FILED
May 21, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 28835-8-II1 Respondent, ) ) v. ) ) ANTHONY D. SINGH, ) ) UNPUBLISHED OPINION Appellant. )
SIDDOWAY, A.C.J. - Anthony Singh relies on the Washington Supreme Court's
decision in State v. Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010)1 to challenge an
exceptional sentence and firearm enhancements imposed for an armed assault he
committed in July 2008. Given the decisions of this court and the Supreme Court in State
v. Guzman Nunez, 160 Wn. App. 150,248 P.3d 103 (2011), affd, 174 Wn.2d 707, 285
P.3d 21 (2012), his arguments fail. We affirm his convictions but, having determined
that the sentence imposed by the trial court fails to accomplish its stated objective and
could create future confusion, we reverse the sentence and remand for consideration and
entry of a corrected sentence.
1 Overruled by State v. Guzman Nunez, 174 Wn.2d 707,285 P.3d 21 (2012). No. 28835-8-III State v. Singh
FACTS AND PROCEDURAL BACKGROUND
In July 2008, Anthony Singh and his brother became involved in an early morning
altercation with Alasaga Tauala in downtown Spokane. As the men argued, Mr. Singh,
already a convicted felon prohibited from possessing a firearm, accepted a handgun
offered him by his brother and fired it at Mr. Tauala's feet. The bullet hit Mr. Tauala's
right shoe but did not injure him. Later that day, Mr. Singh contacted a woman who had
ridden with him and his brother the night before and was present at the shooting. He told
her not to discuss the shooting with anyone. She felt threatened by the conversation.
Mr. Singh was charged with second degree assault with a deadly weapon (count I),
drive-by shooting (count II), first degree unlawful possession of a firearm (count III),
conspiracy to commit second degree assault (count IV), intimidating a witness (count V),
and tampering with a witness (count VI). The State alleged that he had been armed with
a firearm in committing the offenses charged in counts I and IV.
In connection with the potential firearm sentencing enhancements, the jury was
given special verdict forms to answer in the event it found Mr. Singh guilty of assault or
conspiracy to commit assault. It was instructed that when answering the special verdict
forms, which asked whether Mr. Singh had been armed with a firearm in committing the
offense, "If you unanimously have a reasonable doubt as to this question, you must
answer 'no. '" Clerk's Papers (CP) at 648. No objection was made to these instructions.
No. 28835-8-III State v. Singh
Mr. Singh was convicted on all counts except count V. The jury answered "yes" to the
two special verdict forms.
In sentencing Mr. Singh, the court determined that he had an offender score of 9 or
higher; the duration of his firearm enhancements must be doubled because he had earlier
served sentences enhanced based on a finding he had been armed with a firearm,
requiring the court to impose six years for the enhancement on count I and three years for
the enhancement on count IV; counts I, II, and III should be treated as the same criminal
conduct for offender score purposes and should run concurrently to one another; and
counts IV and VI amounted to separate conduct and should run concurrently to one
another.
The court granted the State's request for exceptional consecutive sentencing, with
the latter two counts running consecutively to the first three. The State had argued that
the 9 years that must be served on the consecutive firearm enhancements would consume
all but 1 year of the maximum 10-year sentence that the court could impose on the most
serious (class B) felonies, leaving some of Mr. Singh's offenses effectively unpunished.
According to the judgment and sentence, the total amount of confinement imposed was
171 months. Mr. Singh appeals.
ANALYSIS
Mr. Singh challenges the trial court's imposition of the firearm enhancements and
its imposition of an exceptional sentence upward. We address the challenges in tum.
I
In his opening brief filed before this court's opinion in Guzman Nunez, Mr. Singh
argued that in light of Bashaw, the firearm sentencing enhancements must be vacated
because the jury was incorrectly instructed that it had to be unanimous to answer "no" to
the special verdict forms. Under Bashaw, the instruction given was an incorrect
statement of law. 169 Wn.2d at 147 (holding that juror unanimity "is not required to find
the absence of such a special finding").
