State v. Anderson

552 P.3d 803

STATE of Washington, Respondent,

v.Nicholas Windsor ANDERSON, Appellant.

No. 84550-1-I

Court of Appeals of Washington, Division 1.

Filed July 22, 2024

Honorable Andrea Darvas, Judge.

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Ian Ith, King County Prosecuting Attorney’s Office, 516 3rd Ave., Seattle, WA, 98104-2385, for Respondent.

PUBLISHED OPINION

Coburn, J.

¶1 Nicholas Windsor Anderson was convicted of vehicular homicide and the trial court imposed a two-year sentence enhancement based on a judge’s determination that Anderson’s previous reckless driving conviction was amended from a charge of driving under the influence (DUI). On his first appeal, this court found that the enhancement required a jury finding and remanded to the trial court to empanel a jury for fact-finding on that issue. State v. Anderson, 9 Wash. App. 2d 430, 447 P.3d 176 (2019) (Anderson I). Following the State’s appeal of that decision, the Supreme Court demanded back to this court, which again ordered the trial court to empanel a jury for fact-finding on the sentence enhancement alone. State v. Anderson, No. 76672-4-1, slip op. at *3-4, 466 P.3d 780 (Wash. Ct. App. June 8, 2020) (unpublished) (Anderson II), https://www.courts.wa.gov/opinions/pdf/766724.pdf.

¶2 After Anderson waived jury on remand, the trial court held a bench trial and issued the same sentence as the one imposed at Anderson’s original trial. This second appeal followed. Both Anderson and the State argue on appeal, though on different bases, that the Anderson II court should never have remanded for jury fact-finding to support a sentence enhancement. Both parties are correct in that the trial court had no statutory authority to empanel a fact-finding jury for resentencing under RCW 9.94A.533(7) and that a judge can determine whether a prior conviction for Reckless Driving was procedurally amended from a charge of Driving Under the Influence (DUI) because that is not an inquiry as to the facts underlying the charge. But, this is not an appeal of Anderson II and in the end, a judge, not a jury, properly decided the question on remand. Anderson also challenges the sufficiency of the State's evidence that established Anderson had the prior conviction; and imposition of a Victim Penalty Assessment (VPA) and restitution interest. We remand to strike the VPA and reconsider restitution interest, but otherwise affirm.

FACTS

¶3 This is the second appeal following Anderson’s conviction for four counts of vehicular homicide and one count each of vehicular assault and reckless driving following a jury trial in 2017. The background facts are set forth in the first appeal, Anderson I, 9 Wash. App. 2d 430, 447 P.3d 176, and will be repeated here only as necessary. Anderson drove intoxicated, causing an accident resulting in the deaths of four passengers and serious lasting injuries to a fifth. Id. at 436-37, 447 P.3d 176.

The sentencing court imposed concurrent sentences of 280 months for each of the four vehicular homicide convictions. It also imposed two 24-month enhancements to run consecutively to each of the vehicular homicide convictions and to each other (192 months total) because Anderson had two prior convictions for driving under the influence (DUI) and reckless driving. And it imposed 120 months for the vehicular assault conviction and 364 days for the reckless driving conviction to run consecutively to the vehicular homicide convictions and the enhancements. The court sentenced Anderson to a total of 592 months in prison and 364 days in jail. It waived all nonmandatory legal financial obligations (LFOs) and imposed a $100 DNA fee.

Id. at 437-38, 447 P.3d 176. The court also ordered Anderson to pay $97,996.48 in restitution and imposed interest under RCW 10.82.090. At sentencing, the court enhanced the term of imprisonment for vehicular homicide under RCW 9.94A.533(7) because the court determined Anderson had a prior reckless driving conviction that was originally charged as a DUI as defined by RCW 46.61.5055.

¶4 Anderson appealed to this court arguing that the trial court violated his Sixth Amendment right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) in imposing a sentence enhancement without special jury findings supporting it. Anderson I, 9 Wash. App. 2d at 447, 447 P.3d 176. This court agreed with Anderson. Id. at 447-48, 447 P.3d 176. The Anderson I court ordered remand for the superior court to strike the DNA fee and to empanel a jury to decide whether Anderson’s prior reckless driving conviction qualifies as a "prior offense" for purposes of enhancing his term of imprisonment for vehicular homicide. Id. at 462, 447 P.3d 176. A majority of the court, in a concurrence, also held that the State had to prove to a jury that drugs or alcohol were involved in the prior offense in order to satisfy due process. Id. at 463, 447 P.3d 176 (dissenting opinion of Chun, J.).

