Opinion
No. 31603-0-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County, Docket No: 03-1-00451-5, Judgment or order under review, Date filed: 03/22/2004, Judge signing: Hon. David R. Draper.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Dennis Dee Thomas appeals his exceptional sentence. He argues that his sentence must be vacated under Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because the court imposed an exceptional sentence based on a judicial finding of fact neither charged and found by a jury beyond a reasonable doubt nor admitted by him. The State concedes. Additionally, Thomas argues that the prosecutor breached their plea agreement. We vacate Thomas' exceptional sentence and remand for resentencing.
FACTS
In January 2004, Dennis Dee Thomas pleaded guilty to one count of second degree assault of a child under RCW 9A.36.130(1)(a) or (b)(i). In Thomas' plea statement, he admitted the following:
Under RCW 9A.36.130(1)(a), a person commits second degree assault of a child if he or she is over the age of 18 and intentionally assaults and thereby recklessly inflicts substantially bodily harm on a child under the age of 13. Under RCW 9A.36.130(1)(b)(i), a person commits second degree assault of a child if he or she is over the age of 18, and he or she intentionally assaults the child and has previously engaged in a pattern or practice of assaulting the child, resulting in bodily harm that is greater than transient pain or minor temporary marks.
On or about [and] between October 1, 2002 [and] May 7, 2003, while in Lewis Co., WA, I assaulted a child under the age of 13 [and] recklessly inflicted substantial bodily harm (Deep Bruises).
Clerk's Papers (CP) at 38. Thomas did not admit to any statements in the police reports or the statement of probable cause.
Pursuant to the plea agreement, the State agreed to recommend a 47-month incarceration, the middle of the standard range, with credit for time served from May 29, 2003. The State also agreed to recommend a protection order `for [the] statutory maximum.' CP at 35. In exchange, Thomas gave up the right to interview any of the witnesses in the case.
The standard range for Thomas's crime is 41-54 months.
On January 15, 2004, Thomas appeared for a sentencing hearing. The court informed Thomas that it was contemplating imposing an exceptional sentence upward, and it granted Thomas a continuance to prepare for argument on this issue. In addition, the court requested that the State submit additional information as to the total number of possible assaults against the victim. RP at 5. The State filed a response entitled, `Providing Supplemental Information on Separate Incidents of Assault,' detailing numerous other assaults committed by Thomas against the victim. CP at 31-32.
A second sentencing hearing was held on March 5, 2004. At the hearing, Thomas disputed the allegations and facts outlined in the State's additional filing, the statements submitted on behalf of the victim by her family, and the declaration of probable cause. Additionally, Thomas requested that the court hold an evidentiary hearing if it intended to consider facts beyond those admitted in his plea statement. The court stated that it would consider only the incidence of assault pleaded by Thomas. It then asked the prosecutor if she had any thoughts on `[its] proposal.' Report of Proceedings (RP) (Mar. 5, 2004) at 17. The prosecutor responded that she did not, but stated, `And for the record, I'm sure your Honor understands that at this point the [S]tate has made an offer and that's why we are not providing the court with any argument.' RP (Mar. 5, 2004) at 17.
The court then proceeded with sentencing and asked defense counsel if he was `denying that [Thomas] had the sole care of [the] children while the mother was out of the home?' RP (Mar. 5, 2004) at 15. Defense counsel responded, `No.' RP (Mar. 5, 2004) at 15.
Thomas requested that the court follow the State's recommendation. The prosecutor then stated that she `would . . . outline the [S]tate's offer' recommending 47 months' incarceration and a lifetime protection order. RP (Mar. 5, 2004) at 19-20. The prosecutor did not orally recommend that Thomas receive credit for time served nor did she make any argument regarding the State's offer.
On appeal, Thomas argues that the prosecutor breached the plea agreement because she recommended a lifetime protection order rather than a protection order for the statutory maximum. However, after the prosecutor recommended a lifetime protection order during sentencing, Thomas' counsel responded in Thomas' presence, `That was my understanding of the agreement, [y]our Honor.' RP (Mar. 5, 2004) at 21. Thus, there was no breach of the plea agreement.
