[No. 58762-5-I. Division One. January 22, 2008.]
[1] Criminal Law — Punishment — Sentence — Outside Standard Range — Validity — Sixth Amendment — Question of Law or Fact — Review — Standard of Review. Whether an exceptional sentence was imposed in violation of the Sixth Amendment is a question of law that an appellate court reviews de novo. [2] Criminal Law — Punishment — Sentence — Validity — Statutory Authority — As-Applied Challenge — Burden of Proof.A convicted offender claiming that a sentencing statute was unconstitutionally applied has the burden of demonstrating that the statute was applied in an unconstitutional manner. [3] Appeal — Review — Issues Not Briefed — First Raised in Oral Argument. Issues not addressed in the parties' briefs and not raised until the rebuttal oral argument will not be considered by the appellate court. [4] Statutes — Construction — Unambiguous Language — In General. Clear and unequivocal statutory language is applied as written; it is presumed that the legislature means exactly what it says. [5] Criminal Law — Punishment — Sentence — Outside Standard Range — Aggravating Factors — High Offender Score — Determination — By Jury — Necessity. RCW 9.94A.535(2)(c) allows a trial court to impose an aggravated exceptional sentence without a finding of fact by a jury if the defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished. Because the offender score is computed based on prior convictions and current convictions, RCW 9.94A.535(2)(c) relates solely to the number of criminal offenses of which the defendant has been convicted as applied to RCW 9.94A.510's sentencing grid. For each of those convictions, the defendant has had the right to be tried by a jury and to be convicted only upon proof beyond a reasonable doubt of the elements of each charged offense. Thus, imposition of an exceptional sentence based on the aggravating sentencing factor in RCW 9.94A.535(2)(c) does not violate the Sixth Amendment because a defendant's convictions must themselves have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guaranties. Nature of Action: Prosecution, under three separate cause numbers, for (1) one count of second degree identity theft and one count of forgery; (2) one count of second degree identity theft and one county of forgery; and (3) one count of first degree identity theft, four counts of forgery, and two counts of unlawful possession of a personal identification device. Superior Court: The Superior Court for Snohomish County, No. 06-1-00241-0, Richard J. Thorpe, J., on August 14, 2006, entered a judgment on a plea of guilty to all of the counts charged under each of the three cause numbers. Per a plea agreement with the defendant, the State recommended concurrent standard range sentences for the convictions. The court imposed concurrent standard range sentences for the convictions under two of the cause numbers and imposed an exceptional sentence for the convictions under the third cause number. The court initially imposed the exceptional sentence on the grounds that the crime was a major economic offense and that, due to the multiple counts, the defendant would go unpunished for some of them. The court later clarified that it was imposing the exceptional sentence on the grounds that the defendant committed multiple offenses and that the resulting high offender score would mean that some of the current offenses would go unpunished if only a standard range sentence were imposed. Court of Appeals: Holding that the defendant's Sixth Amendment right to a jury trial was not violated by the trial court's justifying the exceptional sentence on its determination that the multiple convictions and resulting high offender score would mean that some of the current offenses would go unpunished if only a standard range sentence were imposed, the court affirms the judgment. Jason B. Saunders- and Maureen M. Cyr- (of Washington Appellate Project), for appellant. Janice E. Ellis-, Prosecuting Attorney, and Mary K. Webber-, Deputy, for respondent. ¶1 DWYER, J. — RCW 9.94A.535(2)(c) provides that a sentencing court may impose an exceptional sentence based upon a judicial finding that "[t]he defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished." FACTS ¶2 Newlun was charged with 11 separate counts under three cause numbers. ¶3 The precise charges were as follows: Cause No. 06-1-00223-1 Count I: Second Degree Identity Theft Count II: Forgery Cause No. 06-1-00648-2 Count I: Second Degree Identity Theft Count II: Forgery Cause No. 06-1-00241-0 Count I: First Degree Identity Theft Count II: Forgery Count III: Forgery Count IV: Forgery Count V: Forgery Count VI: Unlawful Possession of Personal Identification Device Count [VII]: Unlawful Possession of Personal Identification Device ¶4 Newlun pleaded guilty to all of the counts charged in each of the three cause numbers. These pleas resulted from negotiations between Newlun and the prosecutor, during which the prosecutor agreed to recommend the imposition of sentences within the applicable standard ranges. ¶5 At Newlun's sentencing hearing, the prosecutor calculated Newlun's standard range sentences as follows: Cause No. 06-1-00223-1 Second Degree Identity Theft — 43 to 57 months Forgery — 22 to 29 months Cause No. 06-1-00648-2 Second Degree Identity Theft — 43 to 57 months Forgery — 22 to 29 months Cause No. 06-1-00241-0 First Degree Identity Theft — 63 to 84 months Forgery — 22 to 29 months Forgery — 22 to 29 months Forgery — 22 to 29 months Forgery — 22 to 29 months Unlawful Possession of Personal Identification Device — 0 to 12 months Unlawful Possession of Personal Identification Device — 0 to 12 months Pursuant to the plea agreement, the prosecutor recommended