[No. 75800-0. En Banc.]
Argued March 13, 2007. Decided April 3, 2008.
In the Matter of the Personal Restraint of RONALD A. HALL, Petitioner.
[1] Appeal — Review — Issues First Raised in Supplemental Brief — In General. An appellate court may decline to consider issues or arguments raised for the first time in a supplemental brief and not made originally by the petitioner or respondent in the petition for review or response to the petition.
[2] Personal Restraint — Scope — Constitutional Error — Prejudice — Burden and Degree of Proof. A personal restraint petitioner seeking relief must show actual and substantial prejudice arising from a violation of his or her constitutional rights by a preponderance of the evidence.
[3] Criminal Law — Punishment — Sentence — Outside Standard Range — Aggravating Circumstances — Determination — By Court — Harmless Error — Federal Law. Under federal law, a violation of a criminal defendant's Sixth Amendment right to have a jury determine the facts supporting a sentence above the standard sentencing range is subject to harmless error analysis.
[4] Criminal Law — Punishment — Sentence — Outside Standard Range — Aggravating Circumstances — Determination — By Court — Harmless Error — Sentencing Laws — Effect. A violation of a criminal defendant's Sixth Amendment right to have a jury determine the facts supporting a sentence above the standard sentencing range cannot be harmless error if, under the sentencing laws applicable to the defendant's prosecution, the trial court was empowered to find the sentencing facts by a preponderance of the evidence and no procedure existed for empaneling a jury to find the facts under the reasonable doubt standard.
J.M. JOHNSON, J., dissents by separate opinion; STEPHENS, J., did not participate in the disposition of this case.
Nature of Action: A convicted offender who was sentenced above the standard sentencing range based on aggravating factors as found by the trial court sought relief from personal restraint on a claim that he had a Sixth Amendment right to have a jury determine the aggravating factors. The Supreme Court on August 24, 2004 entered an order granting the petition without considering whether the error was harmless. The United States Supreme Court, at ___ U.S. ___, 126 S. Ct. 2979, 165 L. Ed. 2d 984 (2006), vacated the grant of the petition and remanded the case based on its holding in Washington v. Recuenco, 548 U.S. 212 (2006), that, under federal law, failure to submit a sentencing factor to the jury in violation of the Sixth Amendment is subject to harmless error analysis.
Supreme Court: On remand, the court grants the petition and remands the case for resentencing within the standard sentencing range, holding that the error in failing to submit the question of aggravating factors to the jury in the petitioner's case could not be harmless because, under the sentencing statutes applicable to the petitioner's prosecution, no procedure existed whereby a jury could have been empaneled to find the aggravating factors.
Rita J. Griffith-; and Jeffrey E. Ellis- (of Ellis Holmes & Witchley, PLLC), for petitioner.
Gerald A. Horne-, Prosecuting Attorney, and John M. Sheeran-, Deputy, for respondent.
