Opinion
No. 31115-1-II
Filed: February 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 00-1-01280-2. Judgment or order under review. Date filed: 11/13/2003. Judge signing: Hon. Roger a Bennett.
Counsel for Appellant(s), David Schultz, Attorney at Law, 430 NE Everett, Camas, WA 98607-2115.
Counsel for Respondent(s), Sonya Lorraine Langsdorf, Attorney at Law, Clark Co Prosc Atty Ofc, PO Box 5000, Vancouver, WA 98666-5000.
Larry Lee Bruner appeals his sentence on remand, arguing that (1) the court on remand was prohibited from considering a prior Oregon sex offense when determining his offender score; (2) the court on remand failed to properly classify the prior Oregon offense; and (3) his exceptional sentence is improper under Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We hold that the court on remand properly considered Bruner's prior Oregon sex offense and that it properly relied on the trial court's initial classification of this offense and offender score calculation because these issues were not addressed in his prior appeal. But we vacate the exceptional sentence and remand for resentencing in accordance with Blakely.
In his opening brief, filed April 23, 2004, Bruner originally asserted that the exceptional sentence was inappropriate under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Supreme Court filed Blakely in June 2004, and Bruner addressed Blakely in his reply brief. The State has not responded to this argument.
Bruner also argues that the facts do not support the court's finding that he abused a position of trust and do not justify the exceptional sentence. Because we vacate Bruner's exceptional sentence under Blakely, we do not reach this argument.
Facts
For a complete recitation of the facts underlying this case, we refer to our prior unpublished opinion, State v. Bruner, noted at 114 Wn. App. 1078, 2002 WL 31895139 (2002). We repeat here only those facts pertinent to Bruner's current arguments.
On January 24, 2001, a jury found Bruner guilty of second degree rape of a child and second degree child molestation. At sentencing, the trial court compared Bruner's 1981 Oregon conviction for first degree sex abuse committed between January and August 1980, with its counterpart under Washington law and included it in Bruner's offender score. The trial court then determined that the Oregon offense placed Bruner under the Persistent Offender Accountability Act (POAA) and sentenced him to life imprisonment without the possibility of parole.
Bruner appealed, arguing inter alia that `the trial court erred in imposing a sentence of life without possibility of release under the POAA,' and asserting that `his prior Oregon conviction of first degree sex abuse could not be counted in his offender score.' State v. Bruner, noted at 114 Wn. App. 1078, 2002 WL 31895139, at *8 (2002) (unpublished). In an unpublished opinion, we affirmed Bruner's convictions but stayed resolution of his sentencing argument pending our Supreme Court's review of State v. Delgado, 109 Wn. App. 61, 33 P.3d 753 (2001). Bruner, 2002 WL 31895139, at *8-9; see also, State v. Bruner, noted at 116 Wn. App. 1011, 2003 WL 21235424, at *1 (2003) (unpublished).
After our Supreme Court decided Delgado, see State v. Delgado, 148 Wn.2d 723, 63 P.3d 792 (2003), we issued a supplemental unpublished opinion holding that `[i]n light of Delgado, we hold that Bruner's 1981 Oregon conviction cannot be included in his current offender score.' Bruner, 2003 WL 21235424, at *1. But, despite this holding, our entire analysis of this issue focused not on whether the Oregon offense could be included in Bruner's offender score, but on whether the prior offense could be the basis of Bruner's POAA sentence:
In imposing Bruner's sentence under then existing case law, the trial court compared the 1981 Oregon conviction with its counterpart under Washington law and included it in calculating Bruner's offender score. [Former RCW 9A.44.100 (1981), indecent liberties.] Because the resulting offender score made Bruner a persistent offender, the court sentenced him under the Persistent Offender Accountability Act (POAA) to life imprisonment without the possibility of parole. Former RCW 9.94A.030(27) (2000).
Bruner argues that the trial court erred in including his prior Oregon conviction in his current offender score.
On July 22, 2001, after Bruner committed his current offense, the legislature amended the POAA to add a comparability clause, requiring a sentencing court to equate an earlier out of state conviction with its counterpart under the Washington criminal code. Laws of 2001, ch. 7, sec. 2. The Delgado court was asked to determine whether the 2001 amendment applies retroactively and decided that it does not. Delgado, [ 148 Wn.2d at 727-28]. We now review Bruner's current sentence accordingly.
We first consider the version of the POAA in effect at the time of Bruner's current offense. Delgado, [ 148 Wn.2d at 726]. Under the 2000 Washington criminal code, Delgado could be sentenced as a persistent offender, first, if his current conviction was for rape in the first degree, rape of a child in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion as his current offense; and second, if before the commission of the current offense, he had been convicted of an offense enumerated in former RCW 9.94A.030(2)(b)(i). See also former RCW 9.94A.560 (2000); former RCW 9.94A.030(20).
