emphasized that the basis for the exceptional sentence was "limited to those matters that were actually found by the jury in their convictions of Assault in the First Degree Domestic Violence as well as the Unlawful Imprisonment and Felony Harassment, particularly with respect to the death threat conviction." RP (Mar. 9, 2007) at 12.
The superior court judge who resentenced Sturgis was not the same judge who had presided over his jury trial.
Based solely on the original jury's findings, the resentencing court entered the following written findings of fact and conclusions of law on resentencing:
I. Findings of Fact
1. The jury found the defendant guilty after jury trial of: Count I, Assault in the First Degree — Domestic Violence; Count II, Unlawful Imprisonment — Domestic Violence and Count III, Felony Harassment — Domestic Violence on 10-28-03
2. In finding the defendant guilty of count III, the charge of Felony Harassment, the jury found that the defendant made a threat to the victim to kill her.
3. In finding the defendant guilty of count III, the jury found that the Page 5 defendant threatened to kill the victim during the time that the blows were administered to the victim.
4. Special interrogatories were not submitted to the jury concerning aggravating circumstances which would support an exceptional sentence.
II. Conclusions of Law
1. The court has proper venue and jurisdiction to hear the above entitled matter.
2. The jury's verdicts of guilty in counts 1, 2, and 3 establish substantial and compelling reasons that justify an exceptional sentence above the standard range pursuant to RCW 9.94A.535.
3. The jury's verdict of guilty in count 1, Assault in the First Degree, reflected that the crime involved domestic violence as defined in RCW 10.99.020. The jury's verdict of guilty in count 3, felony harassment, reflects that the defendant's conduct during his commission Assault in the First Degree, specifically his threat to kill the victim, manifested intimidation of the victim. This is an aggravating circumstance under RCW 9.94A.535(2)(h)(iii).
4. The Court concludes that this basis is a substantial and compelling justification sufficient to impose an exceptional sentence and an exceptional sentence is appropriate given the factors listed above.
5. In light of the purposes of the Sentencing Reform Act, which seeks to ensure punishment that is proportionate to the seriousness of the offense and the protection of the public, the court hereby imposes an exceptional sentence of 180 months.
6. Further, this Court finds that this sentence is appropriate based upon the same conduct even if a higher Court finds that all three crimes merge for purposes of same criminal conduct.
CP at 156-58. Based on the aggravating factor of domestic violence, the resentencing court re-imposed an exceptional sentence for Strugis's conviction for first degree assault.
Sturgis again appeals his exceptional sentence.
ANALYSIS I. No Blakely Violation
Sturgis first argues that the resentencing court violated his right to a jury trial by imposing an exceptional sentence based on its own findings of fact, not those of the jury, in violation of Blakely. Br. of App. at 16. We review de novo this claim of manifest constitutional error. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004) (citing City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004). As the State correctly notes, the resentencing court properly based Sturgis's exceptional sentence on the original trial jury's findings.
In his Brief of Appellant, Sturgis discusses whether we may subject a Blakely violation to harmless error analysis. Br. of App. at 16-22. Our Supreme Court has answered that question in State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007). Incorporating the holding from Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 2551, 165 L. Ed. 2d. 466 (2006), the Court held that Blakely violations could be subject to harmless error analysis. 160 Wn.2d at 661-62.
Here, however, we need not undertake a harmless error analysis because the resentencing court confined the reasons for the imposition of an exceptional sentence to the original trial jury's findings and, therefore, no Blakely violation occurred.
A. Blakely
Defendants' Sixth Amendment right to a jury trial includes the right to a jury finding of guilt beyond a reasonable doubt for every element of a crime with which they are charged. Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (citing United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)). In Blakely, the United States Supreme Court held that any fact that increases a sentence beyond the standard range must be based " solely on the basis the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303 (emphasis in original). Here, as we explain in the next section of our analysis, the resentencing court based its reimposition of an exceptional sentence solely on "facts reflected in the jury verdict." 542 U.S. 303.
B. Jury Verdict as Basis for Exceptional Sentence
The Sentencing Reform Act allows a trial court to impose an exceptional sentence outside the standard range if "it finds, considering the purpose of [the sentencing guidelines], that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535 (2008). A trial court may base an exceptional sentence on certain aggravating factors, including:
The cited sections of the sentencing guidelines remain unchanged from those in effect at the time of Sturgis's arrest, April 30, 2003.
(h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:
(i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;
(ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years; or
(iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.
Read in the context of the court's jury instructions, the jury's special verdict form here reflected the aggravating factor of domestic violence. The jury found Sturgis guilty beyond areasonable doubt of (1) Count 1, first degree assault; (2) Count 2, unlawful imprisonment; and (3) Count Three, harassment, with a special verdict finding that Sturgis's "threat to cause bodily harm consist(ed) of a threat to kill the person threatened or another person." CP at 1-7. In order to return a guilty verdict, the instructions for all three counts required the jury to find, beyond a reasonable doubt, that "the defendant [was] a family or household member with [the victim]," to establish the crime as a domestic violence offense as described in the charging Information. Supp. CP at 223. The jury's special verdict found specifically that Sturgis's threat to "cause bodily harm consist(ed) of a threat to kill the person threatened or another;" thus, the jury's findings fulfilled the SRA's requirement that a domestic violence offense be accompanied with "intimidation of the victim." RCW 9.94A.535(2)(h)(iii).