Sheryl G. McCloud- and James E. Lobsenz- on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
EN BANC
¶1 FAIRHURST, J. — Ronald A. Hall was convicted of assault in the first degree. The sentencing court imposed an exceptional sentence of 366 months, based on its own factual findings that the aggravating circumstances of deliberate cruelty and multiple injuries were present. This court granted Hall's personal restraint petition (PRP) because imposition of the exceptional sentence violated Hall's Apprendi/Blakely In Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court clarified that "the '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." ¶2 The United States Supreme Court subsequently explained that under federal law the failure to submit a sentencing factor to the jury is subject to harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 2553, 165 L. Ed. 2d 466 (2006) (hereinafter Recuenco II). The Court then granted certiorari in Washington v. Hall, ___ U.S. ___, 126 S. Ct. 2979, 165 L. Ed. 2d 984 (2006), vacated our judgment, and remanded the matter to us for further consideration. ¶3 On remand, we hold that regardless of whether harmless error analysis applies to the failure to submit a sentencing factor to a jury under Washington law, the error in this case was not harmless because under the exceptional sentencing provisions applicable to Hall, no procedure existed whereby the jury could have been asked to find the aggravating circumstances. I. FACTUAL AND PROCEDURAL HISTORY ¶4 On January 1, 1996, Hall and Kim Krapf spent the evening at their trailer home with Robert Aaron and April Duckett. After asking Duckett to leave, Krapf started an argument with Hall. Hall responded violently, punching Krapf repeatedly in the face with his fists and, after Krapf fell to the floor, kicking her repeatedly in the face, ribs, back, and buttocks. When Hall told Aaron to get a shovel because Hall was going to bury Krapf, Aaron left and did not return. By the time Hall stopped beating Krapf, she could not see because her eyes were swollen shut. Duckett later returned to the trailer and, after spending 15 to 20 minutes with Hall, took Krapf to the hospital. ¶5 Medical examination revealed that Krapf's upper jaw was broken in three places, both eye sockets were fractured, her cheekbone and nose were broken, and she had cracked ribs and a punctured lung. Krapf's facial injuries required extensive reconstructive surgery and resulted in permanent changes in her eyes, vision, and jaw, as well as scarring. ¶6 A jury convicted Hall of first degree assault. ¶7 In August 2004, Hall filed this PRP in this court, alleging that he had been actually prejudiced by a Blakely Sixth Amendment violation through the entry of an exceptional sentence based on aggravating circumstances found by a judge, rather than a jury. We granted Hall's PRP and remanded the matter for resentencing, consistent with our understanding that under federal law Blakely Sixth Amendment violations could not be subject to harmless error analysis. In re Pers. Restraint of Hall, No. 75800-0, Order Terminating Review (Wash. Sup. Ct. Aug. 24, 2004). ¶8 The Pierce County Prosecuting Attorney's Office petitioned the United States Supreme Court for writ of certiorari. "During the pendency of [the State's] petition . . . the trial court sentenced Mr. Hall to a term within the standard range," consistent with our order. Suppl. Br. of Pet'r at 5. On June 30, 2006, the United States Supreme Court decided Recuenco II, holding that the failure to submit a sentencing factor to a jury is subject to harmless error analysis. 126 S. Ct. at 2553. In light of Recuenco II, the Court granted certiorari in Washington v. Hall, vacated our judgment, and remanded the matter to us for further consideration. 126 S. Ct. at 2979. II. ISSUE III. ANALYSIS ¶13 The exceptional sentencing provisions in effect when Hall committed his offense directed that the trial court find aggravating circumstances by a preponderance of the evidence. The legislature's explicit assignment of the finding to the trial court precluded assigning the finding to the jury. Its designation of the standard of proof as a preponderance precluded requiring proof beyond a reasonable doubt. Since it would have been procedurally impossible to obtain a constitutionally valid jury finding, the error in this case cannot be deemed harmless. ¶14 The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, provided an illustrative list of mitigating and aggravating circumstances, "which the court may consider in the exercise of its discretion to impose an exceptional sentence." Former RCW 9.94A.390 (1995), recodified and amended as RCW 9.94A.535. The SRA further