Filed Washington State Court of Appeals Division Two
October 22, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58306-2-II
Respondent,
v. UNPUBLISHED OPINION
OWEN THOMAS BECKEY,
Appellant.
MAXA, J. – Owen Beckey appeals his sentence for six felony convictions. The trial court
imposed sentences at the top of the standard range plus eight month exceptional sentences for
each of these convictions, based in part on the aggravating factor of prior unscored
misdemeanors resulting in a presumptive sentence that is “clearly too lenient” under RCW
9.94A.535(2)(b). Two of the convictions – violation of a domestic violence protection order and
third degree rape – were for class C felonies, which have a statutory maximum sentence of 60
months. Including the exceptional sentences, the trial court imposed 68 month sentences for
those two convictions.
Beckey argues, and the State concedes, that (1) his sentences for two class C felonies
exceeded the statutory maximum once the exceptional sentences were imposed, (2) the trial court
engaged in impermissible judicial factfinding when imposing exceptional sentences based on the
“clearly too lenient” aggravating factor without a jury determination, and (3) the crime victim No. 58306-2-II
penalty assessment (VPA) and community custody supervision fees imposed as legal financial
obligations no longer can be imposed under recent statutory amendments.
We accept the State’s concessions. Because the record is unclear as to whether the trial
court would have sentenced Beckey to the same sentence without the invalid aggravating factor,
remand for resentencing is required. Accordingly, we vacate Beckey’s felony sentences, and
remand to the trial court for resentencing consistent with this opinion.
FACTS
In March 2022, the State charged Beckey with 13 counts of various crimes related to a
domestic incident with a former partner. The jury convicted Beckey of six felonies and four
misdemeanors.1 The jury found that there were domestic violence aggravating factors for four of
the felonies. Other aggravating factors were not submitted to the jury.
At sentencing, the State sought sentence enhancements for the domestic violence
aggravating factor and the aggravating factor that Beckey’s unscored misdemeanor criminal
history would result in a presumptive sentence that was “clearly too lenient” under state
sentencing guidelines.
The trial court imposed sentences at the top of the standard range for each of the six
felony convictions, and then added eight month exceptional sentences for each felony. The court
stated that the exceptional sentences were based on aggravating factors found by both the jury
and the court.
Two of the convictions – the violation of a felony domestic violence court order
conviction and the third degree rape conviction – involved class C felonies. Including the
exceptional sentences, the trial court sentenced Beckey to 68 months each for these convictions.
1 Beckey does not appeal his sentences for the four misdemeanors.
2 No. 58306-2-II
The trial court assessed a $250 jury demand fee, a $500 victim penalty assessment and
monthly community custody supervision fee in Beckey’s judgment and sentence.
Beckey appeals his sentences for the six felonies.
ANALYSIS
A. LENGTH OF SENTENCE FOR CLASS C FELONIES
Beckey argues, and the State concedes, that the trial court’s sentences for the felony
violation of a domestic violence court order conviction and the third degree rape conviction
exceeded the statutory maximum. We agree.
A trial court errs when it imposes a total term of confinement and community custody
exceeding the statutory maximum. State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012).
Felony violation of a domestic violence court order and third degree rape both are class C
felonies. Former RCW 26.50.110(4) (2019); RCW 9A.44.060(2). Class C felonies carry a
statutory maximum sentence of 60 months in confinement. RCW 9A.20.021(1)(c). A court
cannot impose a sentence greater than the statutory maximum even if the jury finds aggravating
factors that would permit greater punishment. RCW 9.94A.537(6).
The jury convicted Beckey of both felony violation of a domestic violence court order
and third degree rape. His maximum sentence for these felonies was 60 months for each count,
but the trial court imposed a sentence of 68 months for each conviction once the exceptional
sentences were included. We accept the State’s concession and hold that the trial court erred in
imposing 68 month sentences for the felony violation of a domestic violence court order
conviction and the third degree rape conviction.
3 No. 58306-2-II
B. EXCEPTIONAL SENTENCE BASED ON RCW 9.94A.535(2)(b)
Beckey argues that the trial court erred when the court, rather than the jury, found that
Beckey’s prior unscored criminal history would result in a presumptive sentence that was
“clearly too lenient” under RCW 9.94A.535(2)(b). The State concedes that this was error
because even though the jury found another aggravating factor, the record is unclear which
aggravating factor the trial court used to sentence Beckey for each felony. We are constrained to
agree.2
RCW 9.94A.535(2)(b) permits a sentencing court to impose an exceptional sentence
when it determines that “[t]he defendant’s prior unscored misdemeanor or prior unscored foreign
criminal history results in a presumptive sentence that is clearly too lenient.” Notwithstanding
this statutory language, Beckey argues that the use of the RCW 9.94A.535(2)(b) aggravating
factor to impose an exceptional sentence must be based on a jury finding that the presumptive
sentence is clearly too lenient.
