Opinion
Nos. 53246-4-I; 53248-1-I; 53247-2-I.
April 20, 2009.
Appeals from a judgment of the Superior Court for King County, No. 03-1-00155-1, Richard McDermott, J., entered September 19, 2003.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Cox, J., concurred in by Lau and Leach, JJ.
UNPUBLISHED
This is the second time we have considered Darnell Webster's appeal of his exceptional sentences for theft and residential burglary. When the matter first came before us in March 2005, we rejected his contention that the sentences were unlawful under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The Washington State Supreme Court granted Webster's petition for review and, after a series of lengthy stays, recently remanded the case to us for reconsideration in light of State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005) and In re the Pers. Restraint of Hall, 163 Wn.2d 346, 181 P.3d 799 (2008). At our invitation, the parties filed supplemental briefs addressing post-Blakely developments in the law and certain matters in the record. We now affirm one of Webster's exceptional sentences and reverse the other.
State v. Webster, noted at 126 Wn. App. 1013 (2005). Our original opinion also rejected Webster's challenge to the sentence requirement that he provide biological samples for DNA identification. Webster withdrew that issue from his petition for review, however, and it was not within the scope of the Supreme Court's order of remand. Furthermore, the State Supreme Court rejected identical arguments in State v. Surge, 160 Wn.2d 65, 69, 156 P.3d 208 (2007). Accordingly, our prior disposition of the DNA issue remains unchanged.
Webster pled guilty to residential burglary, attempted residential burglary, first degree theft, and five counts of forgery. As part of his plea, he stipulated to the facts set forth in the certifications for determination of probable cause. One fact mentioned in the certifications was that the burglary victim was inside the residence when the burglary occurred.
The court sentenced Webster to concurrent exceptional sentences of 120 months on the first degree theft and residential burglary counts. The court cited a single aggravating factor for its sentence on the theft count, i.e. that the presumptive sentence was clearly too lenient in light of Webster's offender score of 21. It cited two aggravating factors on the residential burglary count: Webster "burglarized an occupied residence" and the presumptive sentence was clearly too lenient given Webster's offender score, which was at least 20. The court stated that either aggravating circumstance was alone sufficient to support its sentence.
DECISION
Webster first contends, and the State concedes, that the trial court's reliance on the "clearly too lenient" aggravating factor was improper under Blakely and Hughes and was not harmless under Hall. We accept the State's concession, reverse the exceptional sentence on the theft count, and remand for resentencing.
We reach a different result, however, as to the exceptional sentence on the residential burglary count. That sentence rested not only on the "clearly too lenient" factor, but also on the "occupied residence" factor. The State argues that the latter factor is valid under Blakely because Webster stipulated to the facts supporting it. We agree.
A factual stipulation is sufficient to support an exceptional sentence if it establishes an aggravating factor and all that remains for the sentencing court is the legal determination of whether that factor warrants an exceptional sentence. State v. Suleiman, 158 Wn.2d 280, 288-94, 143 P.3d 795 (2006). Here, the stipulated facts established that Webster burglarized a dwelling occupied by the burglary victim. Nothing more was required to establish the statutory aggravating factor. And the only determination left for the court was whether that factor was sufficiently substantial and compelling to warrant exceptional sentence. The stipulation was thus sufficient to support the exceptional sentence.
See RCW 9.94A.535(u) ("The current offense is a burglary and the victim of the burglary was present in the building or residence when the crime was committed.").
Contrary to Webster's assertions, Suleiman did not require any additional stipulation in this case. Webster correctly points out that the Suleiman court not only required a stipulation to facts, but also a stipulation to "factual conclusions" necessary to establish the aggravating factor at issue in that case. Id. at 293. But unlike the aggravating factor at issue here, the aggravating factor in Suleiman — i.e. that the defendant knew or should have known that one of his victims was particularly vulnerable — could not be established merely by a stipulation to bare facts. Rather, that factor required additional stipulations to "factual conclusions" that the stipulated facts showed particular vulnerability, that Suleiman knew or should have known of that vulnerability, and that such vulnerability was a substantial factor in the crime. Suleiman, 158 Wn.2d at 293. By contrast, the aggravating factor at issue here is established by a single fact: the burglary victim's presence in the burgled dwelling. Once that fact is proven or stipulated, the aggravating factor is established. No "factual conclusions" are necessary. Suleiman is thus distinguishable.
Webster also challenges the court's conclusion that "there are substantial and compelling reasons justifying an exceptional sentence [on the burglary count] based on either of the two aggravating factors." Citing Suleiman, he contends this conclusion "is more in the nature of decision-making which the Washington Supreme court has labeled as fact-finding which must be done by a jury under Blakely." Suleiman, however, repeatedly states that the "substantial and compelling" determination is a question of law for the court. Suleiman, 158 Wn.2d at 290-91. The challenged conclusion of law does not violate Blakely.
Accordingly, because one of the aggravating factors on the burglary count is valid, and because the court expressly stated that either factor alone would support its exceptional sentence, we affirm the sentence on that count. Hughes, 154 Wn.2d at 134 (when trial court relies on valid and invalid aggravating factors, appellate court may still uphold exceptional sentence if it is satisfied the trial court would have imposed the same sentence on only the valid factors).
The State contends the court on remand will have authority under CrR 6.16(b) to empanel a jury to consider aggravating factors previously considered by the sentencing court. The supreme court has repeatedly held, however, that no such authority exists. State v. Coleman, 159 Wn.2d 509, 516, 150 P.3d 1126 (2007) (citing State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007)); State v. Womac, 160 Wn.2d 643, 662-63, 160 P.3d 40 (2007) (citing State v. Hughes, supra. at 149). Although recent amendments to RCW 9.94A.537 purport to create authority for empanelling sentencing juries on remand, Laws of 2007, ch. 205, the parties have not addressed those amendments and we express no opinion regarding their application to this case.
The sentence on the residential burglary count is affirmed. The sentence on the theft count is reversed and remanded for resentencing.
WE CONCUR: