State v. Vance

168 Wash. 2d 754
CourtWashington Supreme Court
DecidedMay 6, 2010
DocketNo. 81393-1
StatusPublished
Cited by46 cases

This text of 168 Wash. 2d 754 (State v. Vance) 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. Vance, 168 Wash. 2d 754 (Wash. 2010).

Opinion

Sanders, J.

¶1 In 2003 a jury convicted Robert Lee Vance of multiple counts of child molestation and communicating with a minor for immoral purposes. Vance claims the trial court’s imposition of an exceptional sentence, in the form of consecutive sentences, violated his constitutional right to trial by jury. We cannot agree. Based on recent United States Supreme Court precedent, Vance’s sentence was proper.

FACTS

¶2 In 2003 a Snohomish County jury convicted Vance of three counts of first degree child molestation, two counts of second degree child molestation, and three counts of communication with a minor for immoral purposes. Vance molested at least four different children in committing the crimes. At the time of his 2003 trial, Vance had prior convictions for first degree statutory rape and indecent liberties.

¶3 At sentencing the trial court determined Vance qualified as a persistent offender and sentenced him to life imprisonment without the possibility of early release. Vance appealed. On direct appeal the Court of Appeals reversed Vance’s life sentence and remanded for resentencing. State v. Vance, noted at 122 Wn. App. 1040, 2004 WL 1658630, 2004 Wash. App. LEXIS 1710 (per curiam).

[757]*757¶4 In 2004, at Vance’s second sentencing hearing, the trial court sentenced Vance to 198 months for each count of first degree child molestation, 116 months for each count of second degree child molestation, and 60 months for each count of communication with a minor for immoral purposes. The sentence for each crime was within the standard range, albeit at the top. The court determined concurrent sentences — which were the presumptive sanction under RCW 9.94A.589(1)(a)1 — would not adequately punish Vance for his crimes.

¶5 Child molestation and communication with a minor for immoral purposes do not qualify as serious violent offenses. See RCW 9.94A.030(41). Serious violent offenses require consecutive sentences. RCW 9.94A.589(1)(b).2 Because Vance’s crimes were not serious violent offenses, in order to impose consecutive sentences, the trial court had to impose an exceptional sentence pursuant to former RCW 9.94A.535(2) (2003). Former RCW 9.94A.535(2)(i) allowed a court to impose an exceptional sentence after finding “[t]he [758]*758operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter . . . (Emphasis added.) The trial judge found that concurrent sentences would be “clearly too lenient” and, instead, applied an exceptional consecutive sentence. The judge applied the first degree child molestation sentences consecutively, and ran the other sentences concurrently, totaling a 594-month term of imprisonment.

¶6 Vance filed another appeal. This time he asserted the trial judge’s imposition of consecutive sentences violated his Sixth Amendment right to a jury trial, as highlighted in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The Court of Appeals found no Blakely violation and affirmed Vance’s consecutive sentences. Vance, 2004 WL 1658630, 2004 Wash. App. LEXIS 1710. Vance petitioned this court for discretionary review. We remanded to the Court of Appeals for resentencing in light of our then recently decided case, In re Personal Restraint of VanDelft, 158 Wn.2d 731, 147 P.3d 573 (2006). See State v. Vance, 159 Wn.2d 1011, 152 P.3d 1032 (2007).

¶7 In VanDelft, we construed Blakely to require that a jury, not a judge, must make factual determinations supporting exceptional consecutive sentences. “ ‘[T]he conclusion that allowing a current offense to go unpunished is clearly too lenient is a factual determination that cannot be made by the trial court following Blakely.’ ” VanDelft, 158 Wn.2d at 742 (quoting State v. Hughes, 154 Wn.2d 118, 140, 110 P.3d 192 (2005), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). On remand the Court of Appeals found Vance’s circumstances to be indistinguishable from those in VanDelft. State v. Vance, 142 Wn. App. 398, 405, 174 P.3d 697 (2008) (Vance IV). “Thus, just as our Supreme Court held that the trial judge in VanDelft erred by imposing exceptional sentences based on the judge’s own factual determination, we now hold that Vance’s sentencing judge erred by doing the same.” Id. at 406. The Court of Appeals [759]*759reversed Vance’s exceptional consecutive sentences and remanded with instructions for the trial court to impose concurrent sentences within the standard range. Id. at 411-12.

¶8 In response the State sought discretionary review in this court. It filed its petition for review on March 31, 2008. After the State filed its brief, however, it became aware the United States Supreme Court had granted certiorari in Oregon v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), cert. granted, 552 U.S. 1256 (2008). Because Ice had the potential to control the instant issue, we deferred our decision whether to grant review until the Supreme Court decided Ice. The Court decided Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), on January 14, 2009. We granted permission to file supplemental briefs and, ultimately, granted review on March 31, 2009. State v. Vance, 165 Wn.2d 1036, 205 P.3d 131 (2009).

ANALYSIS

¶9 The question before us, then, is whether in light of Ice, 129 S. Ct. 711, the Sixth Amendment3 right to trial by jury requires that a jury, not a trial judge, make findings of fact to support an exceptional consecutive sentence. We review allegations of constitutional violations and questions of law de novo. In re Det. of Strand, 167 Wn.2d 180, 186, 217 P.3d 1159 (2009); State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007).

¶10 In VanDelft the trial judge found concurrent sentences would be “ ‘clearly too lenient’ ” and, accordingly, imposed exceptional consecutive sentences. VanDelft, 158 Wn.2d at 739-40.

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Bluebook (online)
168 Wash. 2d 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vance-wash-2010.