The Sixth Amendment right to a trial by jury requires that any fact that increases the
penalty for a crime must be proved to a jury beyond a reasonable doubt. State v. Alvarado, 164
Wn.2d 556, 563, 192 P.3d 345 (2008); see also Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In State v. Saltz, Division Three of this court held that
whether a presumptive sentence due to unscored misdemeanors is “clearly too lenient” under
RCW 9.94A.535
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Filed Washington State Court of Appeals Division Two
October 22, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58306-2-II
Respondent,
v. UNPUBLISHED OPINION
OWEN THOMAS BECKEY,
Appellant.
MAXA, J. – Owen Beckey appeals his sentence for six felony convictions. The trial court
imposed sentences at the top of the standard range plus eight month exceptional sentences for
each of these convictions, based in part on the aggravating factor of prior unscored
misdemeanors resulting in a presumptive sentence that is “clearly too lenient” under RCW
9.94A.535(2)(b). Two of the convictions – violation of a domestic violence protection order and
third degree rape – were for class C felonies, which have a statutory maximum sentence of 60
months. Including the exceptional sentences, the trial court imposed 68 month sentences for
those two convictions.
Beckey argues, and the State concedes, that (1) his sentences for two class C felonies
exceeded the statutory maximum once the exceptional sentences were imposed, (2) the trial court
engaged in impermissible judicial factfinding when imposing exceptional sentences based on the
“clearly too lenient” aggravating factor without a jury determination, and (3) the crime victim No. 58306-2-II
penalty assessment (VPA) and community custody supervision fees imposed as legal financial
obligations no longer can be imposed under recent statutory amendments.
We accept the State’s concessions. Because the record is unclear as to whether the trial
court would have sentenced Beckey to the same sentence without the invalid aggravating factor,
remand for resentencing is required. Accordingly, we vacate Beckey’s felony sentences, and
remand to the trial court for resentencing consistent with this opinion.
FACTS
In March 2022, the State charged Beckey with 13 counts of various crimes related to a
domestic incident with a former partner. The jury convicted Beckey of six felonies and four
misdemeanors.1 The jury found that there were domestic violence aggravating factors for four of
the felonies. Other aggravating factors were not submitted to the jury.
At sentencing, the State sought sentence enhancements for the domestic violence
aggravating factor and the aggravating factor that Beckey’s unscored misdemeanor criminal
history would result in a presumptive sentence that was “clearly too lenient” under state
sentencing guidelines.
The trial court imposed sentences at the top of the standard range for each of the six
felony convictions, and then added eight month exceptional sentences for each felony. The court
stated that the exceptional sentences were based on aggravating factors found by both the jury
and the court.
Two of the convictions – the violation of a felony domestic violence court order
conviction and the third degree rape conviction – involved class C felonies. Including the
exceptional sentences, the trial court sentenced Beckey to 68 months each for these convictions.
1 Beckey does not appeal his sentences for the four misdemeanors.
2 No. 58306-2-II
The trial court assessed a $250 jury demand fee, a $500 victim penalty assessment and
monthly community custody supervision fee in Beckey’s judgment and sentence.
Beckey appeals his sentences for the six felonies.
ANALYSIS
A. LENGTH OF SENTENCE FOR CLASS C FELONIES
Beckey argues, and the State concedes, that the trial court’s sentences for the felony
violation of a domestic violence court order conviction and the third degree rape conviction
exceeded the statutory maximum. We agree.
A trial court errs when it imposes a total term of confinement and community custody
exceeding the statutory maximum. State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012).
Felony violation of a domestic violence court order and third degree rape both are class C
felonies. Former RCW 26.50.110(4) (2019); RCW 9A.44.060(2). Class C felonies carry a
statutory maximum sentence of 60 months in confinement. RCW 9A.20.021(1)(c). A court
cannot impose a sentence greater than the statutory maximum even if the jury finds aggravating
factors that would permit greater punishment. RCW 9.94A.537(6).
The jury convicted Beckey of both felony violation of a domestic violence court order
and third degree rape. His maximum sentence for these felonies was 60 months for each count,
but the trial court imposed a sentence of 68 months for each conviction once the exceptional
sentences were included. We accept the State’s concession and hold that the trial court erred in
imposing 68 month sentences for the felony violation of a domestic violence court order
conviction and the third degree rape conviction.
3 No. 58306-2-II
B. EXCEPTIONAL SENTENCE BASED ON RCW 9.94A.535(2)(b)
Beckey argues that the trial court erred when the court, rather than the jury, found that
Beckey’s prior unscored criminal history would result in a presumptive sentence that was
“clearly too lenient” under RCW 9.94A.535(2)(b). The State concedes that this was error
because even though the jury found another aggravating factor, the record is unclear which
aggravating factor the trial court used to sentence Beckey for each felony. We are constrained to
agree.2
RCW 9.94A.535(2)(b) permits a sentencing court to impose an exceptional sentence
when it determines that “[t]he defendant’s prior unscored misdemeanor or prior unscored foreign
criminal history results in a presumptive sentence that is clearly too lenient.” Notwithstanding
this statutory language, Beckey argues that the use of the RCW 9.94A.535(2)(b) aggravating
factor to impose an exceptional sentence must be based on a jury finding that the presumptive
sentence is clearly too lenient.