provided: (2) The court may impose a sentence outside the standard sentence range for that offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence. (3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. Former RCW 9.94A.120 (1995), recodified and amended as RCW 9.94A.535 (emphasis added). As we have explained, this language " 'explicitly direct[ed] the trial court to make the necessary factual findings' to support an exceptional sentence 'and d[id] not include any provision allowing a jury to make those determinations during trial, during a separate sentencing phase, or on remand.' " ¶15 The State's assertion that Washington trial practice allows the court to give a special verdict to the jury "with or without statutory authority" fails to address the situation presented here in which the statutes explicitly direct that the trial court itself make the factual finding. Suppl. Br. of Resp't at 19. Moreover, the State attempts to support its assertion with statutes that are merely silent on whether the jury or the court shall make the requisite finding. ¶16 Furthermore, the exceptional sentencing provisions applicable to Hall provided: (2) In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. . . . Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence. Former RCW 9.94A.370 (1989), recodified at RCW 9.94A.530(2) (emphasis added). Through this provision, the legislature established the standard of proof to be a preponderance of the evidence for any disputed facts material to sentencing. Given that facts supporting aggravating circumstances are undoubtedly material to sentencing, this provision raises a second procedural impediment to obtaining a constitutionally valid jury finding. ¶17 In Recuenco II, the United States Supreme Court acknowledged that the lack of a procedural mechanism for obtaining a jury finding would demonstrate that the associated error was not harmless. "If . . . Washington law does not provide for a procedure by which [the] jury could have made a finding pertaining to [the sentencing factor], that merely suggests that respondent will be able to demonstrate that the Blakely violation in [the] particular case was not harmless." Recuenco II, 126 S. Ct. at 2550 (most emphasis added). ¶18 The State argues to no avail that the Court's concern was sufficiency of the evidence. The State understands the Court to have meant that if because there was no procedure in place the State presented no evidence of the [sentencing factor], then in that particular case the court cannot conclude the error is harmless. However, if the evidence was presented, but the jury was just never given an opportunity to make a finding on this evidence, then the court may conclude the error was harmless beyond a reasonable doubt. Suppl. Br. of Resp't at 18-19. However, the State's explanation ignores that the express focus of the Court's observation is the very existence of a valid procedure through which a jury could be given an opportunity to make a finding. Where the legislature has directed that the court, not the jury, will make a finding, and has established that the standard of proof shall be a preponderance of the evidence, rather than beyond a reasonable doubt, the quantum of evidence introduced to support the finding is immaterial—the error cannot be harmless. IV. CONCLUSION ¶19 The exceptional sentencing provisions in force at the time of Hall's offense explicitly assigned the trial court to find aggravating circumstances by a preponderance of the evidence. As a result, it was procedurally impossible for the jury to have made a beyond a reasonable doubt finding on the aggravating circumstances in Hall's case. Therefore, we hold that the error in Hall's case cannot be harmless. We remand to the trial court for it to ensure that the record reflects that Hall was properly sentenced to a term within the standard sentencing range. ALEXANDER, C.J.; C. JOHNSON, MADSEN, SANDERS, CHAMBERS, and OWENS, JJ.; and BRIDGE, J. PRO TEM., concur. ¶20 J.M. JOHNSON, J. (dissenting) — Ronald Hall was sentenced to 30 years in prison for his vicious assault on Ms. Kim Krapf more than 10 years ago. Today, a majority of this court decides, in essence, that Hall should be set free after serving only 11 years for this crime. FACTS AND PROCEDURAL HISTORY ¶21 On January 1, 1996, Hall savagely beat Krapf using his fists and feet, as well as a weapon. State v. Hall (Hall I), noted at 96 Wn. App. 1051, 1999 Wash. App. LEXIS 1364, at *2 (unpublished). Hall hit and kicked Krapf and threw her to the floor, after which he repeatedly kicked her in the face, ribs, back, and buttocks. Id. at *2. At one point, Hall ordered a witness "to get a shovel so he could bury Krapf." Id. Later, Hall