This court's decision in Guzman Nunez was filed in February 2011, during the
course of the parties' briefing of this appeal. In Guzman Nunez, we held that a trial
court's incorrect instruction requiring unanimity to answer "no" to a special verdict form
addressing an aggravating factor was not manifest constitutional error and could not be
raised for the first time on appeal. 160 Wn. App. at 159-64. Mr. Singh did not object at
trial to the instruction he challenges in this appeal. In addressing our decision in Guzman
Nunez in his reply brief, Mr. Singh argued that we were wrong in finding no manifest
constitutional error (a panel from Division One had by then held otherwise in State v.
Ryan, 160 Wn. App. 944, 252 P.3d 895 (2011), rev'd, 174 Wn.2d 707) and, alternatively,
that he could raise the matter for the first time on appeal as a sentencing error-that is,
the trial court erroneously enhanced his sentence on the basis of the jury's response to a
flawed verdict form.
The Washington Supreme Court's decision in Guzman Nunez, 174 Wn.2d 707 was
filed after the parties completed their briefing. In Guzman Nunez, the Supreme Court
overruled the nonunanimity rule for aggravating circumstances it had expressed in
Bashaw and, before that, in State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003). It
upheld the giving of instructions requiring unanimity for either "yes" or "no" special
verdict answers. In light of the Supreme Court's overruling of Bashaw, both of Mr.
Singh's arguments challenging the jury instruction and the reSUlting sentence
enhancements fail.
II
Mr. Singh also challenges the exceptional consecutive sentence imposed by the
trial court.
In reviewing an exceptional sentence, we may reverse if we find, "(a) Either 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 (b) that the sentence imposed was clearly excessive or
clearly too lenient." RCW 9.94A.585(4). We review de novo whether the reasons
supplied by the sentencing court justifY an exceptional sentence. State v. Hale, 146 Wn.
App. 299, 308, 189 P.3d 829 (2008). Here, the State requested and the trial court
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FILED
May 21, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 28835-8-II1 Respondent, ) ) v. ) ) ANTHONY D. SINGH, ) ) UNPUBLISHED OPINION Appellant. )
SIDDOWAY, A.C.J. - Anthony Singh relies on the Washington Supreme Court's
decision in State v. Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010)1 to challenge an
exceptional sentence and firearm enhancements imposed for an armed assault he
committed in July 2008. Given the decisions of this court and the Supreme Court in State
v. Guzman Nunez, 160 Wn. App. 150,248 P.3d 103 (2011), affd, 174 Wn.2d 707, 285
P.3d 21 (2012), his arguments fail. We affirm his convictions but, having determined
that the sentence imposed by the trial court fails to accomplish its stated objective and
could create future confusion, we reverse the sentence and remand for consideration and
entry of a corrected sentence.
1 Overruled by State v. Guzman Nunez, 174 Wn.2d 707,285 P.3d 21 (2012). No. 28835-8-III State v. Singh
FACTS AND PROCEDURAL BACKGROUND
In July 2008, Anthony Singh and his brother became involved in an early morning
altercation with Alasaga Tauala in downtown Spokane. As the men argued, Mr. Singh,
already a convicted felon prohibited from possessing a firearm, accepted a handgun
offered him by his brother and fired it at Mr. Tauala's feet. The bullet hit Mr. Tauala's
right shoe but did not injure him. Later that day, Mr. Singh contacted a woman who had
ridden with him and his brother the night before and was present at the shooting. He told
her not to discuss the shooting with anyone. She felt threatened by the conversation.
Mr. Singh was charged with second degree assault with a deadly weapon (count I),
drive-by shooting (count II), first degree unlawful possession of a firearm (count III),
conspiracy to commit second degree assault (count IV), intimidating a witness (count V),
and tampering with a witness (count VI). The State alleged that he had been armed with
a firearm in committing the offenses charged in counts I and IV.
In connection with the potential firearm sentencing enhancements, the jury was
given special verdict forms to answer in the event it found Mr. Singh guilty of assault or
conspiracy to commit assault. It was instructed that when answering the special verdict
forms, which asked whether Mr. Singh had been armed with a firearm in committing the
offense, "If you unanimously have a reasonable doubt as to this question, you must
answer 'no. '" Clerk's Papers (CP) at 648. No objection was made to these instructions.
