State v. Champion

140 P.3d 633
Court of Appeals of Washington·Decided October 24, 2006·No. 33476-3-II·Published·Cited by 8 cases

Opinion

140 P.3d 633 (2006)
134 Wash.App. 483

STATE of Washington, Respondent,
v.
Charles Sidney CHAMPION, Appellant.

No. 33476-3-II.

Court of Appeals of Washington, Division 2.

August 8, 2006.
As Amended October 24, 2006.

Rita Joan Griffith, Mark A. Larranaga, Walsh & Larranaga, Seattle, WA, for Appellant.

P. Grace Kingman, Tacoma, WA, for Respondent.

PENOYAR, J.

¶ 1 Charles Sidney Champion appeals his consecutive sentences for first degree assault and first degree murder, arguing that his sentences violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He also argues that his juvenile adjudications cannot be used to increase his offender score under Blakely. Because the trial court imposed consecutive sentences under RCW 9.94A.589(3), we affirm.

FACTS

¶ 2 On December 28, 2000, the State charged Champion with two counts of first degree robbery, contrary to RCW 9A.56.190 and RCW 9A.56.200(1)(a)(b); second degree assault, contrary to RCW 9A.36.021(1)(a); first degree burglary, contrary to RCW 9A.52.020(1)(b); and intimidating a witness, contrary to RCW 9A.72.110(1)(d), for events that occurred nine days earlier on December 19, 2000.

¶ 3 On March 7, 2001, Champion committed first degree murder. He was convicted and was sentenced for this charge four years later, on January 19, 2005.

¶ 4 On June 1, 2005, Champion pleaded guilty to the second degree assault charge that he committed five years earlier on December 19, 2000, and the State agreed to *634 dismiss all other charges stemming from the December 19, 2000 incident.

¶ 5 On June 17, 2005, the court sentenced Champion to 20 months, the high end of the standard range sentence, for the assault charge. The court determined that his offender score was 4.5 and used two prior juvenile convictions in Champion's offender score. The court then ran the second degree assault sentence consecutive to Champion's sentence on the first degree murder conviction. The court explicitly indicated in the judgment and sentence that the sentences were to run consecutively. The trial court made no additional factual findings to justify running the murder and assault sentences consecutively:

Champion: Your Honor, it's unclear to me then the basis the Court is finding to impose a consecutive sentence.
The Court: The basis is it's within my discretion to do so and I'm electing to do so.

Report of Proceedings (RP) 18.

ANALYSIS

CONSECUTIVE SENTENCES

¶ 6 Champion argues that his consecutive sentences violate the principle of Blakely, 542 U.S. at 296, 124 S.Ct. 2531, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely, the Supreme Court held that a defendant has a Sixth Amendment right to have a jury find beyond a reasonable doubt any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum. Blakely, 542 U.S. at 296, 124 S.Ct. 2531. Champion argues that under RCW 9.94A.589(3), the trial court was required to run his assault and murder sentences concurrently.

¶ 7 The State counters that under State v. Cubias, 155 Wash.2d 549, 120 P.3d 929 (2005), the principles of Blakely and Apprendi do not apply to consecutive sentences. Furthermore, the State argues that RCW 9.94A.589(3) does not require any additional factual findings to impose consecutive sentences and that the trial court had "total discretion" under this section to impose consecutive sentences.

¶ 8 We review constitutional challenges de novo. State v. Bradshaw, 152 Wash.2d 528, 531, 98 P.3d 1190 (2004) (citing City of Redmond v. Moore, 151 Wash.2d 664, 668, 91 P.3d 875 (2004)), cert. denied, 544 U.S. 922, 125 S.Ct. 1662 (2005). Here, the trial court imposed a consecutive sentence under RCW 9.94A.589(3). The statute states:

Subject to subsections (1)[1] and (2)[2] of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.

RCW 9.94A.589(3)(emphasis added).

¶ 9 When faced with an unambiguous statute, we derive the legislature's intent from the plain language alone. State v. Wentz, 149 Wash.2d 342, 346, 68 P.3d 282 (2003) (citing Waste Mgmt. of Seattle, Inc., v. Utils. Transp. Comm'n, 123 Wash.2d 621, 629, 869 P.2d 1034 (1994)). The language of RCW 9.94A.589(3) is clear and unambiguous and plainly allows the trial court to impose a consecutive sentence if the trial court expressly orders a consecutive sentence. No additional fact finding is necessary.

*635 ¶ 10 "A sentencing judge has unfettered discretion to impose any sentences under RCW 9.94A.400(3)[3] either concurrently with, or consecutively to, a prior sentence for multiple current offenses. Consecutive sentencing, however, must be expressly ordered." State v. Grayson, 130 Wash.App. 782, 786, 125 P.3d 169 (2005) (citing In re the Pers. Restraint of Long, 117 Wash.2d 292, 305, 815 P.2d 257 (1991)). In Grayson,

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