State v. Monroe

109 P.3d 449

126 Wash.App. 435

STATE of Washington, Respondent, v. Gregory Edward MONROE, Appellant.

No. 30239-0-II.

Court of Appeals of Washington, Division 2.

March 15, 2005.

Anton Laurens Knappert, Attorney at Law, Thomas E. Weaver, Attorney at Law, Port Orchard, WA, for Appellant.

Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, John Scott Blonien, Attorney at Law, Olympia, WA, for Respondents.

QUINN-BRINTNALL, C.J.

¶ 1 Gregory Edward Monroe pleaded guilty to two counts of first degree rape, one count of first degree burglary with sexual motivation, five counts of first degree kidnapping, and one count of second degree assault. The sentencing guidelines of RCW 9.94A.712 applied to Monroe's sentencing on the rape counts (counts I and II) and the burglary with sexual motivation count. That statute directed the superior court to sentence Monroe to a maximum term of life on those counts and to set a determinate minimum term. In exchange for Monroe's plea of guilty, the State agreed to recommend that the superior court set Monroe's determinate minimum term sentences at 511 months, the top of his standard range.

¶ 2 Monroe stipulated that the court could consider the probable cause statement and any discovery in the case as the material facts to support his guilty plea. The sentencing court reviewed these documents together with the pre-sentence investigation report which recommended a determinate minimum term of 711 months, and written statements or live testimony from all five victims, an attorney for the victims, the deputy prosecuting attorney, Monroe's attorney, and Monroe. The court found that Monroe's crimes involved deliberate cruelty, victims who were particularly vulnerable, and a high degree of sophistication and planning. Based on these aggravating factors, the superior court sentenced Monroe to serve a maximum term of life with a determinate minimum term of 651 months, which resulted from imposing sentences above the standard range on counts I and II.¹ Monroe appeals from this sentence.

¶ 3 This appeal requires that we address two issues. First, did the deputy prosecutor violate the plea agreement when urging the sentencing court to impose a minimum sentence of 511 months? This panel unanimously agrees that the answer to this question is no. Secondly, under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is a defendant entitled to have a jury find disputed facts beyond a reasonable doubt before the sentencing court can use such facts to impose a minimum term above his standard range under RCW 9.94A712(3)? A majority of this panel agrees, albeit for different reasons, that the answer to this question is yes: disputed facts, other than prior convictions, must be proved beyond a reasonable doubt to a jury before those facts can be relied on by the sentencing court in setting a defendant's minimum term. We therefore affirm Monroe's plea-based convictions, but remand for resentencing.

ANALYSIS

PROSECUTORIAL MISCONDUCT

¶ 4 Monroe first contends that this case should be remanded so he can withdraw his guilty plea or be resentenced because the prosecutor's comments and conduct during sentencing violated his plea agreement with the State. Although the prosecutor made the agreed-upon recommendation for a determinate minimum term of 511 months, Monroe asserts that other statements made by the prosecutor undercut that recommendation and implicitly endorsed the imposition of an exceptional sentence. These statements included: (1) that the facts would have supported additional rape counts had the case gone to trial; (2) that Monroe's crimes were "one of the most significant crime sprees" the prosecutor could remember; (3) the prosecutor's opinion that there are "murder cases that have less victim impact than what happened in this case;" and (4) that Monroe had "his way with" the victims. Report of Proceedings (April 7, 2003) at 6, 7.

¶ 5 It is well established that the State must exercise good faith in fulfilling the promises that led a defendant to enter into a plea agreement. State v. Sledge, 133 Wash.2d 828, 838-39, 947 P.2d 1199 (1997). The prosecutor may not "undercut the terms of the agreement explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement." Sledge, 133 Wash.2d at 840, 947 P.2d 1199. We review the prosecutor's actions and comments objectively to determine whether the State has breached a plea agreement. State v. Jerde, 93 Wash.App. 774, 780, 970 P.2d 781, review denied, 138 Wash.2d 1002, 984 P.2d 1033 (1999).