The Delgado Court clarified that former RCW 9.94A.030(2)(b)(i) `expressly lists those qualifying prior convictions which expose an offender to a sentence of life without parole as a two-strike persistent offender.' Delgado, [ 148 Wn.2d at 727]. Indecent liberties, former RCW 9A.44.100 (1981), is not an offense enumerated in former RCW 9.94A.030(27)(b)(i). Thus, under Delgado, Bruner's 1981 Oregon conviction cannot be counted as a first strike for purposes of sentencing him as a persistent offender.
By separate order, we lift the stay of this appeal. We vacate Bruner's sentence of life imprisonment with no possibility of parole and remand to the superior court for resentencing in conformity with the POAA, as clarified in Delgado.
Bruner, 2003 WL 21235424, *1-2 (emphasis added).
On remand, defense counsel argued that our supplemental opinion precluded the court from considering the Oregon offense as part of Bruner's criminal history. Defense counsel also argued that the State had failed to provide the court with any evidence that would support the comparability analysis or classification of the Oregon offense. The State contended that the court could still consider the Oregon offense because we had only addressed the Oregon offense in the context of whether it supported the POAA sentence.
The court agreed with the State and concluded that our supplemental opinion did not bar the use of the Oregon offense, Bruner's only prior felony offense, in his offender score. The court also accepted the prior sentencing court's comparability analysis because this issue was not addressed in Bruner's initial appeal. As a result, the court adopted the previous offender score of three and determined that the standard range for the rape conviction was 102 to 136 months and that the standard range for the molestation conviction was 31 to 41 months
Instead of imposing a POAA, the court found that Bruner had abused a position of trust, and imposed exceptional sentences of 280 months on the rape conviction and 120 months on the molestation conviction. It ran these sentences concurrently. The court further found that it would have imposed the exceptional sentences regardless of Bruner's offender score.
I. Consideration of Oregon Offense
Bruner first argues that our prior supplemental opinion precluded the court on remand from including his Oregon offense in his offender score. We disagree.
Although the opening paragraph of our supplemental opinion appears to hold that the trial court wrongly included the Oregon offense in Bruner's offender score, the only issue we addressed in the supplemental opinion was whether the trial court could use the Oregon conviction as the basis of a POAA sentence. See Bruner, 2003 WL 21235424, at *1-2. A complete reading of our opinions shows that we did not hold that the Oregon offense was no longer part of petitioner's offender score, and the court on remand did not err by considering this offense.
II. Proof/Comparability Analysis/Wash Out
Bruner next contends that the State failed to prove on remand that the Oregon conviction counted as a felony conviction under Washington law. He further contends that, even if this were a felony conviction, it washed out of his criminal history because he was crime free for a 10-year period.
On remand following review, a trial court may properly exercise its discretion by declining to revisit an issue that was not the subject of review. State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993). Although petitioner arguably raised the issues of proof, comparability, and potential wash out in his first direct appeal, our prior opinions did not address these issues, and Bruner did not challenge these decisions. As these issues were not the subject of review, the court on remand did not err by relying on the trial court's offender score determination.
III. Exceptional Sentence
Finally, Bruner argues that his exceptional sentence is invalid under Blakely. Because Bruner raised this issue in his reply brief, the State did not address this issue. But, because Burner initially raised this issue in his opening brief under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), we will address the issue.
Under the Sentencing Reform Act (SRA), an exceptional sentence upward may be based upon statutory or nonstatutory aggravating factors. See former RCW 9.94A.535. Our current statutory scheme permits a judge to impose an exceptional sentence without the factual determinations being charged, submitted to a jury, or proved beyond a reasonable doubt. State v. Gore, 143 Wn.2d 288, 313-14, 21 P.3d 262 (2001). But the United States Supreme Court recently decided this practice does not comply with the Sixth Amendment. Therefore, facts supporting an exceptional sentence must be admitted by the defendant or found by a jury beyond a reasonable doubt. Blakely, 124 S. Ct at 2538.
Laws of 2002, ch. 169, sec. 1.
Here, the trial court made the findings supporting the enhancement and Bruner did not admit the facts supporting the exceptional sentence. Thus, this case clearly falls under Blakely. Because Blakely errors are not subject to harmless error analysis, State v. Fero, ___ Wn. App. ___, 104 P.3d 49 (2005), we vacate the exceptional sentence and remand for resentencing consistent with Blakely. For the purposes of compliance with Blakely, we adopt the rationale and holding in State v. Harris, ___ Wn. App. ___, 99 P.3d 902 (2004), that permits the court on remand to empanel a jury to consider aggravating factors without violating double jeopardy or the separation of powers.
We vacate the exceptional sentence and remand for resentencing in accordance with Blakely.
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., concur.