that the court impose a sentence at the high end of the standard range on each count, with all of the terms of confinement running concurrently. ¶6 At the sentencing hearing, one of Newlun's victims, Guy Randal, addressed the court. Randal stated that he and his wife had been forced to close and reopen their bank accounts on three separate occasions as a result of Newlun's actions, had been harassed by numerous private investigators, and had endured "countless phone calls from businesses and creditors." Randal stated that he and his wife had suffered damage to their credit rating and that they had also come under the scrutiny of both local law enforcement and the naval investigative service as a result of Newlun's unauthorized use of Randal's government and private passports. Randal stated that Newlun's actions ultimately caused him to suffer a breakdown and miss 27 days of work. ¶7 Newlun was also afforded an opportunity to allocute, which he accepted. Newlun stated that he had difficulty controlling his actions because of his addiction to methamphetamines and that he did not understand the impact of his crimes at the time that he was committing them. He expressed remorse and also expressed a desire to undergo chemical dependency treatment. ¶8 The sentencing court imposed maximum standard range sentences on both counts in cause number 06-1-00223-1 and both counts in cause number 06-1-00648-2, to run concurrently, for a total of 57 months confinement. However, the court imposed an exceptional sentence in cause number 06-1-00241-0, ordering that the maximum term of 84 months imprisonment be imposed and that it run consecutively to the sentences on the other two cause numbers, resulting in a total term of confinement of 141 months. The court stated its basis for the imposition of the exceptional sentence: I'm going to declare an exceptional sentence. The information had indicated, and the statement of the defendant on plea of guilty indicated, with respect to each of those seven counts, that the crime was aggravated by the following circumstance: The crime was a major economic offense due to the following factors: The crime involved multiple victims and multiple incidents per victim. And I find that that alone is sufficient for an exceptional sentence. I also find that every single one of these seven counts, there would be—for Counts II through VII, there would be absolutely no additional penalty for those over and above the other two causes, the other four felonies; and the only amount by which the penalty for Count I would be any greater than the others is the 27 months' difference between it and the high end of the standard range on the others. ¶9 On August 11, 2006, the court held a hearing to clarify the sentence. The prosecutor opined to the court that the imposition of an exceptional sentence on the basis that the offense charged was a "major economic offense" could only be imposed upon a jury finding to that effect. ¶10 Newlun now appeals, assigning error to the court's imposition of the exceptional sentence. DISCUSSION Standard of Review RCW 9.94A.535(2)(c) ¶13 Other than the fact of a criminal conviction, any fact providing the basis for an exceptional sentence must be subject to the right of trial by jury. In Blakely v. Washington, the United States Supreme Court held that the application of several of the exceptional sentence provisions of Washington's SRA violated the jury trial right of the Sixth Amendment because those provisions allowed a court to impose a sentence greater than was otherwise permitted by statute based on facts found by the judge rather than by a jury. Blakely, 542 U.S. at 304-05. The Court based its holding on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Apprendi, the Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Applying this rule to former RCW 9.94A.390(2)(h) (1999), recodified as RCW 9.94A.535(2)(h) (Laws of 2000, ch. 28, § 8), as then written, ¶14 In response to the Court's decision in Blakely, the state legislature amended the SRA. In keeping with the rule articulated in Blakely, the 2005 amendments provided that most of the aggravating factors that a sentencing court previously could have cited as the basis for imposing an exceptional sentence henceforth either must be admitted by the defendant or found by a jury in order to provide the basis for an upward departure from the standard sentence range. See LAWS OF 2005, ch. 68, §§ 3-4, codified at RCW 9.94A.535-.537. ¶15 However, in the 2005 amendments to RCW 9.94A.535 the legislature also reserved to the sentencing court several of the decisions, the resolution of which in the affirmative serve to provide a statutory basis for the imposition of an exceptional sentence. Specifically, RCW 9.94A.535 lists instances in which the sentencing court may depart upward from the standard range based upon its own findings. RCW 9.94A.535 now provides that: The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances: . . . . (b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010. (c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished. RCW 9.94A.535(2). ¶16 One day prior to the effective date of the 2005 amendments, however, our state Supreme Court issued a decision addressing the constitutionality of former RCW 9.94A.535, thereby implicating the constitutionality of the current statute. In State v. Hughes, ¶17 Last year, in a decision that also discusses former RCW 9.94A.535(2)(i), the court reaffirmed this holding. In In re Personal Restraint of VanDelft, ¶18 The Hughes and VanDelft decisions were subsequently applied to the 2005-amended version of RCW 9.94A.535(2)(b) in Saltz, 137 Wn. App. at 583-84, wherein the court stated: Even though