State of Washington v. Anthony Robert Fulkerson

• Court: Court of Appeals of Washington
• Decided: June 16, 2026
• Docket: 40600-8
• Status: Unpublished

Opinion

FILED JUNE 16, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, ) ) No. 40600-8-III Respondent, ) ) v. ) ) ANTHONY ROBERT FULKERSON, ) UNPUBLISHED OPINION ) Appellant. )

STAAB, C.J. — For the second time, Anthony Robert Fulkerson appeals his

exceptional sentence arising from 16 felony convictions for sexual offenses committed

against his minor stepdaughters. In our prior decision, we remanded this case for the trial

court to enter written findings of fact and conclusions of law in support of its exceptional

sentence. State v. Fulkerson, No. 39372-1-III (Wash. Ct. App. May 16, 2024)

(unpublished), https://www.courts.wa.gov/opinions/pdf/393721_unp.pdf (Fulkerson I).

On remand, the trial court entered written findings confirming the jury’s special verdicts

on multiple aggravating factors and concluded that those aggravators constituted

substantial and compelling reasons for an exceptional sentence. No. 40600-8-III State v. Fulkerson

In this appeal, Fulkerson raises two issues: (1) whether his exceptional sentence

violates the Sixth and Fourteenth Amendments to the United States Constitution because

the jury did not find that the aggravating factors were also substantial and compelling

reasons for an exceptional sentence, and (2) whether the trial court failed to comply with

this court’s remand order by entering written findings without conducting a new

sentencing hearing. We disagree with his arguments and affirm.

BACKGROUND

Fulkerson was charged with 16 felonies arising from sexual abuse of his minor

stepdaughters. A jury convicted him of all counts. The jury also unanimously found,

through special interrogatories, four aggravating circumstances for 12 of the counts that

involved: (1) an ongoing pattern of sexual abuse over a long period of time,

(2) aggravated domestic violence, (3) a destructive and foreseeable impact on other

persons, and (4) Fulkerson using his position of trust to facilitate said offense. For 10

counts, the jury also found that Fulkerson and the victims were part of the same family

household.

At sentencing, the court issued an oral ruling that an exceptional sentence was

justified based on the aggravating factors found by the jury and based on the fact that

some of Fulkerson’s crimes would go unpunished under concurrent sentencing due to the

high offender score. During its sentencing colloquy, the court explained its reasoning:

2 No. 40600-8-III State v. Fulkerson

As far as a sentence, the Court has taken into account the aggravating factors, and although Mr. Fulkerson—it weighed in his favor was that he had no history, weighing against him was that his offender score, essentially, was so high because of what was charged and what he was found guilty, that it essentially would—a standard range sentence would result in a number of crimes, more or less, going unpunished. I have tried to take into account what I think is appropriate, based on all the circumstances, taking [in]to account the horrible facts and also some of the positives in Mr. Fulkerson’s life. . . And so, I realized that people wanted to put something that was higher, that potentially made no possibility of release. But based on the lack of previous history, I felt that that [sic] was a sufficient and an appropriate sentence.

Rep. of Proc. at 29, 31.

The court imposed exceptional sentences above the standard range for 5 of the 16

counts and also ran three of the counts consecutively, for a total of 300 months. The

court failed to enter written findings and conclusions supporting its exceptional sentence.

Fulkerson appealed. We held, in part, that the record failed to satisfy the SRA’s1

requirement of written findings of fact and conclusions of law and remanded the case “for

entry of written findings of fact and conclusions of law.” Clerk’s Papers (CP) at 142.

On remand, the sentencing court held a hearing pursuant to our mandate and

remand order. At the hearing, the State presented the court with a draft of proposed

findings and conclusions justifying its exceptional sentence. Before signing the proposed

findings and conclusions, the court reiterated that its “rationale” from the sentencing

1 Sentencing Reform Act of 1981, chapter 9.94A RCW.

3 No. 40600-8-III State v. Fulkerson

hearing had not changed. Following the hearing, the court filed its written findings and

conclusions. The court found that the jury returned the special verdicts described above

and concluded based on those aggravating circumstances that “there are substantial and

compelling reasons justifying an exceptional sentence in this case pursuant to RCW

9.94A.535.” CP at 145.

