Opinion
Sheryl Gordon McCloud, Seattle, for Appellant.
Steven Mark Lowe, Frank William Jenny, Paige L. Sully, Prosecuting Attorney's Office, Pasco, WA, for Respondent.
BROWN, J.
Marsial Tiscorino, convicted of second degree murder, asserts correctly that his four prior juvenile adjudications washed out under former RCW 9.94A.360(4) (1995) because he committed those offenses before he was 15 years old. We therefore reverse and remand for resentencing, at which time the sentencing court can also specifically indicate whether it is exercising its sentencing discretion under former RCW 9.94A.400(3) (1995) to order the sentence to run consecutively to that of another current juvenile adjudication. Additionally, we reject Mr. Tiscorino's challenge to the juvenile court's decline decision under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because our resolution of the sentencing issues will likely result in Mr. Tiscorino's earlier release, we elect to proceed without waiting for the Washington Supreme Court to decide issues related to the retroactive application of its holding in In re Pers. Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002).
FACTS
On July 5, 1995, 15 year old Mr. Tiscorino participated in a gang-related shooting resulting in the death of an opposing gang member's father. After an unfavorable decline hearing, Mr. Tiscorino pleaded guilty to second degree felony murder with assault as the predicate felony. At sentencing, the trial court included in Mr. Tiscorino's offender score prior juvenile dispositions which later case law held washed out. Mr. Tiscorino did not timely appeal the sentencing, but this court allowed his late appeal after determining he was not fully informed of his appeal rights.
The procedural history merits additional explanation. Our Supreme Court has decided the legislature did not intend second degree assault to be a predicate felony for second degree felony murder. In re Pers. Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002). But in the Fall 2003 term, the Supreme Court heard additional argument bearing on this issue. See In re Pers. Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801, Supreme Court No. 73504-2, and State v. Hanson, 151 Wash.2d 783, 91 P.3d 888 (2004). We therefore stayed Mr. Tiscorino's appeal. We lifted our stay in April 2004 to permit decision of the other issues in Mr. Tiscorino's appeal to avoid any prejudicial delay of Mr. Tiscorino's release. Subsequently, the Supreme Court issued an opinion in one of the cases— State v. Hanson, 151 Wash.2d 783, 91 P.3d 888 (2004)— and this court applied the holding in Hanson to Mr. Tiscorino's appeal and reversed his conviction. (See the opinion filed under this cause number on August 10, 2004). However, the State contends in a motion for reconsideration that In re Pers. Restraint of Hinton, Supreme Court No. 73504-2, the case that remains undecided, controls here. We therefore withdraw our opinion of August 10, 2004 and reach the sentencing issues raised in Mr. Tiscorino's appeal.
ANALYSIS
A. Offender Score Wash Out
The issue is whether the trial court erred in sentencing by failing to apply the wash-out provisions of former RCW 9.94A.360(4).
Former RCW 9.94A.360(4) in 1994 and 1995 provided that juvenile felonies other than sex offenses were included in the offender score only if the offender was 15 or older at the time he committed the prior juvenile offense. Mr. Tiscorino turned 15 years of age on June 30, 1995, after he committed the four prior juvenile offenses listed as criminal history in his judgment and sentence. Under former RCW 9.94A.360(4) these prior juvenile offenses do not count in his offender score for second degree murder.
Under the statutes in effect in 1995, second degree murder has a seriousness level of XIII. Former RCW 9.94A.320 (1995). With an offender score of " 0," his standard range sentence is 123-164 months. Former RCW 9.94A.310 (1995). The trial court incorrectly sentenced using an offender score of " 3," resulting in a 154-205 month standard range. Accordingly, we reverse and remand for re-sentencing. See State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999); State v. Smith, 144 Wash.2d 665, 30 P.3d 1245, 39 P.3d 294 (2002).
B. Consecutive Sentencing Decision
The issue is whether the trial court erred by failing to recognize it had discretion to concurrently sentence Mr. Tiscorino under RCW 9.94A.400(3) (1995) in light of the record presented here.
Mr. Tiscorino committed a juvenile second degree robbery on June 8, 1995. He committed the subject second degree murder on July 5, 1995. He was sentenced as a juvenile for the second degree robbery on August 25, 1995. He was sentenced on the second degree murder on June 4, 1996. These facts fit within former RCW 9.94A.400(3) (1995), which partly provided that a person sentenced for a felony he committed while not under sentence for a felony shall serve that sentence " concurrently with any felony sentence which has been imposed by any court in this ... state ... subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively. " (Emphasis added.)