The Sixth Amendment right to a trial by jury requires that any fact that increases the
penalty for a crime must be proved to a jury beyond a reasonable doubt. State v. Alvarado, 164
Wn.2d 556, 563, 192 P.3d 345 (2008); see also Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In State v. Saltz, Division Three of this court held that
whether a presumptive sentence due to unscored misdemeanors is “clearly too lenient” under
RCW 9.94A.535(2)(b) is a factual question for a jury to determine. 137 Wn. App. 576, 583-84,
2 Beckey argues in his opening brief that the entire exceptional sentencing procedure is unconstitutional under the Sixth and Fourteenth Amendments because it permits judicial factfinding for sentencing enhancements. However, in his reply brief, Beckey concedes that we can remand for resentencing without addressing his broad constitutional claim because the record is unclear that the trial court would have imposed an identical sentence without the error addressed in this opinion. Because we are remanding for resentencing, we decline to reach this broad constitutional argument.
4 No. 58306-2-II
154 P.3d 282 (2007). Saltz relied on the Supreme Court’s holding that that a different
aggravating factor, which also contains “clearly too lenient” language, requires a jury
determination. State v. Hughes, 154 Wn.2d 118, 140, 110 P.3d 192 (2005). This court followed
Hughes in State v. Eller, 29 Wn. App. 2d 537, 544-45, 541 P.3d 1001 (2024) (addressing RCW
9.94A.535(2)(d)).
We believe that the holding in Hughes does not make sense. Whether a presumptive
sentence is “clearly too lenient” necessarily involves judicial judgment, not jury factfinding. The
jury simply is not equipped to make this determination. However, based on Hughes, we are
constrained to conclude that the trial court erred in determining that the RCW 9.94A.535(2)(b)
aggravating factor applied without a jury finding.
We can affirm an exceptional sentence based on multiple aggravating factors even though
one of the aggravating factors is invalid. State v. Weller, 185 Wn. App. 913, 930, 344 P.3d 695
(2015). Where an appellate court overturns an aggravating factor “ ‘but is satisfied that the trial
court would have imposed the same sentence based upon a factor or factors that are upheld, it
may uphold the exceptional sentence rather than remanding for resentencing.’ ” Id. (quoting
State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003)). This rule often applies when the
trial court expressly states that it would have imposed the same exceptional sentence based any
single aggravating factor. Weller, 185 Wn. App. at 930.
Here, the judgment and sentence states that both the trial court and the jury found
aggravating factors. But the trial court did not specifically state which aggravating factor applied
to which exceptional sentence. Nor did it state that it would impose the same exceptional
sentences based on each aggravating factor standing alone. Therefore, we cannot affirm the
exceptional sentences based on the valid aggravating factors.
5 No. 58306-2-II
We accept the State’s concession and hold that the trial court erred in imposing
exceptional sentences for the felony convictions based in part on the “clearly too lenient”
aggravating factor in RCW 9.94A.535(2)(b).
C. LEGAL FINANCIAL OBLIGATIONS
1. Crime Victim Penalty Assessment
Beckey argues, and the State concedes, the $500 VPA no longer can be imposed under
RCW 7.68.035(4). We agree.
Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the VPA on
indigent defendants as defined in RCW 10.01.160(3). See State v. Ellis, 27 Wn. App. 2d 1, 16,
530 P.3d 1048 (2023). For purposes of RCW 10.01.160(3), a defendant is indigent if they meet
the criteria in RCW 10.101.010(3). Although this amendment took effect after Beckey’s
sentencing, it applies to cases pending on appeal. Id.
The trial court found that Beckey was indigent under RCW 10.101.010(3). Accordingly,
we agree that at resentencing the trial court should not impose the $500 VPA.
2. Community Custody Supervision Fee
Beckey argues, and the State concedes, community custody supervision fees no longer
can be imposed under RCW 9.94A.703. We agree.
In 2022, the legislature eliminated trial courts’ ability to impose community custody
supervision fees as a condition of community custody. See LAWS OF 2022, ch. 29, § 7. RCW
9.94A.703, which dictates the conditions of community custody, no longer allows for the
imposition of community custody supervision fees on convicted defendants.
6 No. 58306-2-II
The trial court sentenced Beckey to pay a monthly community custody supervision fee in
May 2023. The State concedes this was error. Accordingly, we agree that at resentencing the
trial court should not impose community custody supervision fees.
3. Jury Demand Fee
The trial court imposed a $250 jury demand fee. At resentencing, the trial court should
reconsider imposition of this fee in light of RCW 10.46.190.
CONCLUSION
We vacate Beckey’s felony sentences and remand to the trial court for resentencing
consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
GLASGOW, J.
PRICE, J.