ordered Krapf to take a shower, which she was unable to do because both of her eyes were swollen shut. Id. Hall finally permitted another witness to take Krapf to get medical treatment. Id. at *2-3. ¶22 A medical examination conducted at a nearby emergency room revealed the severity of Ms. Krapf's injuries: "Krapf's upper jaw was broken in three places and . . . both eye sockets were fractured. Krapf also had a punctured lung, a broken nose, a broken cheek bone, and broken ribs. Further injuries included bruising and lacerations along her neck and down her back to the base of her spine." Id. at *3. ¶23 As a result of his attack on Krapf, Hall was convicted by a jury of assault in the first degree while armed with a deadly weapon. Id. at *1. The trial court imposed an exceptional sentence of 366 months plus 24 months on the deadly weapon enhancement. Id. at *5. The trial court based its exceptional sentence on three aggravating factors: (1) deliberate cruelty, (2) multiple injuries, and (3) severity of the injuries. Id. The Court of Appeals affirmed Hall's conviction but vacated his sentence based on an erroneously imposed deadly weapon enhancement and a miscalculated offender score, and remanded for resentencing. State v. Hall (Hall II), noted at 111 Wn. App. 1041, 2002 Wash. App. LEXIS 1063, at *2 (unpublished). At resentencing, the trial court imposed an exceptional sentence of 366 months based on two aggravating factors: deliberate cruelty and multiple injuries. Id. at *3. Again, the Court of Appeals vacated Hall's sentence and remanded due to an error in the calculation of Hall's offender score. Id. at *10. At resentencing, the trial court imposed the same exceptional sentence of 366 months based on the same two aggravating factors. State v. Hall (Hall III), noted at 118 Wn. App. 1041, 2003 Wash. App. LEXIS 2076, at *4 (unpublished). The court stated in its findings that it " 'would impose the same sentence if only one of the[se] . . . aggravating circumstances existed.' " Id. at *5-6 (quoting Clerk's Papers at 27-28). This sentence was affirmed on appeal. Id. at *13. ¶24 Hall next filed three unsuccessful PRPs. In re Pers. Restraint of Hall, No. 27794-8-II, Order Dismissing Pet. (Wash. Ct. App. Feb. 14, 2002); In re Pers. Restraint of Hall, No. 30871-1-II, Order Dismissing Pet. (Wash. Ct. App. Jan. 23, 2004); In re Pers. Restraint of Hall, No. 28197-0-II, Order Dismissing Pet. (Wash. Ct. App. Mar. 26, 2004). Thus, the present petition constitutes Hall's fourth collateral attack, and seventh overall attack, on his assault conviction. ¶25 The first time the present petition came before this court, we agreed with Hall that his Sixth Amendment rights had been violated, vacated his sentence, and remanded for resentencing within the standard range. In re Pers. Restraint of Hall, No. 75800-0, Order Terminating Review (Wash. Sup. Ct. Aug. 24, 2005). This court's decision to remand was specifically based on the conclusion that Blakely ANALYSIS A. Under Federal Law, the Trial Court's Error May Be Deemed Harmless ¶26 In accordance with the instructions of the Supreme Court, I would apply the federal harmless error analysis set forth in Recuenco to the trial court's error in the present case. In light of the trial court's finding that either the deliberate cruelty or multiple injuries factor alone supports Hall's exceptional sentence, I limit my analysis to one of these factors: multiple injuries. ¶27 In Recuenco, 126 S. Ct. at 2553, the Supreme Court made clear that failure to submit a sentencing factor to the jury is subject to harmless error analysis. The Court indicated that, for purposes of harmless error analysis, failure to submit a sentencing factor to the jury is to be treated analogously to omission of an element from the jury's instructions. Id. at 2551-53. The Court repeatedly cited to its decision in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), as the authoritative decision on harmless error analysis of the omission of an element from the jury's instructions. Recuenco, 126 S. Ct. at 2551-53. ¶28 In Neder, the test applied by the Court was "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " 527 U.S. at 15 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). The Court elaborated that "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." 