State v. Mitchell

1

STATE OF WASHINGTON, Respondent, v. DALE ROBERTSON MITCHELL, Appellant.

No. 83568-8-I

Court of Appeals of Washington, Division 1

August 7, 2023

UNPUBLISHED OPINION

Díaz, J.

A jury convicted Dale Mitchell of burglary and rape in 1996. The first sentencing court found several aggravating factors and imposed an exceptional sentence of 300 months for each crime which would run concurrently. Following our Supreme Court's decision in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021)-which invalidated Washington's felony drug possession statute, Mitchell's offender score dropped meaningfully and he sought a "new" sentence, i.e., one in which the second sentencing court would reduce the sentence and/or reconsider the aggravating factors. The second sentencing court corrected his offender score and, thus, the standard sentencing range, but declined to reconsider the aggravating factors, preserving Mitchell's exceptional sentence. Mitchell now claims that decision to not "fully" resentence him was error as well as claiming that his Sixth Amendment rights were violated either (1) because an exceptional sentence was (re)imposed by a judge and not a jury, or (2), to the extent his counsel fatally waived such an objection, that he did not receive effective assistance of counsel. We affirm the second sentencing court's decision not to reconsider the facts underlying Mitchell's exceptional sentence and hold that no other constitutional right was implicated or violated.

I. FACTS

A. Mitchell's 1996 Conviction

In the early morning hours of September 21, 1995, Mitchell, who was 32 years old at the time, used a ladder to climb into the bedroom of 15-year-old T.E. while she was sleeping. He ordered T.E. out of bed, robbed jewelry from her home, and forced T.E. to drink alcohol from the family liquor cabinet, all while threatening her life. He then covered T.E.'s eyes with a dark cap and led her to his car, eventually ordering T.E. into the trunk of a car until they arrived at, at the time, an unknown hotel. At some point, T.E. lost consciousness. At the hotel room, Mitchell kept T.E. in the room, where he raped her repeatedly over a period of 18 hours, again while intermittently threatening her life with a gun.

Eventually, Mitchell again forced T.E. to drink alcohol and put the cap over her eyes. He dropped T.E. off near her grandmother's home, where she called the police and went to Harborview Medical Center for a medical exam. The medical exam found signs of vaginal trauma.

A subsequent investigation found Mitchell used the same address to register for the hotel as the address listed on his parole identification card. The investigation also found a knit cap with T.E.'s hair fibers, which were also found in the trunk of Mitchell's car. Furthermore, Mitchell's fingerprints matched those found on the window frame of T.E.'s bedroom. Finally, the DNA from semen stains on T.E.'s undergarments matched Mitchell's DNA.

Mitchell was arrested and charged with burglary and rape. The jury found him guilty on both counts.

B. Mitchell's 1996 Sentencing and 1999 Appeal

Judge Laura Inveen presided over Mitchell's sentencing. She found that Mitchell had an offender score of 8, both for the rape and the burglary.^[1] The rape in the first degree had a seriousness level of XI and, with an offender score of 8, generated a standard range of 185 to 245 months. The burglary in the first-degree had a seriousness level of VII and, with an offender score of 8, generated a standard range of 77 to 102 months.

The State sought exceptional sentences of 300 months for Mitchell's two convictions (burglary and rape), based on several aggravating factors. At the sentencing hearing, Mitchell did not object to his offender score of 8, but asked for a sentence in the standard range. Judge Inveen imposed an exceptional sentence of three hundred months on each charge.

Shortly thereafter, Mitchell appealed his sentence to this court. State v. Mitchell, noted at 97 Wn.App.1046 (1999). This court affirmed. Mitchell, 1999 WL 760232, at *8. Notably, this court held that, although the aggravating factor of recidivism was improper, it was "satisfied from the trial court's oral and written findings that it would have imposed the same sentences based on the remaining valid reasons, i.e., deliberate cruelty based on multiple penetrations and pre-age-15 criminal history. Therefore, we uphold Mitchell's exceptional sentences." Mitchell, 1999 WL 760232, at *8. Mitchell's convictions became final on April 17, 2000.