We find precedent for this approach in the following analogous firearm-enhancement opinion by Division One of our court. In State v. Pharr, 131 Wn. App. 119, 126 P.3d 66 (2006), review denied, 160 Wn.2d 1022 (2007), the jury instructions specified that the jury had to find the defendant was armed with a firearm, in order to return a special verdict for an enhanced sentence. Id. at 122. But the special verdict form did not use the word "firearm"; instead the verdict form asked if the defendant was "armed with a deadly weapon." Id. at 124. The jury found that Pharr was armed with a deadly weapon, and the trial court imposed an exceptional sentence based on the firearm enhancement. Pharr, 131 Wn. App. at 122.
On appeal, Pharr argued that the enhancement violated Blakely because the jury's special verdict form did not specify that the deadly weapon was a "firearm." Id. at 124. Division One (1) rejected Pharr's argument; (2) determined the jury's special verdict finding that Pharr had wielded a deadly weapon "reflected" a firearm finding; (3) held that the "jury's special verdict, read in light of the instructions, constitute[d] a specific finding that the State met its burden to show beyond a reasonable doubt that [the defendant] was armed with a firearm"; and (4) upheld the trial court's imposition of an exceptional sentence. Id. at 125.
Webster's New International Dictionary defines "intimidate" as: "to make timid or fearful: inspire or affect with fear . . . to compel to action or inaction." Webster's New International Dictionary 1184 (3d ed. 1966). The jury's finding that Sturgis's crimes "consist(ed) of a threat to kill the person threatened or another" clearly falls within the definition of "intimidation."
The resentencing court carefully confined its exceptional sentence to the trial jury's findings; the court thus ensured that the reimposed exceptional sentence was "limited to those matters that were actually found by the jury in their convictions . . . particularly with respect to the death threat conviction." RP (Mar. 9, 2008) at 12. Contrary to Strugis's assertion, the resentencing court imposed his exceptional sentence on remand based on the jury's finding athreat to kill beyond a reasonable doubt, not on its own findings of fact. Accordingly, we hold that the resentencing court did not violate Sturgis's Sixth Amendment right to a unanimous jury determination on aggravating factors.
In contrast, see our Supreme Court's recent decision in In re Pers. Restraint of Hall, 2008 LEXIS 265 (Apr. 3, 2008). The Court held that a trial court's imposition of an exceptional sentence based on its own findings of "deliberate cruelty and multiple injuries" was not harmless error because "it was procedurally impossible for the jury to have made a beyond a reasonable doubt finding on the aggravating factors." The Court remanded the case for resentencing in accordance with Blakely. Hall, at 2-3.
But here, the resentencing court used the findings of the original trial jury, not the court, to reimpose Sturgis's exceptional sentence. Blakely requires that any fact increasing a sentence beyond the standard range be based " solely on . . . the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303 (emphasis in original). Because the original trial jury found the aggravating factors in Sturgis's case beyond a reasonable doubt and reflected this finding in its special verdict, the exceptional sentence on remand fulfilled Blakely requirements.
II. Sufficiency of Findings of Fact
Sturgis next argues that the resentencing court erred by imposing an exceptional sentence based on findings of fact not supported by substantial evidence. Thus, we review Sturgis's exceptional sentence to determine whether the evidence in the record supports the resentencing court's stated reasons for reimposing the exceptional sentence. State v. Law, 154 Wn.2d 85, 93-94, 110 P.3d 717 (2005). Applying the applicable clearly erroneous standard, Sturgis's argument fails.
The limited record before us supports the resentencing court's findings on remand. Aswe previously noted, the resentencing court based its exceptional sentence entirely on the original trial jury's determinations, which beyond a reasonable doubt justified the resentencing court's reimposition of an exceptional sentence. We hold, therefore, that Sturgis fails to show the trial court's imposition of an exceptional sentence on remand was clearly erroneous.
As the State points out, Sturgis failed to designate as part of the record on appeal the full original trial transcript, or the jury instructions, relevant to full review of his argument. Br. of Resp. at 3. See State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986) (holding that the party seeking review of an issue must ensure the record contains all relevant evidence for the reviewing court).
Moreover, even if we had these additional parts of the trial record, we could not disturb a jury's findings on credibility and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
III. Additional Arguments
Sturgis also argues that the resentencing court erred by imposing an exceptional sentence without giving the required notice of "aggravating circumstances upon which the requested sentence will be based." RCW 9.94A.537(1); Br. of App. at 12-13. But this notice requirement was effective on April 15, 2005, about one year after the trial court first sentenced Sturgis in May 2004. Because this amendment does not apply retroactively, we do not consider this argument. RCW 9.94A.537(1); Pillatos, 159 Wn.2d at 471.
Moreover, as the State points out, the Information charging Sturgis complied with all notice requirements in effect at the time. Br. of Resp. at 8. These requirements included that the crimes charged were domestic violence offenses under RCW 10.99.020 and that the first degree assault charge was a "most serious offense," which would subject Sturgis to the Persistent Offender Accountability Act. RCW 9.94A.030(29), RCW 9.94A.505(2)(a)(v), RCW 9A.94A.570.
Sturgis submitted a Statement of Additional Grounds (SAG) on appeal. Although a defendant is not required to cite to the record or authority in his SAG, he must still "inform the court of the nature and occurrence of [the] alleged errors." We are not required to search the record to find support for the defendant's claims. RAP 10.10(c). See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). Furthermore, on direct appeal, we cannot address matters outside the trial record. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
RAP 10.10.
Sturgis fails to inform us of the nature or occurrence of his assigned errors. On the contrary, Sturgis's SAG (1) claims rights under foreign law; (2) includes lists of stocks and shares of companies; (3) instructs the reader to distribute his many funds into various accounts; and (4) asks us to contact various public figures to inform them of his imprisonment. See e.g. SAG at 2-4, 5, 7, 13, 20. Absent further information, we cannot consider these arguments that Sturgis presents in his SAG.
Affirmed.
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, CJ., and PENOYAR, J., concur.