In re the Personal Restraint of Hall

¶1 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 348 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/Blakely1 Sixth Amendment rights. Based on our understanding that the federal constitution prohibited harmless error analysis of Blakely violations,2 we did not consider whether, in Hall’s case, the failure to obtain a jury finding on the aggravating circumstances was harmless. Fairhurst, J. 348 ¶ 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, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (hereinafter Recuenco II). The Court then granted certiorari in Washington v. Hall, 548 U.S. 923, 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. 349 I. FACTUAL AND PROCEDURAL HISTORY ¶ 4 On January 1, 1996, Hall and Rim 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.3 State v. Hall, noted at 96 Wn. App. 1051, 1999 WL 527739, at *2, 1999 Wash. App. LEXIS 1364. Following two direct appeals that resulted in resentencing hearings, Hall was sentenced to an exceptional sentence of 366 months, based on the sentencing court’s finding of two aggravating circumstances — deliberate cruelty and multiple injuries. The court explicitly stated the exceptional sentence could be sustained based on either one of the aggravating circumstances. Hall’s sentence was affirmed on appeal. State v. 350 Hall, noted at 118 Wn. App. 1041, 2003 WL 22137294, 2003 Wash. App. LEXIS 2876. ¶ 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, 2005). f 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. 548 U.S. at 222. 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. 548 U.S. 923. II. ISSUE ¶ 9 Was imposition of the exceptional sentence in this case, based on aggravating circumstances found by the trial court rather than the jury, harmless error?4 351 III. ANALYSIS ¶ 10 In order to obtain relief in this PRP, Hall must show by a preponderance of the evidence that he was actually and substantially prejudiced by a violation of his constitutional rights. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). “Washington courts have consistently applied this standard even where ... a subsequent change in the law has held a particular jury instruction to be unconstitutional and the error impacts the trial’s truth-finding function.” In re Pers. Restraint of Sims, 118 Wn. App. 471, 477, 73 P.3d 398 (2003) (citing In re Pers. Restraint of Haverty, 101 Wn.2d 498, 503-04, 681 P.2d 835 (1984)). ¶ 11 It is undisputed that imposing an exceptional sentence based on aggravating circumstances found by the trial court, rather than the jury, violated Hall’s Sixth and Fourteenth Amendment jury trial rights as defined by Apprendi and Blakely. Under federal law, “[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury,” is subject to harmless error analysis. Recuenco II, 548 U.S. at 222. ¶ 12 On remand, we consider whether the failure to submit a sentencing factor to the jury could be a harmless error in this case.5 Hall argues that “[i]t would have violated state law to submit aggravating [circumstances] to the jury to be determined beyond a reasonable doubt at the time of [his] trial” and that therefore the error in this case cannot be harmless. Suppl. Br. of Pet’r at 18. We agree. f 13 The exceptional sentencing provisions in effect when Hall committed his offense directed that the trial court find 352 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.6 ¶ 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 directed] 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.’ ”7 State v. Womac, 353 160 Wn.2d 643, 662-63, 160 P.3d 40 (2007) (alterations in original) (quoting State v. Hughes, 154 Wn.2d 118, 149, 110 P.3d 192 (2005), overruled in part by Recuenco II, 548 U.S. 212). ¶ 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.8 See, e.g., RCW 69.50.435(1) (silent as to who, court or jury, makes the finding that a controlled substance violation occurred in a public place that doubles maximum sentence); RCW 26.50.110(5) (silent as to who, court or jury, makes finding that previous convictions are present that elevate violation of a protection order to a felony). As we stated in Hughes, “[t]his situation is distinct from those where a statute merely is silent or ambiguous on an issue and the court takes the opportunity to imply a necessary procedure.” 154 Wn.2d at 151, ¶ 69. ¶ 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. 354 Former RCW 9.94A.370 (1989), recodified as 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, 548 U.S. at 218 (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. 355 IV. CONCLUSION f 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. Footnotes [1] In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme 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.” 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] We articulated that understanding in State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled in part by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). [3] The jury also returned a special verdict finding that Hall committed the assault while armed with a deadly weapon, based on Krapf’s statement to police that Hall had “beat her with a rifle, as well as [with] his hands and feet, and that he threatened her and Aaron with a pistol.” State v. Hall, noted at 96 Wn. App. 1051, 1999 WL 527739, at *1,1999 Wash. App. LEXIS 1364. Hall’s deadly weapon sentence enhancement was stricken on Hall’s first appeal. Id. at *6. [4] Following remand, this court ordered supplemental briefing on the issue presented above. In re Pers. Restraint of Hall, No. 75800-0, Order (Wash. Sup. Ct. Oct. 17, 2006). Hall included several additional issues in his supplemental briefing. “[TJhis court will not address an argument ‘raised for the first time in a supplemental brief and not made originally by the petitioner or respondent within the petition for review or the response to petition.’ ” Sorenson v. Pyeatt, 158 Wn.2d 523, 543, 146 P.3d 1172 (2006) (quoting Cummins v. Lewis County, 156 Wn.2d 844, 851, 133 P.3d 458 (2006)); RAP 13.7(b). Consistent with this rule, we decline to address those of Hall’s issues that are not properly before us. [5] “We leave for another day the more general question of whether, under Washington law, failure to submit a sentencing factor to the jury (and by extension failure to obtain a jury finding on aggravating circumstances) is subject to harmless error analysis.” State v. Womac, 160 Wn.2d 643, 663 n.13, 160 P.3d 40 (2007). We need not resolve the issue of whether harmless error analysis applies in these circumstances because “we are convinced the error here was not harmless beyond a reasonable doubt.” Id. [6] This case does not present, and we do not decide, the effect of a procedural inability to obtain a constitutionally valid jury finding when a defendant expressly waived his or her ApprendilBlakely Sixth Amendment rights, either by “stipulating] to the relevant facts or consenting] to judicial factfinding.” Blakely, 542 U.S. at 310. [7] In State v. Pillatos we confirmed that the recently enacted sentencing provisions, creating a procedure whereby facts supporting aggravating circumstances are proved to a jury beyond a reasonable doubt, Laws of 2005, chapter 68, apply only to "pending criminal matters where trials have not begun or pleas [have] not yet [been] accepted.” 159 Wn.2d 459, 470, ¶ 14, 150 P.3d 1130 (2007). Thus these provisions are irrelevant to our analysis of Hall’s case. [8] The State also relies on two decisions from this court that are not analogous to the situation presented here — the explicit assignment of findings to the trial court. Both decisions address the validity of to-convict instructions in which one element is segregated into a special verdict form. See State v. Oster, 147 Wn.2d 141, 52 P.3d 26 (2002) (permitting use of special verdict form in felony violation of a domestic violence no-contact order in order for the jury to find that the defendant had two or more prior convictions); State v. Mills, 154 Wn.2d 1, 109 P.3d 415 (2005) (allowing special verdicts for elements that elevate a base crime from a misdemeanor to a felony).