No. 28835-8-III State v. Singh
Mr. Singh was convicted on all counts except count V. The jury answered "yes" to the
two special verdict forms.
In sentencing Mr. Singh, the court determined that he had an offender score of 9 or
higher; the duration of his firearm enhancements must be doubled because he had earlier
served sentences enhanced based on a finding he had been armed with a firearm,
requiring the court to impose six years for the enhancement on count I and three years for
the enhancement on count IV; counts I, II, and III should be treated as the same criminal
conduct for offender score purposes and should run concurrently to one another; and
counts IV and VI amounted to separate conduct and should run concurrently to one
another.
The court granted the State's request for exceptional consecutive sentencing, with
the latter two counts running consecutively to the first three. The State had argued that
the 9 years that must be served on the consecutive firearm enhancements would consume
all but 1 year of the maximum 10-year sentence that the court could impose on the most
serious (class B) felonies, leaving some of Mr. Singh's offenses effectively unpunished.
According to the judgment and sentence, the total amount of confinement imposed was
171 months. Mr. Singh appeals.
ANALYSIS
Mr. Singh challenges the trial court's imposition of the firearm enhancements and
its imposition of an exceptional sentence upward. We address the challenges in tum.
I
In his opening brief filed before this court's opinion in Guzman Nunez, Mr. Singh
argued that in light of Bashaw, the firearm sentencing enhancements must be vacated
because the jury was incorrectly instructed that it had to be unanimous to answer "no" to
the special verdict forms. Under Bashaw, the instruction given was an incorrect
statement of law. 169 Wn.2d at 147 (holding that juror unanimity "is not required to find
the absence of such a special finding").
This court's decision in Guzman Nunez was filed in February 2011, during the
course of the parties' briefing of this appeal. In Guzman Nunez, we held that a trial
court's incorrect instruction requiring unanimity to answer "no" to a special verdict form
addressing an aggravating factor was not manifest constitutional error and could not be
raised for the first time on appeal. 160 Wn. App. at 159-64. Mr. Singh did not object at
trial to the instruction he challenges in this appeal. In addressing our decision in Guzman
Nunez in his reply brief, Mr. Singh argued that we were wrong in finding no manifest
constitutional error (a panel from Division One had by then held otherwise in State v.
Ryan, 160 Wn. App. 944, 252 P.3d 895 (2011), rev'd, 174 Wn.2d 707) and, alternatively,
that he could raise the matter for the first time on appeal as a sentencing error-that is,
the trial court erroneously enhanced his sentence on the basis of the jury's response to a
flawed verdict form.
The Washington Supreme Court's decision in Guzman Nunez, 174 Wn.2d 707 was
filed after the parties completed their briefing. In Guzman Nunez, the Supreme Court
overruled the nonunanimity rule for aggravating circumstances it had expressed in
Bashaw and, before that, in State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003). It
upheld the giving of instructions requiring unanimity for either "yes" or "no" special
verdict answers. In light of the Supreme Court's overruling of Bashaw, both of Mr.
Singh's arguments challenging the jury instruction and the reSUlting sentence
enhancements fail.
II
Mr. Singh also challenges the exceptional consecutive sentence imposed by the
trial court.
In reviewing an exceptional sentence, we may reverse if we find, "(a) Either 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 (b) that the sentence imposed was clearly excessive or
clearly too lenient." RCW 9.94A.585(4). We review de novo whether the reasons
supplied by the sentencing court justifY an exceptional sentence. State v. Hale, 146 Wn.
App. 299, 308, 189 P.3d 829 (2008). Here, the State requested and the trial court
imposed an exceptional sentence upward based on RCW 9.94A.535(2)(c), which permits
the trial court to impose such a sentence when "[t]he defendant has committed multiple
No. 28835-8-II1 State v. Singh
current offenses and the defendant's high offender score results in some of the current
offenses going unpunished." The State and trial court believed that the firearm
enhancements would substitute for 9 years of the maximum 10-year sentence on Mr.
Singh's class B felonies,2 meaning that unless the court imposed an exceptional
consecutive sentence, Mr. Singh would serve only 12 months for the underlying crimes.
