State v. Jones

107 P.3d 755

126 Wn. App. 136

126 Wash. App. 136

STATE of Washington, Respondent, v. Darrell Gregory JONES, Appellant.

State of Washington, Respondent, v. Reginald Thomas, Appellant.

Nos. 53322-3-I, 53875-6-I.

Court of Appeals of Washington, Division 1.

February 28, 2005.

Jason Brett Saunders, Washington Appellate Project, Seattle, WA, for Appellant Darrell Gregory Jones.

Maureen Marie Cyr, Corey Marika Endo, Seattle, WA, for Appellant Reginald Thomas.

Amy R. Holt, Seattle, WA, for Respondent.

PUBLISHED IN PART

COX, C.J.

¶ 1 "Other 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."¹ Whether one convicted of a crime was on community placement at the time of the offense is a fact that does not fall within the narrow exception of a "prior conviction" for purposes of Blakely v. Washington.² Because the offender scores of Darrell Jones and Reginald Thomas were improperly based on judicial findings of fact that they were on community placement at the time of their current offenses, we reverse the sentences in these consolidated appeals.³

¶ 2 Jones was convicted of possession of cocaine discovered during a search incident to his arrest for obstructing a law enforcement officer. He had set off a municipal court's metal detector when he tried to enter the building. He then refused to cooperate with the courthouse guard's attempt to clear him. Following his conviction, the State calculated Jones' offender score as 7. This score included one point based on the State's contention that Jones was on community placement at the time of the offense. At sentencing, Jones expressly challenged the additional point. Relying on records from the Department of Corrections, the sentencing judge found that Jones had been on community placement at the time of his crime. The judge sentenced Jones to an alternative drug offender sentence of 12.75 months of confinement to be followed by 12.75 months of community custody.

¶ 3 Thomas was convicted of second degree assault for kicking a man in the head. The sentencing judge accepted the State's contention that Thomas' offender score was 8, a score that included one point based on the assertion that he was on community placement at the time of his offense. Unlike Jones, Thomas did not contest the finding. The judge sentenced Thomas to 60 months of confinement to be followed by 18 to 36 months of community custody.

¶ 4 Jones and Thomas appealed their sentences, each contending that the judicial finding that he was on community placement violated Blakely. We consolidated the cases.

COMMUNITY PLACEMENT AND PRIOR CONVICTIONS

¶ 5 Jones and Thomas both argue that a jury, not a judge, must make the factual determination beyond a reasonable doubt whether they were on community placement at the time of their crimes. Specifically, they contend that this is a factual determination that is not within the narrow "prior conviction" exception set forth in Blakely. We agree.

¶ 6 The issue in Blakely was whether a judge's factual determinations that supported the imposition of an exceptional sentence violated the Sixth Amendment. While standard range sentences, not exceptional sentences, are at issue in these appeals, the principle of Blakely nonetheless applies to the findings at issue here.

¶ 7 In Blakely, the United States Supreme Court held the high end of a Sentencing Reform Act (SRA) standard range was the "relevant `statutory maximum'" because that was all that could lawfully be imposed based solely on the jury's finding of guilt.⁴ Here, RCW 9.94A.525(17) provides that a judge will increase a defendant's offender score by one point if the offender was on community placement at the time of the current conviction.⁵ Although the increase in the score does not result in an exceptional sentence, the added point increases the applicable standard range — the relevant statutory maximum. Thus, unless the community placement findings fall within the "fact of a prior conviction" exception, such findings must be made by a jury and determined beyond a reasonable doubt.

¶ 8 Almendarez-Torres v. United States⁶ addressed the role of recidivisim in sentencing. There, the defendant was convicted of illegal reentry to the United States after an earlier conviction for aggravated felonies followed by deportation. Whether the indictment for the current crime was required to contain an allegation that the prior conviction was for aggravated felonies was the issue before the Supreme Court. The court held that prior convictions are sentence enhancements, not elements of the crime charged in that proceeding. Thus, it was not necessary to plead the prior convictions in the indictment.

¶ 9 During its next term, the United States Supreme Court discussed Almendarez-Torres in its Jones v. United States⁷ decision. The court stated "[U]nlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the ... jury trial guarantees."⁸

¶ 10 In Apprendi v. New Jersey,⁹ the United States Supreme Court squarely addressed the extent to which the Sixth Amendment applied to sentencing. There, a New Jersey statute authorized judges to increase a defendant's sentence if they found by a preponderance of evidence that defendants acted with a purpose to intimidate because of race. The court concluded that the statute violated the defendant's Fourteenth Amendment due process rights and Sixth Amendment jury trial right because there was no meaningful distinction between elements and sentencing factors for purposes of the right to a jury trial. However, the court articulated an exception to this constitutional rule for "the fact of a prior conviction."¹⁰

¶ 11 The Apprendi court again reviewed Almendarez-Torres. Noting the traditional usage of recidivism facts for sentence enhancements, the procedural safeguards that attended the "fact" of those convictions, and the defendant's agreement to the accuracy of his criminal history, the court declined to overrule Almendarez-Torres:

Both the certainty that procedural safeguards attached to any fact of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that fact in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact increasing punishment beyond the maximum of the statutory range.

Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence. [¹¹]

¶ 12 Although the above statement in Apprendi questioned the rationale of Almendarez-Torres, Blakely expressly retained the prior conviction exception precisely as articulated in Apprendi. We, accordingly, reject Jones' and Thomas' contention that the above quotation and Justice Thomas' apparent change of heart regarding Almendarez-Torres give reason to doubt the exception's continued viability.¹² As we recently held in rejecting the same argument in another case, the exception remains and "we decline to rely upon speculation about its future." [¹³]

¶ 13 The question we must decide is whether the fact that a defendant was on community placement for a prior crime at the time of his present crime is within the narrow prior conviction exception. We conclude that it is not.

¶ 14 "Community placement" is defined by RCW 9.94A.030(7) as

that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.

¶ 15 "Community custody," in turn, is defined in RCW 9.94A.030(5) as

that portion of an offender's sentence of confinement in lieu of earned release time or imposed pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the community subject to controls placed on the offender's movement and activities by the department ... [¹⁴]

¶ 16 The plain words of these statutes make clear that community placement begins after confinement. And whether one is on community custody or community placement, the additional point is added to an offender score.¹⁵

¶ 17 More importantly, whether one convicted of an offense is on community placement or community custody at the time of the current offense cannot be determined from the fact of a prior conviction. Too many variables are involved.

¶ 18 For example, a defendant may receive credit for preconviction incarceration, the length of which may not be specified in the judgment and sentence. The defendant may receive additional credit for preconviction incarceration if the local detention facility awarded him good conduct time.¹⁶ And even if both of these determinations are in the relevant judgment and sentence, there is no possible way for the sentence to reflect whether the defendant will eventually become entitled to "[e]arned release time" under RCW 9.94A.728, which may be as much as 50 percent of the sentence imposed. Moreover, under RCW 9.94A.728(2)(d), the DOC may deny release to community custody status for some offenses even if a defendant has obtained ...