Opinion
66057-8-I
10-08-2012
STATE OF WASHINGTON, Respondent, v. CLINTON ROBINSON, Appellant.
UNPUBLISHED OPINION
Spearman, A.C.J.
A jury convicted Clinton Robinson of second degree trespass, residential burglary, and making a false statement to an officer. The jury found in a special verdict that he committed the burglary "shortly after" being released from incarceration on a prior burglary sentence, and the trial court imposed an exceptional sentence on that basis. Robinson challenges the exceptional sentence on grounds that the rapid recidivism enhancement statute is unconstitutionally vague. We reject this argument because the mere fact that a law requires subjective evaluation to determine whether it has been violated does not mean the law is unconstitutional. We also reject Robinson's argument that the jury instruction for the special verdict was faulty, and affirm.
FACTS
A jury convicted Clinton Robinson of second degree trespass, residential burglary, and making a false statement to an officer. The jury was then charged with answering the special verdict of whether Robinson committed the burglary "shortly after being released from incarceration." The evidence showed that Robinson was released from confinement on June 14, 2009 and he committed the crime of residential burglary on August 23, 2009. The instructions for the special verdict informed the jury that it must unanimously agree before it could return the special verdict:
You must fill in the blank provided in the special verdict form the word "yes" or "no, " according to the decision you reach.
Because this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the special verdict form[s] to express your decision. . . .
The jury found Robinson had committed the burglary shortly after being released from incarceration. On the basis of the special verdict finding, the trial court imposed an exceptional sentence. Robinson appeals the exceptional sentence.
DISCUSSION
Robinson first argues that RCW 9.94A.535(3)(t), which permits an aggravating factor of commission of an offense "shortly after" release from confinement, is unconstitutionally vague and therefore violates the Due Process clause of the Fourteenth Amendment. We disagree.
We review de novo a challenge to the constitutionality of a statute. State v. Shultz, 138 Wn.2d 638, 643, 980 P.2d 1265 (1999). Where the statute does not impinge on First Amendment rights, we evaluate a vagueness challenge "by examining the statute as applied under the particular facts of the case." State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992). Statutes are presumed constitutional. City of Spokane v. Vaux, 83 Wn.2d 126, 129, 516 P.2d 209 (1973). When a statute does not define terms alleged to be unconstitutionally vague, we "may 'look to existing law, ordinary usage, and the general purpose of the statute' to determine whether 'the statute meets constitutional requirements of clarity.'" State v. Hunt, 75 Wn.App. 795, 801, 880 P.2d 96 (1994) (quoting State v. Russell, 69 Wn.App. 237, 245, 848 P.2d 743 (1993)).
A statute violates the due process clause if (1) it "does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed;" or (2) it "does not provide ascertainable standards of guilt to protect against arbitrary enforcement." State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001) (internal quotation marks omitted) (quoting City of Bellevue v. Lorang, 140 Wn.2d 19, 30, 992 P.2d 496 (2000)); see also State v. Zigan, 2012 WL 504606, at *3, (No. 29464-1, filed Feb. 16, 2012).
"The requirement that penal statutes define a criminal offense with sufficient definiteness, i.e., provide fair warning, protects individuals from being held criminally accountable for conduct which a person of ordinary intelligence could not reasonably understand to be prohibited." City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990) (citing Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975)). "Accordingly, the test for whether the penal statute is sufficiently definite is common intelligence." Douglass, 115 Wn.2d at 179 (citing State v. Motherwell, 114 Wn.2d 353, 369, 788 P.2d 1066 (1990).
"This test, however, does not demand impossible standards of specificity or absolute agreement." Douglass, 115 Wn.2d at 179 (citing Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855 (1983)). Thus, "the due process requirement that a penal statute define a criminal offense with sufficient definiteness does not extend to invalidating statutes which a reviewing court believes could have been drafted with greater precision." Id. (citing Rose, 423 U.S. at 49). "In other words, 'vagueness in the constitutional sense is not mere uncertainty.'" Id. (quoting State v. Smith, 111 Wn.2d 1, 10, 759 P.2d 372 (1988). "Vagueness in the constitutional sense means that persons of ordinary intelligence are obliged to guess as to what conduct the ordinance proscribes." Id.
Under RCW 9.94A.535(3)(t), a sentencing court may impose an aggravated exceptional sentence after a finding that "[t]he defendant committed the current offense shortly after being released from incarceration." The term, "shortly after" is not defined. Division Three of this court recently held this statute is not unconstitutionally vague in State v. Zigan, 2012 WL 504606, (No. 29464-1, filed Feb. 16, 2012). In Zigan, the court reviewed multiple appellate court decisions on this issue, including State v. Butler, 75 Wn.App. 47, 876 P.2d 481 (1994) (affirming rapid recidivism exceptional sentence after defendant committed robbery and attempted rape on same day he was released from prison); State v. Saltz, 137 Wn.App. 576, 154 P.3d 282 (2007) (affirming rapid recidivism exceptional sentence after defendant committed malicious mischief 30 days after release); and State v. Combs, 156 Wn.App. 502, 232 P.3d 1179 (2010) (eluding offense committed six months after release from prison is not committed "'shortly after being released.'") Combs, 156 Wn.App. at 506.
Although we reversed the exceptional sentence in Combs, we also held "[w]e do not set an outer time limit on what constitutes a short period of time. That period will vary with the circumstances of the crime involved[.]" Combs, 156 Wn.App. at 506.
The Zigan court concluded the fact that the rapid recidivism statute requires some subjective evaluation does not make it unconstitutionally vague:
Based on the above cases, RCW 9.94A.535(3)(t) requires some subjective evaluation. But that a law requires subjective evaluation to determine whether the enactment has been violated does not mean the law is unconstitutional. City of Spokane v. Douglass, 115 Wn.2d 171, 181, 795 P.2d 693 (1990). As applied here, RCW 9.94A.535(3)(t) is not vague. Mr. Zigan committed the offense just over two months after his incarceration. No reasonable person could believe that the circumstances presented here constitute anything other than "[t]he defendant committed the current offense shortly after being released from incarceration." RCW 9.94A.535(3)(t). Thus, the term is not unconstitutionally vague as applied to the facts.Zigan, 2012 WL 504606, at *4. Here, as in Zigan, Robinson committed the burglary just over two months after being released from a prior burglary incarceration. The facts in these two cases are markedly similar, and we adhere to Zigan.
Robinson next argues that his exceptional sentence must be reversed because the jury instruction for the aggravating factor of rapid recidivism was faulty under State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010) and State v. Ryan, 160 Wn.App. 944, 252 P.3d 895 (2011), because it required jury unanimity in order to return a "no" finding. In our original opinion, we agreed and vacated the exceptional sentence on that ground. See State v. Robinson, 2012 WL 899256 (March 19, 2012). But the Supreme Court accepted review of our decision and remanded with instructions to reconsider in light of State v. Nuñez, 174 Wn.2d 707, P.3d (2012). In Nuñez, the Supreme Court overruled the portions of Bashaw, Ryan, and State v. Goldberg, 149 Wn.2d 888, 895, 72 P.3d 1083 (2003) upon which our original opinion relied and held that it is not error to instruct the jury that it must unanimously agree before returning a "no" finding on a special verdict. Nuñez, 174 Wn.2d at 714. Because the jury instruction at issue here was substantively identical to that approved in Nunez, we now affirm the exceptional sentence. Accordingly, we vacate our previous opinion and substitute this opinion.
Affirmed.