Mr. Singh's briefs challenge the exceptional sentence based on his assumption that
we would reverse the firearm enhancements in light of Bashaw. He argues that without
valid firearm enhancements, the trial court's only reason for imposing the exceptional
sentence disappears. Of course, with that as Mr. Singh's only argument, and with the
firearm enhancements having proved valid, his only reason for challenging the
exceptional sentence disappears.
While that would ordinarily dispose of the appeal, in the course of our de novo
review of the exceptional sentence we can see that the sentence imposed did not
accomplish the trial court's stated objective and that some provisions of the judgment and
sentence may be a source of future confusion.
The State and the trial court were correct that the firearm enhancements must run
"consecutively to all other sentencing provisions, including other firearm ...
2 Second degree assault with a deadly weapon, drive-by shooting, first degree unlawful possession of a firearm, and intimidating a witness are all class B felonies subject to a maximum lO-year sentence. RCW 9A.36.021(2)(a), .045(3); RCW 9.41.040(l)(b); RCW 9A.72.110(4); RCW 9A.20.021 (l)(b).
No. 28835-8-111 State v. Singh
enhancements, for all offenses sentenced under [chapter 9.94A RCW]." RCW
9.94A.533(3)(e). They were also correct that the total sentence for a given offense,
including enhancements to the sentence for that offense, cannot exceed the statutory
maximum-meaning, e.g., that the court could not impose more than 48 months for the
second degree assault (count I) in light of the 6-year firearm enhancement and 10-year
maximum sentence. RCW 9.94A.533(3)(g); State v. DeSantiago, 149 Wn.2d 402, 421,
68 P.3d 1065 (2003) (the presumption that the total sentence, including firearm and
deadly weapon enhancements, cannot exceed the statutory maximum ensures that
enhancements will not "absurdly extend sentences," citing subsections (g) of former
RCW 9.94A.510(3) and (4) (1998)). But they failed to consider that sentences imposed
by the trial court for other offenses not subject to firearm enhancements are not reduced
for the enhancements and extend the total period of incarceration.
Accordingly, while the State proposed the exceptional consecutive sentence
believing that it would result in a total period of incarceration of 171 months, the terms
imposed on each count and the court's order as to whether they are to run consecutively
or concurrently result in 246 months of total confinement-because, pursuant to RCW
9.94A.533(3)(g), the firearm enhancements cannot run concurrently with any other
offense regardless of whether an enhancement was imposed on account of that offense or
not. The following sentencing timeline illustrates the operation of the exceptional
consecutive sentence imposed by the court:
~ Concurrent sentences Consecutive Firearm enhancements (FA) sentences
I I: 12 months IV: 24 months FA: 72 months I FA: 36 months I II: 87 months VI: 51 months
I III: 87 months
In fact, given the standard range of 87 months to 116 months for counts II and III in
light of Mr. Singh's offender score, reversal of the exceptional consecutive sentence on
counts IV and VI is not enough to reduce his period of confinement to the 171-month total
contemplated by the trial court. The total sentence, applying the low end of the standard
range, amounts to 195 months, as illustrated by the following sentencing timeline:
Concurrent sentences Firearm enhancements (FA)
I: 12 months FA: 72 months I FA: 36 months II: 87 months
III: 87 months
IV: 24 months
VI: 51 months
The only way to achieve a 171-month period of incarceration is with an exceptional
sentence downward, reducing the sentences for counts II and III below the standard range.
8 No. 28835-8-III State v. Singh
The trial court's judgment and sentence states that the "[a]ctual number of months
of total confinement ordered is 171 months." CP at 866. That absolute limitation treats
the sentence terms for counts II, III, and VI as being partially consumed by the firearm
enhancements. Despite that intention on the part of the trial court, the Department of
Corrections may construe the judgment and sentence as ordering the 246 months of
confinement that follows from some of its other provisions.
Therefore, while finding none of the errors assigned by Mr. Singh, we reverse the
exceptional sentence and remand to the trial court for resentencing.
We affirm the convictions and reverse and remand the sentence for proceedings
consistent with this opinion.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
Sidd~'
WE CONCUR:
Kulik, J.