However, the prosecutor told the judge without opposition from Mr. Tiscorino's counsel: " That time will have to be served consecutive .... It's JOA time that is in the statute there is no discretion at all for the Court when you sentence ... a juvenile who has a previous juvenile conviction you have to do that. There is no discretion whatever in that case." Report of Proceedings (RP) at 3. (Emphasis added.) Arguably, the trial court accepted the prosecutor's argument because it said during sentencing: " But this court can't grant you any leniency. The only leniency I will grant you is I will give you the bottom of the range 154." RP at 14.
While the State argues that the sentencing court intended to run the sentences consecutively, regardless of whether it had discretion to run them concurrently, the record permits another interpretation, based upon the sentencing court's comments. Because we are reversing Mr. Tiscorino's sentencing due to the offender score problem, the trial court can at resentencing clearly indicate whether it is exercising its discretion under former RCW 9.94A.400(3).
C. Decline Decision
The issue is whether the trial court erred in declining juvenile jurisdiction over Mr. Tiscorino by violating the due process principles identified in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
In Apprendi, the United States Supreme Court held that a sentence enhancement could not be imposed based solely on a trial court's evidentiary finding by a preponderance of the evidence. The court held that procedure violated due process and required that any fact increasing the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.
Division One of this court considered and rejected the argument that Apprendi applies to decline hearings. State v. H.O., 119 Wash.App. 549, 81 P.3d 883 (2003). The H.O. court also rejected an argument that the proof should, at a minimum, be clear and convincing. It reasoned:
We do not read Apprendi and Ring [ v. Arizona 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ] as broadly as does H.O. In those cases, either the guilt or the sentence of an accused was at issue. Neither guilt nor sentencing is at issue at the decline hearing. Rather, the hearing is designed to determine whether the case should be heard in juvenile or adult court. Neither of these cases requires that this jurisdictional determination, intended only to determine the appropriate forum for trial, must be supported by the " beyond a reasonable doubt" standard. All that is required is sufficient evidence for a judge to make the discretionary determination whether to retain or transfer jurisdiction of the case.
....
Alternatively, H.O. cites to Nguyen v. Department of Health Medical Quality Assurance Commission, [144 Wash.2d 516, 29 P.3d 689 (2001), cert. denied, 535 U.S. 904, 122 S.Ct. 1203, 152 L.Ed.2d 141 (2002) ], for the proposition that if a " beyond a reasonable doubt" standard is not adopted, a " clear and convincing evidence" standard should be adopted in decline hearings. This point is unpersuasive.
Nguyen did not involve a decline hearing. Rather, it considered what standard was applicable in determining whether a physician should be deprived of a license to practice. It does nothing to undercut the reasoning or result in [ State v. ] Jacobson, [33 Wash.App. 529, 656 P.2d 1103 (1982) ], which rejects the " clear and convincing evidence" standard.
There is no basis in this jurisdiction to require anything more than a " preponderance of the evidence" standard in making a decision to decline jurisdiction. Jacobson continues to set forth the standard of proof for decline hearings. Accordingly, we reject H.O.'s argument that Apprendi and Ring mandate a " beyond a reasonable doubt" standard to decline jurisdiction.
H.O., 119 Wash.App. at 554-55, 81 P.3d 883 (citations omitted) (emphasis added).
Other states considering whether Apprendi applies to decline proceedings have almost unanimously rejected it. See, e.g., People v. Beltran, 327 Ill.App.3d 685, 262 Ill.Dec. 463, 765 N.E.2d 1071 (2002); State v. Williams, 277 Kan. 338, 85 P.3d 697 (Kan.2004); Caldwell v. Commonwealth of Kentucky, 133 S.W.3d 445 (Ky.2004); State v. Gonzales, 130 N.M. 341, 24 P.3d 776 (2001); but see Commonwealth v. Quincy Q., 434 Mass. 859, 753 N.E.2d 781 (2001).
Given all, we are persuaded to follow Division One of this court and the persuasive authorities. We hold Apprendi does not apply to juvenile declination hearings.
CONCLUSION
We reverse Mr. Tiscorino's sentence and remand for resentencing with the corrected offender score. At resentencing, the trial court can clearly indicate whether it is exercising its discretion to order Mr. Tiscorino's sentences be served consecutively.
WE CONCUR: SCHULTHEIS and KURTZ, JJ.