Opinion
No. 52043-1-I.
January 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 02-1-01336-4, Catherine D. Shaffer, J., entered February 21, 2003.
Reversed and remanded by unpublished per curiam opinion.
Roger Fualaau appeals his exceptional sentence upward for possession of a firearm. He argues that the exceptional sentencing statute is facially unconstitutional, that his waiver of a jury trial was not knowing and voluntary, that the trial court erred by considering acts unrelated to the charged offense in setting the sentence, and that the State violated its plea agreement with him by changing its sentencing recommendation. We vacate the exceptional sentence and remand for resentencing.
FACTS
In November 2001, Roger Fualaau attempted to sell a gun to Dustin Chesley. Fualaau loaded a magazine cartridge into the gun, fired it to show Chesley that it worked and removed the cartridge. Fualaau then squeezed the trigger again and the gun fired, hitting Chesley in the leg. Chesley was airlifted to Harborview.
In early January 2002 Fualaau admitted to police that he shot Chesley and claimed that it was an accident. The State charged Fualaau with one count of unlawful possession of a firearm under RCW 9.41.040(1)(a), (2)(a).
Fualaau was arrested for unlawful possession of a firearm again in April 2002. In July and August 2002 Fualaau entered a plea agreement in which he agreed to plead guilty to the November 2001 charge of unlawful possession of a firearm. In return the State agreed to recommend a standard range sentence of 30 months, to move to dismiss another charge for unlawful possession in April and not to pursue any additional charges relating to the November or April incidents. The plea agreement provided that the "State's recommendation will increase in severity if additional criminal convictions are found or if the defendant commits any new charged or uncharged crimes, fails to appear for sentencing or violates the conditions of his release."
In December 2002, the State charged Fualaau with two counts of kidnapping in the first degree and one count of assault in the second degree. These offenses were committed December 8, 2002. Neither offense was considered for sentencing purposes in this case.
The trial court held Fualaau's sentencing hearing in February 2003. The standard range sentence for Fualaau's crime was 26 to 34 months. Because Fualaau had been charged with new crimes between the taking of the guilty plea and the sentencing hearing, the State changed its sentencing recommendation from 30 to 34 months. Fualaau objected to the prosecutor's recommended change asserting the plea agreement provided for an increased sentence if he was convicted of a new crime, not if he was simply charged with a new crime. Fualaau requested a 26-month sentence, in part because as a paraplegic he would suffer more in prison than others. The trial court rejected both recommendations and instead imposed an exceptional sentence upward of 60 months. The trial court based the exceptional sentence on two aggravating factors: first, the severity of Chesley's injuries; second, Fualaau's possession of a firearm on April 7, 2002. The trial court stated that either factor standing alone warranted the exceptional sentence.
ANALYSIS
I. Constitutionality
Fualaau argues that the United States Supreme Court recently declared Washington's Sentencing Reform Act (SRA) provisions relating to exceptional sentences facially unconstitutional. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d. 403 (2004). This position was rejected in State v. Harris, 123 Wn. App. 906, 99 P.3d 902 (2004) ove rruled on other grounds by State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005). We adhere to that ruling here.
II. Validity of the Jury Waiver
Fualaau argues that he did not validly waive his right to have a jury determine beyond a reasonable doubt the factual basis for an exceptional sentence. He argues that prior to the Blakely decision he did not know he had this right, as opposed to the statutory provision that allows judicial fact-finding for exceptional sentences. Therefore, he could not knowingly and intelligently waive that right. At the time that Fualaau waived his right to a jury trial (2002), Washington law did not extend Apprendi jury rights to facts supporting exceptional sentences. See Harris, 123 Wn. App. at 906; Hughes, 154 Wn.2d 118, 152 n. 16. As such, he could not waive a right that he did not have. In 2004, however, the United States Supreme Court decided that facts supporting an exceptional sentence must by found by a jury, unless they are stipulated to by the defendant, or a prior conviction. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Blakely extends to convictions or direct appeals that were not final at the time it was announced. State v. Hagar, 158 Wn.2d 369, 373, 144 P.3d 298 (2006). Accordingly, while Fualaau cannot argue invalid jury waiver, he can argue that the facts supporting his exceptional sentence were based on improper judicial fact-finding. Exceptional sentences based on improper judicial fact-finding require a remand for resentencing within the standard sentencing range. Hughes, 154 Wn.2d at 156.
III. Basis for Exceptional Sentence
Fualaau's plea agreement included a stipulation to the facts for sentencing purposes:
In accordance with RCW 9.94A.370, the parties have stipulated that the court, in sentencing, may consider as real and material facts information as follows:
x as set forth in the certification(s) of probable cause and prosecutor's summary.
x as set forth in King County #02-1-03079-0 KNT.
The maximum sentence was stated as 10 years. The stated standard range sentence was 26 to 34 months. The prosecutor's sentencing recommendation was 30 months. The Statement of Defendant on Guilty Plea further stated:
(g) The judge does not have to follow anyone's recommendation as to sentence. The judge must impose a sentence within the standard range unless the judge finds substantial and compelling reasons not to do so. If the judge goes outside the standard range, either [the defendant] or the State can appeal that sentence. If the sentence is within the standard range, no one can appeal the sentence.
Fualaau's stipulation was valid for purposes of guilt and sentencing. However, under recent Washington Supreme Court decisions, the trial court engaged in improper Blakely fact-finding when it increased Fualaau's sentence based on facts outside of the record. See Hughes, 154 Wn.2d at 156; State v. Suleiman, 158 Wn.2d 280, 143 P.3d 795 (2006).