¶5 The State petitioned for review. The Washington State Supreme Court granted discretionary review but remanded to this court for reconsideration in light of State v. Wu, 194 Wash.2d 880, 453 P.3d 975 (2019), which was decided after this court published Anderson I. The Supreme Court in Wu held, regarding a conviction for felony DUI based on prior offenses, that (1) because the prior conviction raised the level of crime from a misdemeanor to a felony based on the defendant’s prior criminal conviction, it is an element that must be proved to the jury beyond a reasonable doubt; and (2) the involvement of alcohol or drugs in the prior conviction was not an essential element, Wu, 194 Washed at 889-90, 453 P.3d 975.

¶6 On remand, this court reversed the part of Anderson I that required a jury on remand to find the reckless driving conviction involved alcohol or drugs and again remanded to the superior court to empanel a Jury to strike the DNA fee and decide whether Anderson’s prior reckless driving conviction qualifies as a "prior offense" for enhancement purposes. State v. Anderson (Anderson II), No. 76672-4-1, slip op. at 3, 466 P.3d 780 (Wash. Ct. June 8, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/ 766724.pdf.

¶7 The State moved for this court to reconsider, arguing that the fact of the prior conviction was a "recidivist fact" that fell under an exception to Apprendi and did not require a jury finding before a sentence enhancement could be imposed. Anderson opposed the motion, advocating instead for this court to maintain its holding and remand the case to superior court for trial solely on the ques- tions of fact underlying the sentence enhancement. This court denied the State’s motion. The State then petitioned for review by the Washington Supreme Court on the same grounds. The supreme court denied the petition.

¶8 On remand from Anderson II, the parties returned to superior court for trial on the sole question of whether Anderson had a prior reckless driving conviction that was amended from DUI. Anderson waived his right to a jury trial and a bench trial proceeded before a judge that was not the same judge who presided over the original trial. The State presented no witnesses and admitted four certified copies of documents containing information regarding a 2005 conviction of "Nicholas Anderson"¹ for reckless driving, as amended from the original charge of DUI. The trial court found that "yes, [Anderson] was originally charged under this cause number with driving under the influence and ultimately was convicted on the amended charge of reckless driving."

¶9 The court issued a "confirmation of judgment and sentence post-remand" maintaining the original sentence imposed other than the imposition of the DNA fee.

¶10 Anderson appeals.

DISCUSSION

Review

¶11 Both the State and Anderson argue, for different reasons, that it was improper for this court to remand to the trial court to empanel a jury to determine if Anderson had a prior reckless driving conviction that was amended from a DUI. Anderson argues that the trial court had no statutory authority to empanel a jury and hold a new trial on the issue of whether his prior reckless driving conviction had been originally charged as a DUI. The State argues that the issue is in the province of the trial court and did not require a jury finding because it is a fact pertaining to a prior conviction.

[1–3] ¶12 The State argues that because Anderson raises the issue of the lack of legislative authority for the first time on appeal that issue is waived. Generally, we will not consider issues raised for the first time on appeal. RAP 2.5(a). Parties are permitted to raise issues for the first time on appeal under certain exceptions to this rule where the claimed error is (1) lack of trial court jurisdiction; (2) failure to establish facts upon which relief can be granted; or (3) manifest error affecting a constitutional right. RAP 2.5(a). A party demonstrates manifest constitutional error by showing that the issue before this court affects that party’s constitutional rights and that he suffered actual prejudice. State v. Guevara Diaz, 11 Wash. App. 2d 843, 851, 456 P.3d 869 (2020) (citing State v. Walsh, 143 Wash.2d 1, 8, 17 P.3d 591 (2001)). To show actual prejudice, the party must make a "‘plausible showing … that the asserted error had practical and identifiable consequences in the trial of the case.’ " Id. (quoting State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999)).

[4, 5] ¶13 Anderson does not attempt to argue how an exception to RAP 2.5(a) applies. The trial court’s ability to empanel a...