Following the hearing, the sentencing court entered the following findings of fact and conclusions of law: Findings of Fact:
1.1 On January 15, 2004[,] the defendant plead guilty to one count of Assault of a Child in the Second Degree on an amended information;
1.2 Pursuant to a plea agreement the [S]tate and defendant recommended 47 months incarceration;
1.3 Standard range for the offense is 41-54 months incarceration, 18-36 months of Community Custody[;]
1.4 The victim's birth date is 1-05-01;
. . . .
1.7 The defendant, the victim's mother's boyfriend, was the primary care giver of the victim while the mother worked;
1.8 The defendant used a hard plastic toilet training ring to strike the child, causing substantial bodily harm to her lower abdomen;
1.9 Due to her young age, the victim was extremely vulnerable and is more likely to be put in a state of terror than an older child;
1.10 The victim may endure serious emotional long-term consequences due to the assault;
Conclusions of Law:
. . . .
2.2 The defendant knew that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth;
2.3 The defendant used his position of trust over the victim who was between 1 — and 2 — years of age — to perpetuate the offense, and to maintain the secrecy thereof;
2.4 The defendant abused the trust of the victim's mother his girlfriend;
2.5 The victim's consequential emotional trauma and distrust of others represents possible exceptionally serious life-long consequences.
2.6 The mental state of the defendant, as shown by this offense and his criminal history, indicates that the defendant is a greater than usual threat to others.
2.7 Considering the purpose of the Sentencing Reform [A]ct, as provided in RCW 9.94A.010, there are substantial and compelling reasons justifying an exceptional sentence. (RCW 9.94A.535)[.]
2.8 The following factors alone or in any combination would support the Court's decision to depart from the presumptive sentencing range: breach of trust, and exceptionally serious consequences.
2.9 The mental state of the defendant factor, standing alone, would be insufficient to support an exceptional sentence.
2.10 The court did not consider any contested fact in reaching the ruling.
CP 14-16 (emphasis added).
Additionally, the court granted Thomas credit for time served since July 21, 2003. Thomas appeals his sentence.
ANALYSIS
Thomas initially challenged the sentencing court's findings of fact 1.4 and 1.7-1.10 and conclusions of law 2.2-2.8, and 2.10 and argued that he was entitled to resentencing because the sentencing court violated the appearance of fairness doctrine and his right to remain silent pending trial. In addition, he argued that the State breached the plea agreement and that his exceptional sentence was not justified. Through supplemental briefing, Thomas now argues, and the State concedes, that his exceptional sentence is unconstitutional under Blakely, 124 S. Ct. 2531. We accept the State's concession and remand for resentencing. Additionally, we hold that the prosecutor did not breach the plea agreement.
I. Breach of the Plea Agreement
Thomas contends that the prosecutor breached their plea agreement because she stated that she was `outlin[ing]' the State's offer rather than making a recommendation and because she did not orally recommend that Thomas receive credit for time served since May 29, 2003. Br. of Appellant at 21. Consequently, Thomas argues that we must remand his sentence and permit him to choose whether to withdraw his guilty plea or to specifically enforce the State's agreement. This argument is without merit.
A plea agreement obligates the State to recommend the sentence contained in the plea agreement. State v. Van Buren, 101 Wn. App. 206, 213, 2 P.3d 991, review denied, 142 Wn.2d 1015 (2000). The State need not enthusiastically offer its recommendation; but it must not undercut the plea agreement, either explicitly or implicitly, through conduct indicating intent to circumvent the agreement. Van Buren, 101 Wn. App. at 213. The test is whether the prosecutor contradicts, by word or conduct, the State's recommendation for a standard range sentence. Van Buren, 101 Wn. App. at 213. In making this determination, we review the entire sentencing record. Van Buren, 101 Wn. App. at 213. When the prosecutor breaches a plea agreement, the appropriate remedy is to remand for the defendant to choose whether to withdraw the guilty plea or to specifically enforce the State's agreement. Van Buren, 101 Wn. App. at 217.