Fulkerson timely appeals.

ANALYSIS

1. SUBSTANTIAL AND COMPELLING REASONS JUSTIFYING AN EXCEPTIONAL SENTENCE

Fulkerson argues his exceptional sentence violates the Sixth and Fourteenth

Amendments because the jury did not find that each aggravating factor constituted a

“substantial and compelling” reason to impose an exceptional sentence. He contends

this determination is a factual finding that must be made by a jury, not the sentencing

judge, relying primarily on a United States Supreme Court case Hurst v. Florida.2 We

disagree and continue to follow our prior decision on this exact issue.

The Sixth Amendment provides criminal defendants the right to a jury trial. This

right, in conjunction with the due process clause of the Fourteenth Amendment, requires

that each element of a crime be proved to a jury beyond a reasonable doubt. Alleyne v.

United States, 570 U.S. 99, 104, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (plurality

2 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).

4 No. 40600-8-III State v. Fulkerson

opinion). Consistent with these rights, “any fact that ‘expose[s] the defendant to a greater

punishment than that authorized by the jury’s guilty verdict’ is an ‘element’ that must be

submitted to a jury.” Hurst, 577 U.S. at 97 (alteration in original) (quoting Apprendi v.

New Jersey, 530 U.S. 466, 494, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).

Under Washington’s SRA, imposition of an exceptional sentence above the

standard range involves two distinct statutory steps. State v. Johnson, 29 Wn. App. 2d

401, 425, 540 P.3d 831, review denied, 2 Wn.3d 1035, 547 P.3d 899 (2024). First, the

jury must unanimously find beyond a reasonable doubt the existence of one or more

statutory aggravating factors alleged by the State. See RCW 9.94A.537(3). Second, if

the jury has made such a finding, the sentencing court may impose an exceptional

sentence “if it finds, considering the purposes of [the SRA], that the facts found are

substantial and compelling reasons justifying an exceptional sentence.” RCW

9.94A.537(6); RCW 9.94A.535.

“The only permissible ‘finding of fact’ by a sentencing judge on an exceptional

sentence is to confirm that the jury has entered by special verdict its finding that an

aggravating circumstance has been prove[d] beyond a reasonable doubt.” State v. Sage, 1

Wn. App. 2d 685, 709, 407 P.3d 359 (2017). “Then it is up to the judge to make the

legal, not factual, determination whether those aggravating circumstances are sufficiently

substantial and compelling to warrant an exceptional sentence.” Id. (emphasis added). If

the court concludes that an exceptional sentence is justified, it must enter written findings

5 No. 40600-8-III State v. Fulkerson

of fact and conclusions of law. RCW 9.94A.535; see also State v. Friedlund, 182 Wn.2d

388, 394, 341 P.3d 280 (2015).

We review this issue de novo. See State v. Dyson, 189 Wn. App. 215, 224, 360

P.3d 25 (2015).

Fulkerson contends the determination of whether there are substantial and

compelling reasons to impose an exceptional sentence is a factual finding that must be

determined by the jury. However, Sage squarely rejects this exact argument.

In Sage, the jury returned special verdicts finding aggravating circumstances

beyond a reasonable doubt. 1 Wn. App. 2d at 709. At sentencing, the court relied on

those verdicts and the evidence in support of those verdicts to conclude that substantial

and compelling reasons justified an exceptional sentence. Id. at 709-10. On appeal, the

defendant argued—just as Fulkerson does here—that determining whether an aggravating

circumstance is substantial and compelling necessarily involves factual questions. Id. at

708.

Division One disagreed, explaining that Washington courts have consistently held

that the substantial and compelling determination is a legal conclusion derived from facts

found by the jury. See id. Accordingly, Division One held that “the trial court properly

analyzed and articulated the basis for the exceptional sentence without engaging in

prohibited fact finding.” Id. at 710.

