State v. Simms

250 P.3d 107
CourtWashington Supreme Court
DecidedApril 7, 2011
Docket83826-7
StatusPublished
Cited by5 cases

This text of 250 P.3d 107 (State v. Simms) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Simms, 250 P.3d 107 (Wash. 2011).

Opinion

250 P.3d 107 (2011)

STATE of Washington, Respondent,
v.
Daniel J. SIMMS a/k/a Terry Jay Weeks, Petitioner.

No. 83826-7.

Supreme Court of Washington, En Banc.

Argued January 20, 2011.
Decided April 7, 2011.

*108 Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Petitioner.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 Daniel Simms robbed John Jacobs at gunpoint on February 18, 2006, assaulting Ron Cogswell and Grace Astad with his firearm in the process. The State charged Simms with one count of robbery in the first degree, two counts of assault in the second degree, and unlawful possession of a firearm in the first degree. Because Simms had used a firearm, the State also charged Simms with firearm enhancements for the robbery and assault counts.

¶ 2 The jury convicted Simms as charged, and Simms was sentenced on July 27, 2006. Because Simms had been convicted of assault in the second degree with a firearm enhancement in 2000, the court doubled the firearm enhancements as required by RCW 9.94A.533(3)(d), adding 22 years to his sentence.[1] We affirm Simms' conviction and sentence, including the firearm enhancements.

ADDITIONAL FACTS AND PROCEDURAL HISTORY

A. The Information

¶ 3 The State charged Simms by information on April 5, 2006. In count I, the State alleged that Simms was armed with a firearm when he robbed Mr. Jacobs. With respect to the firearm enhancements, the information specifically alleged:

And I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington further do accuse the defendant DANIEL J. SIMMS AKA TERRY JAY WEEKS at said time of being armed with a handgun, a firearm as defined in RCW 9.41.010, under the authority of RCW 9.94A.510(3).

Clerk's Papers (CP) at 1.[2]

¶ 4 The State also alleged in counts II and III that Simms was armed with a firearm when he assaulted Mr. Cogswell and Ms. Astad. The same language referenced above was alleged in the information for these charges.

¶ 5 In count IV, the State accused Simms of the crime of unlawful possession of a firearm in the first degree, "a crime of the same or similar character and based on the same conduct as another crime charged herein, which crimes were part of a common scheme or plan." CP at 3. The information further alleged:

That the defendant DANIEL J. SIMMS AKA TERRY JAY WEEKS . . . previously having been convicted in King County Superior Court, Washington of the crime of Assault in the Second Degree, a serious offense as defined in RCW 9.41.010, knowingly did own, have in his possession, or have in his control, a handgun, a firearm as defined in RCW 9.41.010.

Id. (emphasis added).[3]

B. The Trial Court

¶ 6 During its case-in-chief, the State introduced a certified copy of Simms' 2000 judgment *109 and sentence for assault in the second degree while armed with a firearm. Additionally, the special verdict forms for the robbery count and the two counts of assault instructed the jury, "`The State must prove beyond a reasonable doubt that the defendant was armed with a firearm. . . .'" State v. Simms, 151 Wash.App. 677, 683, 214 P.3d 919 (2009). The jury found that the State met its burden on each count.

¶ 7 Simms was convicted as charged. With an offender score of 14, the court imposed a low-end standard sentence of 129 months for the robbery conviction, a low-end concurrent sentence of 63 months for the two assault convictions, and 87 months for the unlawful possession of a firearm. The court doubled the mandatory 60 month firearm enhancement for the robbery conviction and the mandatory 36 month firearm enhancement for each of the two assault convictions as required by RCW 9.94A.533(3)(d). This resulted in a firearm enhancement of 120 months for the robbery conviction and 72 months for each of the assault convictions, for a total of 264 months, or 22 years. Simms appealed.

C. The Court of Appeals

¶ 8 On appeal, Simms did not challenge his convictions—only the doubling provision of the firearm enhancement statute, RCW 9.94A.533(3)(d). The Court of Appeals affirmed,[4] concluding that the trial court's decision to double the length of confinement for the firearm enhancements under RCW 9.94A.533(3)(d) is grounded in state and federal case law. Simms, 151 Wash.App. at 684-89, 214 P.3d 919 (citing State v. Recuenco, 163 Wash.2d 428, 180 P.3d 1276 (2008) (Recuenco III); State v. Crawford, 159 Wash.2d 86, 147 P.3d 1288 (2006); State v. Smith, 150 Wash.2d 135, 141-43, 75 P.3d 934 (2003); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

D. Limited Grant of Review

¶ 9 We granted review on the limited issue of whether the State, in seeking a double firearm enhancement based on the prior imposition of a firearm enhancement, is required to allege in the information that the defendant has previously been sentenced to a firearm enhancement. The State's motion to strike an issue not raised below or accepted by this court is hereby granted. The issue is beyond the proper scope of review and was not raised or briefed on appeal. RAP 13.7(b); State v. Halstien, 122 Wash.2d 109, 130, 857 P.2d 270 (1993).

ANALYSIS

¶ 10 The crimes of robbery in the first degree and assault in the second degree fall within the mandate of RCW 9.94A.533(3)(a)-(d). RCW 9.94A.533(3) states in pertinent part:

The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender . . .

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Bluebook (online)
250 P.3d 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simms-wash-2011.