I agree with the majority that the sentencing court properly included Bruner's prior Oregon sex offense in his offender score and that it did not abuse its discretion by refusing to address sentencing issues not raised in his initial appeal to this court. I also agree that Bruner's exceptional sentence must be vacated and that on remand the State may empanel a jury and prove facts beyond a reasonable doubt in support of an exceptional sentence. But I part from the majority on the reason why Bruner's exceptional sentence must be reversed.
In holding that the superior court has the inherent authority to empanel a jury on remand, the majority adopts the holding and rationale of State v. Harris, 123 Wn. App. 906, 99 P.3d 902 (2004). I agree with Harris, but also cite one case which was not mentioned in that opinion. In State ex rel. Herron v. Browet, Inc., 103 Wn.2d 215, 691 P.2d 571 (1984), the court addressed whether due process required the right to a jury trial under the contempt provision of the moral nuisance statute. The statute at issue required that the case be heard before a judge and without a jury. Because the statute imposed a criminal penalty, our Supreme Court concluded that the statute necessarily included the required jury trial right. The court then rejected the appellants' argument that because the statute explicitly provided that no such right existed, the statute was facially invalid:
Appellants urge this court to go further and hold that [the moral nuisance statute] is unconstitutional on its face. . . .
Legislative acts are presumed to be constitutional. Wherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality.
. . . .
. . . [T]oday we hold that a jury trial is an additional due process protection which must be provided. Accordingly, we superimpose our case law requirement for a jury trial onto [the moral nuisance statute]. So construed, that statute fully meets due process requirements. Browet, 103 Wn.2d at 219-20 (citations omitted).
The majority follows this court's recent opinion in State v. Fero, ___ Wn. App. ___, 104 P.3d 49 (2005), which held that Blakely errors, i.e., increased sentencing based on facts not admitted by the defendant or found by a jury, are not subject to harmless error analysis. See State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (where the error concerns a misstated or omitted element of a crime, the error is harmless if the element at issue is supported by overwhelming and uncontroverted evidence). As I stated in my dissent in Fero, Blakely errors are procedural and, therefore, may be harmless. Fero, 104 P.3d at 61 (Quinn-Brintnall, C.J., concurring in part and dissenting in part). Nonetheless, I agree that Bruner's exceptional sentence must be vacated because, applying what I believe to be the proper harmless error test, it does not, on this record, appear beyond a reasonable doubt that the jury would have found Bruner to have abused a position of trust when he raped and molested H.L.A.
Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
An exceptional sentence may be imposed on the basis of an `abuse of trust' where the defendant was in a position of trust and used this position to facilitate the commission of the offense. Former RCW 9.94A.390(2)(d)(iv) (1999); State v. Bedker, 74 Wn. App. 87, 95, 871 P.2d 673, review denied, 125 Wn.2d 1004 (1994). In cases involving crimes against children, whether the defendant is in a position of trust depends on a number of factors, including the length of the relationship with the victim, the trust relationship between the primary caregiver and the defendant, and the vulnerability of the victim to trust because of age. Bedker, 74 Wn. App. at 95.
Here, although the evidence does support a finding that Bruner abused a position of trust in committing his offenses, such evidence is not overwhelming and uncontroverted. Bruner was the live-in boyfriend of H.L.A.'s mother. H.L.A. had lived with Bruner for approximately 14 months when the rape and molestation occurred. Both H.L.A. and Bruner testified that they had a very close friendship. The rape and molestation occurred while Bruner was giving H.L.A. a backrub which she routinely requested from Bruner due to back pain. Each of these facts would support an `abuse of trust' finding.
But had the jury been asked to make such a finding, they would also have had to consider the fact that H.L.A. was nearing 14 years of age when the rape and molestation occurred. The older a child is, the less likely it is that she or he is vulnerable to trust or that a position of trust can be used to facilitate the crime. See former RCW 9.94A.390(2)(b) (victim must be of `extreme youth' to be particularly vulnerable as a matter of law); State v. Woody, 48 Wn. App. 772, 777, 742 P.2d 133 (1987) (`[G]rade school age children' are less likely to be particularly vulnerable because they `are regarded as having achieved a level of reason that sets them apart from younger children.'), review denied, 110 Wn.2d 1006 (1988). In addition, although the record does contain some testimony of Bruner's care for H.L.A., there is little to suggest that Bruner had assumed the role of a de facto parent or guardian, which would provide stronger support for the finding that Bruner was in a position of trust. An adult who is responsible for the care and development of a child is more likely to have power which can be used in a coercive, manipulative, or controlling manner than one whose contact with the child is merely incidental to his relationship with the child's mother. Thus, although there is substantial evidence from which a jury on remand may find beyond a reasonable doubt that Bruner abused a position of trust with H.L.A., the evidence is not so overwhelming and uncontroverted that it may be said as a matter of law that any reasonable jury would make such a finding. For this reason, I concur with the majority decision vacating Bruner's exceptional sentence and remanding for a jury trial on aggravating factors which, if found, may support the imposition of an exceptional sentence.