6 No. 40600-8-III State v. Fulkerson

Since Sage, the remaining divisions of this court have adopted and applied its

reasoning to the same issue. E.g., State v. Guevara, No. 34636-6-III, slip op. at 6-8,

(Wash. Ct. App. Mar. 6, 2018) (unpublished), https://www.courts.wa.gov/opinions/

pdf/346366_unp.pdf; In re Personal Restraint of Ferrer, No. 53802-4-II, slip op. at 13-

18, (Wash. Ct. App. Dec. 14, 2021) (unpublished), https://www.courts.wa.gov/

opinions/pdf/D2%2053802-4-II%20Unpublished%20Opinion.pdf; see also Johnson, 29

Wn. App. 2d 401 (Division One reaffirming its decision and reasoning in Sage.). We

continue to adhere to our prior decisions and reasoning on this issue.

Here, the trial court entered written findings confirming that the jury, by special

verdict, found the aggravating circumstances beyond a reasonable doubt. The court then

concluded that those aggravating circumstances were sufficiently substantial and

compelling to justify an exceptional sentence. Under our established case law, this is all

that was required. The trial court therefore did not err.

Fulkerson, like the defendant in Sage, relies on Hurst to support his argument. See

Sage, 1 Wn. App. 2d at 710 n.86. He contends the Florida death penalty sentencing

scheme deemed unconstitutional by the United States Supreme Court mirrors the SRA.

But, for the same reasons the Sage court rejected this argument, we likewise reject it:

In Hurst, the Supreme Court held Florida’s death penalty procedure violated the defendant’s Sixth Amendment right to a jury trial because the jury’s findings of aggravating factors were advisory, resulting in prohibited fact finding by the judge. But the Florida statute at issue expressly state [sic] that the jury findings were “advisory.” Fla. Stat. § 921.141 (2004).

7 No. 40600-8-III State v. Fulkerson

By contrast, under Washington procedure here, the jury exclusively resolves the factual question whether the aggravating circumstances have been proven beyond a reasonable doubt.

Id.

Fulkerson briefly relies on Justice Scalia’s concurrence in Ring v. Arizona, arguing

that our inquiry should turn on the effect of the sentencing determination rather than its

label. 536 U.S. 584, 610, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) (Scalia, J.,

concurring)). But a concurrence does not bind this court. Moreover, Fulkerson provides

no other discussion or analysis of Ring or its applicability to this case. “Passing treatment

of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”

Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).

In his reply brief, Fulkerson also invokes Erlinger v. United States3 in support of

his argument. But this court does not consider any argument raised for the first time in

the reply brief. In re Marriage of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990). In any

event, Erlinger is inapposite. The court held that the determination of whether prior

offenses occurred on different occasions was a question for the jury. Erlinger, 602 U.S.

at 834. Furthermore, the court clarified that its holding was limited to the occasions

inquiry. Id. at 835. Here, Fulkerson’s argument does not fall within Erlinger’s limited

holding.

3 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024).

8 No. 40600-8-III State v. Fulkerson

The trial court did not engage in impermissible fact-finding and therefore did not

violate Fulkerson’s Sixth and Fourteenth Amendment rights.

2. COMPLIANCE WITH MANDATE

Fulkerson argues the trial court failed to comply with this court’s prior remand

order because it did not conduct a new sentencing hearing and merely signed State-

drafted findings that, in his view, were conclusory. We disagree.

In the prior appeal, we remanded the case “for entry of written findings of fact and

conclusions of law.” CP at 142. Our decision did not direct the trial court to conduct a

new sentencing hearing, take additional evidence, or reweigh the aggravating factors.

Rather, it simply directed the trial court to reduce its sentencing rationale to writing as

required by RCW 9.94A.535.

On remand, the trial court held a hearing, reiterated that its sentencing rationale

had not changed, and entered written findings and conclusions stating that the jury had

found the aggravating factors beyond a reasonable doubt and that those aggravators

constituted substantial and compelling reasons justifying an exceptional sentence under

RCW 9.94A.535. These written findings directly addressed the deficiencies identified in

our prior decision and complied with the scope of the remand.

9 No. 40600-8-III State v. Fulkerson

The trial court complied with this court’s prior decision and remand order.

Affirmed.

A majority of the panel has determined 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.

_________________________________ Staab, C.J.

WE CONCUR:

_________________________________ Lawrence-Berrey, J.

_________________________________ Cooney, J.