C. Mitchell's 2021 Resentencing

21 years later, our Supreme Court decided State v. Blake. Again, Blake invalidated Washington's simple drug possession statute, RCW 69.50.4013. Blake, 197 Wn.2d at 195. Mitchell moved the trial court under CrR 7.8 for a sentencing hearing, arguing that-because his original offender score included three drug possession-related offenses, which pursuant to Blake must be stricken-his offender score should drop from 8 to 5 and his maximum standard sentencing range should drop from 245 to 158 months and from 102 to 54 months for the rape and burglary, respectively. Specifically, Mitchell asked the trial court for an entirely "new" sentence, i.e., one in which the trial court reduced the exceptional sentence and/or would reconsider the aggravating factors.

The court granted the request for a hearing and, on January 5, 2022, the parties came before Judge Brian McDonald because Judge Inveen had since retired. Judge McDonald first accepted the State's concession and lowered Mitchell's offender score to 5 and the sentencing ranges accordingly. For reasons to be discussed further below, Judge McDonald then ruled that he would "enter an order that corrects the offender score, but [he was] not going to reconsider the exceptional sentence or any other part of the sentence."

Mitchell appeals that decision.

II. ANALYSIS

Mitchell first argues that trial court erred in failing to conduct a "new" or "full" resentencing and that his Sixth Amendment right for a jury to determine the facts underlying the exceptional sentence was violated by the alleged proportional "increase" of his sentence. We consider the latter argument first.^[2]

A. Sixth Amendment and Blakely

1. Law

In Blakely v. Washington, 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.'" 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (superseded by statute on other grounds) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

Shortly after, our Supreme Court clarified that Blakely did not apply to Washington state cases that were already final on direct review. State v. Evans, 154 Wn.2d 438, 448, 114 P.3d 627 (2005). However, in certain situations, such as when a criminal defendant's sentence was vacated, Blakely could apply on remand. See, e.g., State v. McNeal, 142 Wn.App. 777, 787, 175 P.3d 1139 (2008). As Mitchell concedes, "[t]he application of Blakely, however, becomes more complicated when an individual is entitled to resentencing."

2. Discussion

Mitchell argues that, "[w]hen Judge McDonald reimposed Judge Inveen's 300-month sentence despite Mr. Mitchell's lower offender score, he effectively increased Mr. Mitchell's exceptional sentence from 55 months to 142 months above the standard range," which "violated Blakely and Mr. Mitchell's Sixth Amendment jury trial right, because the increase was based on aggravating factors never found by a jury." By "effectively increased," Mitchell explains he means that it was a greater "disproportionate increase above the standard range" than the original sentence, from 18% above the original sentencing range (of 245 months) to 47% above the new lower range (of 158 months), as to the rape conviction.

This argument fails for at least two independent but related reasons. First, this court has clearly held that, even post-Blakely, a judge's decision regarding the propriety and length of an exceptional sentence is distinct from the findings of fact underlying it, which are decided by a jury. In re Pers. Restraint of Rowland, 149 Wn.App. 496, 511, 204 P.3d 953 (2009) ("Rowland II") (holding that the SRA "makes it a function of the trial court to decide whether to impose an exceptional sentence, and if so how long it should be"). "This feature of the statute has survived Blakely." Id. In other words, Judge McDonald at most decided the propriety and length of the exceptional sentence, and not the facts underlying it; thus, Blakely and the Sixth Amendment are simply not implicated.

Second this court was confronted with somewhat similar facts, though in slightly different procedural posture, in State v. Rowland, 160 Wn.App. 316, 318, 249 P.3d 635 (2011), as corrected (Mar. 29, 2011) ("Rowland III"). There, the question was whether Blakely required "that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score." Id. at 319. As is the case here, "[a]t the time of Rowland's original sentence, the law allowed a sentencing court to impose an exceptional sentence based on judicial fact-finding." Id. at 320. At his final resentencing, "[t]he court stated that Blakely did not apply on resentencing, and it distinguished between what it was required to reconsider on remand (the standard range sentence) from the exceptional sentence." Id. at 321. The trial court "reimposed" the same exceptional sentence (of 180 months) even though it was now proportionally larger...