A. The April 2002 Arrest
Fualaau argues the trial court erred by using his April 2002 arrest for unlawful possession of a firearm to justify an imposition of an exceptional sentence for the November 2001 possession charge. A trial court may not rely on facts that establish the elements of a more serious crime or additional crimes in its imposition of an exceptional sentence, except by stipulation or pursuant to RCW 9.94A.535(2). RCW 9.94A.530(2). Here, the trial court relied on Fualaau's later arrest to impose an exceptional sentence for this earlier crime. Neither exception to the rule allowed the trial court to do so. The State properly concedes that the trial court erred by imposing the exceptional sentence on this ground.
B. Chesley's Injury
"Any fact that increases the penalty for a crime beyond the prescribed statutory maximum, besides the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt." Hagar, 158 Wn.2d at 373 (citing Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). "[T]he `statutory maximum' for Apprendi purposes 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." Hagar, 158 Wn.2d at 373 (quoting Blakely, 542 U.S. 296).
In Suleiman, the defendant agreed to "stipulate to real and material facts as written in the certification for determination of probable cause and the prosecutor's summary without stipulating that those facts are a legal basis for an exceptional sentence." Similarly, in the plea agreement the parties stipulated that the facts set forth in the certification for determination of probable cause and the prosecutor's summary were "real and material facts for purposes of this sentencing." Suleiman, 158 Wn.2d at 285 (emphasis added). The trial court imposed an exceptional sentence supported by its conclusions that the defendant knew or should have known that one of his victims was particularly vulnerable. The Washington State Supreme Court held that this violated Blakely, because the additional facts on which the trial court based its exceptional sentence were not found by a jury beyond a reasonable doubt, and were not stipulated to by the defendant. Blakely, 542 U.S. 296. The court recognized that while the stipulation documents implied that the defendant knew or should have known that his victim was particularly vulnerable, they did not state that explicitly, or state that vulnerability was a substantial factor in the crime.
In Hagar, the defendant stipulated to the facts set forth in the certification for probable cause, the prosecutor's summary, and the facts set forth in an appendix to the agreement. The plea agreement informed Hagar that the State would be seeking an exceptional sentence of 43 months but that the judge would be required to sentence within the standard range unless the judge found substantial and compelling reasons to depart from it. Hagar, 158 Wn.2d at 371-372. The trial court imposed an exceptional sentence on the finding that the defendant's crimes constituted a "major economic offense." The Washington State Supreme Court held this was a violation of Blakely because although the defendant stipulated to certain facts and entered into the plea agreement with the understanding that the trial judge could engage in fact finding, and could impose an exceptional sentence beyond the standard range, but not exceeding the maximum allowed by the statute, the defendant did not stipulate that the crimes constituted a "major economic offense." Hagar, 158 Wn.2d 375. The sentence also violated Blakely because the exceptional sentence was predicated on an unstipulated fact that was not found by a jury beyond a reasonable doubt.
The trial court imposed an exceptional sentence on Fualaau based upon the severity of Chesley's injuries. Fualaau's stipulation did not explicitly state that the facts stipulated to form a legal basis for an exceptional sentence. He did not explicitly stipulate that Chesley's injuries were severe. Further, a jury did not find beyond a reasonable doubt that Chesley's injuries were severe. While the factual record implied that the injuries were severe, this is not sufficient to meet the requirements of the Sixth Amendment right to trial by jury. The trial court erred when it imposed an exceptional sentence based on the severity of Chesley's injuries.
IV. Breach of The Plea Agreement
Fualaau argues that the State violated its plea agreement by recommending a 34-month sentence. Specifically, he contends that the plea agreement provided for an increased sentence only if he was convicted of committing a new crime, not if he was simply charged with committing a new crime. The plea agreement provided that the "State's recommendation will increase in severity if additional criminal convictions are found or if the defendant commits any new charged or uncharged crimes, fails to appear for sentencing or violates the conditions of his release."
A plea agreement is a binding contract when accepted by the trial court and here the trial court accepted the agreement. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997) Fualaau argues that this court should analyze this agreement under the law of contracts and that written contract terms should be construed against the drafter. Guy Stickney, Inc., v. Underwood, 67 Wn.2d 824, 827, 410 P.2d 7 (1966). He argues the plea agreement should be construed to require conviction to satisfy the unambiguous requirement that he commit a new crime before the prosecutor may change its sentencing recommendation. Fualaau argues that the State cannot revoke the plea agreement because he had not been convicted of a crime at the time of sentencing. His argument is not well taken.
The language of the plea agreements points to four triggers for withdrawal of the sentence recommendation. The first trigger is that any additional criminal convictions are found. The second trigger is commission of a crime which may or may not have been charged and therefore for which no conviction has occurred. The third is failure to appear for sentencing. The fourth is violation of the conditions of release. Under the first trigger, if Fualaau were convicted of a different crime between his conviction on this charge and sentencing, certainly the new offense would constitute newly discovered criminal history at the time of sentencing on the first conviction. We also note the language of the plea agreement does not expressly require conviction to make the second, third or fourth triggers effective. Fualaau's position that there is no crime until convicted would render the second prong of the agreement meaningless, since a conviction would already be covered by the first trigger. Fairly read, the second trigger advises the defendant that criminal conduct resulting in arrest will jeopardize the sentencing recommendation contained in the plea agreement, even if charges have not been filed or a conviction has not been entered. Fualaau was arrested and charged with an additional crime subsequent to entering into the plea bargain. This alleged criminal conduct was sufficient to relieve the State of the obligation to recommend the agreed sentence.
We vacate the exceptional sentence and remand for resentencing.