State v. Jackson

538 P.3d 284

STATE of Washington, Respondent,

v.Robert Terrance JACKSON, Appellant.

No. 84547-1-I

Court of Appeals of Washington, Division 1.

Filed November 6, 2023

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Gregory Charles Link, Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Dwyer, J.

¶1 In the Sentencing Reform Act of 1981¹ (SRA), our legislature directed that two or more current offenses and all prior offenses are presumed to be counted separately in calculating an offender score. Only when the sentencing court enters a finding that any such offenses encompass the same criminal conduct may the offenses be counted as a single offense. In addition, our Supreme Court has made clear that the defendant bears the burden to prove that current or prior offenses encompass the same criminal conduct. When the defendant does not attempt to meet this burden, the sentencing court does not err by counting all offenses separately in calculating the offender score. Rather, in so doing, the sentencing court rules in accordance with the presumption established by the SRA.

¶2 Here, Robert Jackson appeals from the exceptional sentence imposed on resentencing. He asserts that the superior court erroneously calculated his offender score because the court did not sua sponte conduct a "same criminal conduct" analysis of his prior offenses. We disagree. Jackson did not assert on resentencing that any of his prior offenses encompassed the same criminal conduct. Thus, in counting separately Jackson's myriad prior offenses, the resentencing court impliedly recognized that he had not met his burden of proving that any such offenses should be counted as one offense. Indeed, by having not attempted to meet his burden, Jackson cannot demonstrate that the resentencing court erred in calculating his offender score by counting his prior offenses separately, thus giving effect to the applicable statutory presumption.

¶3 Jackson additionally asserts that his exceptional sentence must be reversed because, he contends, the aggravating circumstance of rapid recidivism is unconstitutionally vague. He further asserts that the evidence is insufficient to support a finding that he committed the offenses "shortly after being released from incarceration," RCW 9.94A.535(3)(t), and, thus, that the court erroneously imposed an exceptional sentence based on the rapid recidivism aggravator. On both accounts, we disagree.

¶4 Because a person of reasonable understanding would not have to guess that reoffending only three months after release from incarceration—as did Jackson—qualifies as "shortly after" release, the aggravating circumstance is not unconstitutionally vague. Moreover, a rational fact finder could conclude that Jackson committed the current offenses "shortly after" his release. Accordingly, sufficient evidence supports the application of the rapid recidivism aggravator. Having concluded that Jackson's claims of error are without merit, we affirm the exceptional sentence imposed by the resentencing court.

I

¶5 On November 11, 2015, Robert Jackson crashed his vehicle into a large power vault while driving under the influence of alcohol. Lindsay Hill, the passenger in the vehicle, died instantly from "skull fractures and brain avulsion" as a result of the "extremely high speed crash." The vehicle was traveling at nearly 80 miles per hour, significantly higher than the posted 25 mile per hour speed limit, when the collision occurred. Jackson's blood alcohol content was later calculated to have been between .135g/100mL and .22g/100mL. Jackson fled the scene without reporting the collision or seeking medical care for Hill. He evaded police until the next morning, when he "aggressively resisted arrest."

¶6 Following a bench trial, Jackson was convicted of vehicular homicide and felony hit and run. The superior court found that these offenses had occurred "shortly after" Jackson's release from incarceration on August 10, 2015. Accordingly, the court determined that, as to both convictions, the aggravating circumstance of rapid recidivism applied. At the time, Jackson had two prior convictions of "most serious offense[s]," including a conviction of second degree robbery. See former RCW 9.94A.030(33) (2016). Based on these prior convictions, the court determined that Jackson was a persistent offender and sentenced him to life imprisonment without parole.

¶7 In 2019, our legislature removed the offense of second degree robbery from the list of "most serious offense[s]." LAWS OF 2019, ch. 187. The legislature thereafter enacted a statute requiring resentencing when an offender has been sentenced as a persistent offender based on a conviction of second degree robbery. RCW 9.94A.647(1).

