Opinion
No. 22882-7-III.
May 29, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-00225-8, Tari S. Eitzen, J., entered March 18, 2004.
Dennis Sumner pleaded guilty to residential burglary, first degree theft, and possession of heroin. He stipulated to an exceptional sentence of 120 months based upon the multiple offense policy. Arguing his stipulation was not valid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), he appeals. We affirm.
On March 18, 2004, Mr. Sumner pleaded guilty to residential burglary, first degree theft, and possession of heroin. His offender score was listed as a 9+ for each conviction (18 for the residential burglary and 14 for the other two convictions). The standard ranges were 63 to 84 months for the residential burglary, and 43 to 57 months for both the theft and possession convictions. The court imposed 120 months for the residential burglary conviction and 57 months for each of the other convictions, to be served concurrently.
In its findings of fact supporting the exceptional sentence, the court stated that Mr. Sumner stipulated to the imposition of the exceptional sentence. Mr. Sumner acknowledged that the theft and possession charge would go unpunished absent an exceptional sentence and the presumptive sentence was thus too lenient. The court concluded the standard range was clearly too lenient and under the multiple offense policy an exceptional sentence was justified. Mr. Sumner now contests the validity of his stipulation, and the imposition of the exceptional sentence. He has filed an additional ground for review which also contests the imposition of the exceptional sentence.
Criminal defendants have a constitutional right to a jury trial. State v. Ermels, 156 Wn.2d 528, 536, 131 P.3d 299 (2006). "In 2000, the United States Supreme Court held that `other 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.'" Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The United States Supreme Court defined "`statutory maximum'" as the maximum sentence a judge may impose "`without any additional findings.'" Ermels, 156 Wn.2d at 537 (quoting Blakely, 542 U.S. at 303-04). This did not render Washington's exceptional sentence provisions facially unconstitutional, rather without factual findings by a jury, the defendant's exceptional sentence would need to be reversed and remanded for resentencing within the standard range. Ermels, 156 Wn.2d at 537.
At issue is whether Mr. Sumner's stipulation to the facts supporting the exceptional basis runs afoul of Blakely. Two recent Supreme Court cases are instructive. The first is State v. Ermels, 156 Wn.2d 528. Mr. Ermels pleaded guilty to second degree manslaughter; he had stomped on the head of an unconscious man who later died. Id. at 531. As part of his plea, he admitted that his victim was vulnerable and this was a legal basis for an exceptional sentence. Id. Although he waived his right to appeal, after the decision in Blakely he filed an appeal that he had not knowingly, intelligently, and voluntarily waived his right to appeal or his right to have a jury find the facts necessary to support an exceptional sentence. Id. The court held the exceptional sentence did not violate Blakely because Mr. Ermels stipulated to the facts and the legal basis supporting it. Id. at 540. The court further held that Mr. Ermels could not contest his sentence without contesting his entire plea. Id. Because he did not challenge his plea, he could not challenge the exceptional sentence. Id. at 542.
The second case is State v. Suleiman, 158 Wn.2d 280, 143 P.3d 795 (2006). Mr. Suleiman pleaded guilty to three counts of vehicular assault. Id. at 283. In his guilty plea he stipulated to facts contained in the certification of determination of probable cause, but did not stipulate that the facts were a legal basis for an exceptional sentence. Id. The court imposed an exceptional sentence based upon victim vulnerability. Id. at 286-87. Mr. Suleiman appealed claiming his exceptional sentence was improper under Blakely. Id. at 287. Specifically, he asserted his exceptional sentence was based upon facts to which he did not stipulate. Id. at 289.
The court imposed an exceptional sentence finding the victim was particularly vulnerable, and there must be a factual bases to support such a finding. Suleiman, 158 Wn.2d at 292. In order for the plea to comply with Blakely, Mr. Suleiman must have stipulated to the underlying facts as well as the enumerated factual bases for particular vulnerability (that he knew or should have known the victim was particularly vulnerable and this was a substantial factor in the crime). Id. He also must have stipulated that the record supported a determination of particular vulnerability. Id. The court held his stipulation did not meet this requirement. Id. at 292-93.
The court further stated that even if Mr. Suleiman's stipulation was valid, he specifically stated he was not stipulating that these facts were a legal basis for an exceptional sentence. Id. The court found the exceptional sentence relied on facts outside the stipulation. There was a Blakely violation. Id. at 294.
This case is similar to Ermels not Suleiman. Like Mr. Ermels, Mr. Sumner stipulated to his extensive criminal history and that it provided a legal basis for an exceptional sentence. Mr. Sumner is not contesting the validity of his plea. Under Ermels, Mr. Sumner's plea and stipulation is valid. The exceptional sentence was proper.
He also argues that because he did not waive his right to appeal, he can challenge his exceptional sentence. Certainly he can and did challenge the imposition of the exceptional sentence. However, his challenge is not successful because he stipulated to the facts and the legal basis for the exceptional sentence.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J., Kulik, J., Concur.