¶ 6 Our review of the record establishes that the deputy prosecutor in this case did not violate the plea agreement. In exchange for Monroe's guilty pleas, the State agreed to recommend that the sentencing court set Monroe's determinate minimum term at 511 months, the top of Monroe's standard range. The State's argument in support of that recommendation necessarily included facts sufficient to justify the court in setting Monroe's minimum sentence at the top rather than the bottom of his 384 to 511 month standard range. And while the prosecutor had to guard against undercutting the plea agreement by emphasizing facts generally considered only in imposing an exceptional sentence, he was not muted simply because Monroe's crimes arouse natural indignation. See State v. Rice, 110 Wash.2d 577, 606, 757 P.2d 889 (1988),cert. denied, 519 U.S. 873, 117 S.Ct. 191, 136 L.Ed.2d 129 (1996); State v. Fleetwood, 75 Wash.2d 80, 84, 448 P.2d 502 (1968). Here, the record indicates that the deputy prosecutor recounted salient facts and then unequivocally urged the court to set Monroe's determinate minimum term at 511 months. The State's recommendation was in accord with the plea agreement and the deputy prosecutor's presentation of that recommendation was not unduly inflammatory. See generally Sledge, 133 Wash.2d at 842-43,947 P.2d 1199 (prosecutor undercut plea when he recommended a standard range sentence but then emphasized various aggravating factors which would sustain an exceptional sentence); State v. Xaviar, 117 Wash.App. 196, 200-01, 69 P.3d 901 (2003) (plea agreement to recommend low-end sentence was violated where prosecutor recited the egregious facts of the crime and highlighted various statutory aggravating factors which signaled the prosecutor's lack of support for the recommendation); State v. Van Buren, 101 Wash.App. 206, 217, 2 P.3d 991 (plea agreement was undercut when the State downplayed its recommendation and focused the court's attention on aggravating factors), review denied, 142 Wash.2d 1015, 16 P.3d 1265 (2000). The prosecutor did not violate the plea agreement and Monroe is not entitled to elect between specific performance and withdrawal of his guilty plea.

BLAKELY ISSUES

¶ 7 Monroe next asserts that he was entitled to have a jury, rather than the superior court, resolve disputed facts that supported setting determinate minimum terms above the standard range for each crime. In support of this argument, Monroe cites Blakely, 124 S.Ct. at 2536 (holding that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory sentencing range, must be submitted to a jury and proved beyond a reasonable doubt). The State asks us to reject Monroe's Blakely argument for two reasons. First, the State asserts that Blakely does not apply in circumstances such as those set forth in RCW 9.94A.712, where the superior court is required to sentence the defendant to the statutory maximum term. And second, even if Blakely applies to sentences imposed under RCW 9.94A.712, Monroe waived any right he may have had to a jury trial on these issues by stipulating that the sentencing court could consider the affidavit of probable cause and discovery in the case.

¶ 8 We address first the State's argument that Monroe waived his right to a sentencing jury.

WAIVER OF RIGHT TO JURY TRIAL AT SENTENCING

¶ 9 After Blakely, where a defendant has pleaded guilty, the State may seek judicial sentence enhancements only if the defendant has either stipulated to the relevant facts or consented to judicial fact-finding. If Monroe had been made aware of his rights under Blakely, his stipulation permitting the sentencing court to consider the probable cause statement and any discovery in the case as material facts would have provided sufficient evidence that Monroe's crimes involved deliberate cruelty, sophisticated planning, and particularly vulnerable victims. These aggravating factors would support imposing a determinate minimum term in excess of Monroe's standard range sentence of 138-184 months for count I and 93-123 months for count II.² But to be valid, a waiver must be a voluntary relinquishment of a known right. State v. Thang, 145 Wash.2d 630, 648, 41 P.3d 1159 (2002). When Monroe consented to judicial fact-finding, Blakely had not been issued³ and it was the established rule of this state that a defendant had no right to have a jury decide facts supporting exceptional sentences. State v. Gore, 143 Wash.2d 288, 315, 21 P.3d 262 (2001). Monroe could not have knowingly waived his right to jury fact-finding at sentencing when the only controlling precedent held that he had no such right. State v. Borboa, 124 Wash.App. 779, 102 P.3d 183, 189-90 (2004); State v. Harris, 123 Wash.App. 906, 920-21, 99 P.3d 902 (2004).

APPLICATION OF BLAKELY TO SENTENCES UNDER RCW 9.94A.712

¶ 10 The next issue concerns whether a defendant is entitled to have a jury find disputed facts beyond a reasonable doubt before the sentencing court can use such facts to impose a minimum term above his standard range under RCW 9.94A712(3). A majority of this panel agrees, albeit for different reasons, that the answer to this question is yes and that Monroe's minimum term sentence of 651 months must be vacated and the case remanded to the superior court for resetting of Monroe's...