527 U.S. at 17. This court has summarized the Neder approach as follows: "When applied to an element omitted from, or misstated in, a jury instruction, the error is harmless if that element is supported by uncontroverted evidence." State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (citing Neder, 527 U.S. at 18). Accordingly, the proper inquiry in the present case is whether the aggravating factor of multiple injuries is supported by uncontroverted evidence. ¶29 The uncontroverted evidence introduced at trial established the following facts related to the aggravating factor of multiple injuries: that, as a result of Hall's repeated blows, Krapf suffered from (1) substantial bruising to her back, (2) a broken jaw, (3) fractured eye sockets, (4) a broken cheekbone, (5) a broken nose, (6) cracked ribs, (7) a punctured lung, and (8) bruising and lacerations along her neck and back. Hall I, 1999 Wash. App. LEXIS 1364, at *3. In light of this evidence, I would easily conclude, beyond a reasonable doubt, that had the jury been given the opportunity, it would have found that Hall inflicted multiple injuries on Krapf. See State v. Dunaway, 109 Wn.2d 207, 219, 743 P.2d 1237, 749 P.2d 160 (1988) (upholding use of multiple injuries aggravator based on victim having been shot twice); State v. Armstrong, 106 Wn.2d 547, 549-50, 723 P.2d 1111 (1986) (upholding use of multiple injuries aggravator based on victim having been injured twice). Accordingly, the trial court's error in failing to submit the aggravating factor to the jury should be deemed harmless. B. The Majority Errs in Finding the Trial Court's Error Cannot Be Harmless under State Law ¶30 The majority holds that the trial court's error cannot be deemed harmless under state law. Majority at 3-49. Specifically, the majority concludes that Washington law did not provide a procedure for a jury to make factual findings as to aggravated factors at the time of Hall's trial and, thus, it is impossible to conduct a valid harmless error analysis in his case. Id. at 6-52. I disagree with the majority's conclusion. ¶31 Washington law did provide trial courts with authority to submit aggravating factors to juries at the time of Hall's trial. Specifically, this authority arose from RCW 2.28.150 and CrR 6.16(b). RCW 2.28.150 provides that "if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws." CrR 6.16(b) provides that "[t]he court may submit to the jury forms for special findings which may be required or authorized by law." All three divisions of the Court of Appeals have concluded that, under this statute and rule, trial courts had authority, prior to the 2005 amendments to the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, to submit aggravating factors to juries in order to comply with the constitutional mandate of Blakely. See State v. Doyle, noted at 135 Wn. App. 1030, 2006 Wash. App. LEXIS 2399, at *24 (unpublished); State v. Bell, noted at 135 Wn. App. 1006, 2006 Wash. App. LEXIS 2153, at *10 (unpublished per curiam); State v. Davis, 133 Wn. App. 415, 428, 138 P.3d 132 (2006), review granted, 159 Wn.2d 1019, 157 P.3d 404 (2007). I agree with these decisions. ¶32 Further, I reject the majority's conclusion that the version of the SRA in effect at the time of Hall's trial mandated all exceptional sentences be imposed by the trial court, to the exclusion of the jury. Majority at 7-53. Former RCW 9.94A.120 (1995) merely required the trial court to make written findings if it exercised its authority to impose a sentence outside the standard range. It did not explicitly provide that the trial court, and only the trial court, was permitted to impose such a sentence in all circumstances. To the extent that this court's decisions in State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007), and Hughes, 154 Wn.2d 118, might suggest a contrary interpretation of the former SRA, I believe those cases were wrongly decided. The authority of this State's trial courts to employ an alternative exceptional sentencing procedure, under the plain meaning of RCW 2.28.150 and CrR 6.16(b), was a viable and appropriate option after the Blakely decision. ¶33 In sum, I would conclude that the jury in Hall's case could have made the necessary findings; thus, the error in his case can be deemed harmless. Moreover, in light of the overwhelming and uncontroverted evidence as to the multiple injuries inflicted by Hall on Krapf, I would hold that under Washington law, as under federal law, the trial court's failure to submit the multiple injuries aggravating factor to the jury was harmless. CONCLUSION ¶34 Hall committed a heinous crime, causing great multiple injuries for which our law prescribes especially substantial punishment. Though the trial court erred in failing to submit the aggravating factors supporting Hall's exceptional sentence to the jury, this error does not require Hall's sentence be vacated. Rather, his sentence should be upheld in light of the fact that the trial court's error was harmless given the severe and multiple injuries. Because the majority holds otherwise, I dissent.