Mr. Saltz stipulated to the facts of his criminal history, he did not stipulate that the presumptive sentence was too lenient. The trial court then had to make additional factual findings above and beyond the admitted facts to support the exceptional sentence. Thus, RCW 9.94A.535(2)(b) is unconstitutional as applied to Mr. Saltz under Blakely. See Hughes, 154 Wn.2d at 132-34. (Footnote omitted.) ¶19 Newlun's appeal presents a different issue than that addressed in Saltz. The statutory provision addressed in Saltz, RCW 9.94A.535(2)(b), like the preamendment RCW 9.94A.535(2)(i) examined in Hughes and VanDelft, violated the Sixth Amendment because it required a judicial factual finding that the presumptive sentence was "clearly too lenient." Saltz, 137 Wn. App. at 583. Unlike RCW 9.94A.535(2)(b), however, RCW 9.94A.535(2)(c) does not require a judicial factual finding that the presumptive sentence is too lenient. Rather, it allows for a departure from the standard sentence range solely on the basis of the number of criminal offenses of which the defendant has been convicted as they are computed under existing principles of the SRA. ¶20 The core concern of the Blakely court, as discussed in Hughes and VanDelft—the imposition of exceptional sentences based on judicial factual findings extending beyond the fact of the defendant's criminal convictions—is not implicated by the current version of RCW 9.94A.535(2)(c). For purposes of imposing an exceptional sentence, the offender score is computed based on both prior convictions and current convictions. RCW 9.94A.589(1)(a), .525(1). Indeed, for purposes of computing the offender score in relation to the imposition of an exceptional consecutive sentence, the legislature has determined that current offenses are to be treated as "prior convictions." See RCW 9.94A.589(1)(a) ("the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score"). The standard sentence range is, in turn, computed based on the combination of the offender score and the statutory seriousness level of the current offenses of which the defendant has been convicted. RCW 9.94A.530. Thus, the sentencing court need only find the fact of the defendant's convictions in order to be justified in imposing an exceptional sentenced pursuant to RCW 9.94A.535(2)(c). For each of those convictions, the defendant has had the right to be tried by a jury and to be convicted only upon proof beyond a reasonable doubt of the elements of each charged offense. ¶21 The only other judicial act required to permit the imposition of an exceptional sentence pursuant to RCW 9.94A.535(2)(c) is not a factual finding at all. Rather, it is simply the application of RCW 9.94A.510's sentencing grid to the current offenses of which the defendant has been convicted. If the number of current offenses, when applied to the sentencing grid, results in the legal conclusion that the defendant's presumptive sentence is identical to that which would be imposed if the defendant had committed fewer current offenses, then an exceptional sentence may be imposed. In sum, in order to impose an exceptional sentence under RCW 9.94A.535(2)(c), the sentencing court does not need to look beyond " 'facts reflected in the jury verdict or admitted by the defendant.' " VanDelft, ¶22 In Hughes, the court noted that case law interpretations of the exceptional sentence provisions of the pre-2005 SRA did not allow for the imposition of an exceptional sentence solely on the basis of criminal history because that criminal history is reflected in the offender score: Under Washington law . . . the court may not consider criminal history per se in issuing exceptional sentences because prior convictions are used to compute presumptive sentences. State v. Nordby, 106 Wn.2d 514, 518 n.4, 723 P.2d 1117 (1986). Therefore, prior convictions alone can never be enough to warrant an exceptional sentence under Washington law—aggravating factors require something more than just prior conviction history. Hughes, 154 Wn.2d at 135. ¶23 However, Hughes addressed RCW 9.94A.535 as it was written prior to its 2005 legislative revision. When the legislature undertook to amend RCW 9.94A.535, it did so with the express intent of satisfying the Sixth Amendment's requirements. ¶24 The legislature amended RCW 9.94A.535(2)(c) to allow a sentencing judge to impose an exceptional sentence solely on the basis of criminal history. It did so with the express intention of satisfying the Sixth Amendment's jury trial guarantee described in Blakely. "Blakely left intact the validity of exceptional sentences based on prior convictions." Hughes, 154 Wn.2d at 134. Imposition of an exceptional sentence based solely on a defendant's criminal history does not violate the Sixth Amendment because a defendant's " 'prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.' " Hughes, 154 Wn.2d at 135 (quoting Jones v. United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). Newlun's convictions for the multiple current offenses for which he was herein sentenced were each individually subject to the right of trial by jury and to the requirement of proof beyond a reasonable doubt. These same convictions, in combination with Newlun's prior convictions, resulted in Newlun's high offender score. These factors, in turn, provided the basis for the superior court's imposition of an exceptional sentence pursuant to RCW 9.94A.535(2)(c). ¶25 Because the fact of Newlun's criminal convictions provided the sole basis for the imposition of Newlun's exceptional sentence, Newlun has failed to meet his burden of showing that the sentencing court's application of RCW 9.94A.535(2)(c) violated the Sixth Amendment. ¶26 Affirmed. BAKER and AGID JJ., concur.