¶8 Jackson's resentencing hearing occurred on September 30, 2022. Based on an offender score of 22, Jackson's standard range sentence for the vehicular homicide conviction was a minimum of 210 to a maximum of 280 months of incarceration. His standard range sentence for the hit and run conviction, based on an offender score of 23, was a minimum of 120 to a maximum of 120 months of incarceration.² The State sought an exceptional sentence of 620 months based both on the rapid recidivism finding of the superior court and on Jackson's high offender scores, which, the State argued, would result in the hit and run offense going unpunished if an exceptional sentence was not imposed. See RCW 9.94A.535(3)(t)³ (rapid recidivism aggravating circumstance); RCW 9.94A.535(2)(c)⁴ ("free crimes" aggravating circumstance).

¶9 The resentencing court determined that an exceptional sentence was appropriate and imposed a sentence of 400 months of incarceration—the high end of the standard range for each conviction run consecutively. The resentencing court stated that the trial court's finding of rapid recidivism was the basis for the exceptional sentence. The court then stated that an additional basis for the exceptional sentence was "that in essence there would be no penalty for the hit-and-run were the ... sentences not to run consecutive to each other because otherwise it ... just gets subsumed in the ... vehicular homicide."

¶10 In written findings and conclusions, the resentencing court made findings of both the rapid recidivism and "free crimes" aggravating circumstances. The court found that "unless an exceptional sentence is imposed, some of the current offenses will go unpunished." The court additionally concluded that

[e]ach one of these aggravating circumstances is a substantial and compelling reason, standing alone, that is sufficient justification for the length of the exceptional sentence imposed. In the event that an appellate court affirms at least one of the substantial and compelling reasons, the length of the sentence should remain the same.

Jackson appeals.

II

¶11 Jackson asserts that his exceptional sentence must be reversed because the resentencing court calculated his offender score without conducting a "same criminal conduct" analysis of his prior convictions. We disagree. It is presumed in calculating an offender score that two or more current and all prior offenses are separately counted. Jackson, as the party who would benefit from a finding that his prior offenses encompass the same criminal conduct, has the burden of establishing the facts necessary to support such a finding. Because he did not attempt to meet that burden, Jackson cannot demonstrate error by the resentencing court in counting separately his myriad prior convictions. Indeed, in calculating Jackson's offender score, the resentencing court both ruled consistent with and gave effect to the presumption set forth in the SRA.

¶12 In nevertheless asserting that RCW 9.94A.525(5)(a)(i) requires a sentencing court to sua sponte perform a "same criminal conduct" analysis of prior offenses before calculating an offender score, Jackson misapprehends the pertinent sentencing scheme. Moreover, the decisional authority on which Jackson relies does not compel the interpretation of the statutory language that he seeks. The resentencing court did not err by ruling in accordance with the presumption that prior offenses are counted separately in calculating an offender score.

A

¶13 We will reverse an exceptional sentence only upon determining "[e]ither that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense" or "that the sentence imposed was clearly excessive or clearly too lenient." RCW 9.94A.585(4). Interpretation of the SRA, chapter 9.94A RCW, is a question of law that we review de novo. State v. Jones, 172 Wash.2d 236, 242, 257 P.3d 616 (2011). "Only an illegal or erroneous sentence is reviewable for the first time on appeal." State v. Nitsch, 100 Wash. App. 512, 523, 997 P.2d 1000 (2000).

¶14 A sentencing court must determine the standard range sentence by calculating an offender score in accordance with the SRA. RCW 9.94A.525 ; see RCW 9.94A.510, .530. Our legislature has directed that "whenever a person is to be sentenced for two or more current offenses, 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." RCW 9.94A.589(1)(a). Current offenses may be counted as one crime only "if the court enters a finding that some or all of the current offenses encompass the same criminal conduct." RCW 9.94A.589(1)(a). Thus, extant in the sentencing scheme of the SRA is a presumption that two or more current offenses and all prior offenses are counted separately in calculating an offender score. In re Pers. Restraint of Markel, 154 Wash.2d...