Here, although the prosecutor stated that she was `outlin[ing]' the State's agreement rather than explicitly stating that she was making a recommendation, she clearly followed the plea agreement by reading the agreed recommendation of a standard range sentence to the sentencing court. At no time did the prosecutor evince an intent to circumvent or contradict the plea agreement. Moreover, it is of no consequence that the prosecutor did not orally recommend that Thomas receive credit for time served. She acknowledged and signed the recommendation contained in Thomas' statement on plea of guilty, which clearly stated that the State was recommending credit for time served since May 29, 2003; thus, this recommendation was before the sentencing court.
II. Blakely
Thomas first argues that Washington's exceptional sentence provisions are unconstitutional under Blakely because they permit a judge to impose a sentence `harsher than the sentence authorized by a jury's verdict.' Supp. Br. of Appellant at 2. We have previously rejected this contention in State v. Van Buren, 123 Wn. App. 634, 637-48, 98 P.3d 1235 (2004) (declining to hold that Blakely expressly prohibits judges from imposing a sentence above the standard sentencing range when a non-disputed fact justifies an exceptional sentence).
Thomas next contends that his sentence must be vacated under Blakely because the court imposed an exceptional sentence based on a judicial finding of fact neither charged and found by a jury beyond a reasonable doubt nor admitted by him. We agree.
In Blakely, the United States Supreme Court addressed former RCW 9.94A.390 (2000), recodified as RCW 9.94A.535, which provides: `The court may impose a sentence outside the standard sentence range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence.' The Court applied the rule from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), 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, 124 S. Ct. at 2536. And it explained that the `statutory maximum' 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. Thus, the Court held that a defendant has a constitutional right to have a jury determine whether the facts supporting an exceptional sentence have been proven beyond a reasonable doubt. Blakely, 124 S. Ct. at 2533. The Court found that Blakely's enhanced sentence violated his Sixth Amendment right to trial by jury because the facts supporting the sentence were neither admitted by Blakely nor found by a jury beyond a reasonable doubt. Blakely, 124 S. Ct. at 2533.
Here, as in Blakely, the trial court not a jury found the facts supporting an exceptional sentence. The court determined that: the victim was between 1 — and 2 — years old at the time of the crime and, due to her young age, she was `extremely vulnerable' and `more likely to be put in a state of terror'; Thomas was the victims' mother's boyfriend, was in a `position of trust' over the victim, and `abused the trust' of the mother; the victim has suffered `emotional trauma,' has a `distrust of others,' and may have `serious emotional long-term consequences' as a result of the assault; and Thomas' `mental state,' as shown by this offense and his criminal history, indicates that he is a `greater than usual threat to others.' CP at 15.
Nor did Thomas admit any of these facts. Although he did not deny that he had sole care of the victim while her mother was not home, he did not admit that he was the mother's boyfriend or that he was in a `position of trust' with either the victim or her mother. And although Blakely does not require a jury finding of a defendant's criminal history, Thomas did not admit his mental state or that he posed a `greater than usual' threat to others. CP at 15. Consequently, Thomas's sentencing procedure violated his Sixth Amendment right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.
See Van Buren, 123 Wn. App. at 639.
Lastly, Thomas asserts that the proper remedy in this case is to remand for resentencing within the standard range. Supp. Br. of Appellant at 4. However, we have expressly adopted the rationale and holding in State v. Harris, 123 Wn. App. 906, 923, 99 P.3d 902 (2004), which permits the court on remand to empanel a jury to consider aggravating factors without violating double jeopardy protections or the separation of powers doctrine. State v. Fero, Wn. App., 104 P.3d 49, 58 (2005). We vacate Thomas' exceptional sentence and remand for sentencing consistent with Blakely and Harris.
Reversed and remanded 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.
HOUGHTON, P.J., and ARMSTRONG, JJ., Concur.