State v. Vance

142 Wash. App. 398
CourtCourt of Appeals of Washington
DecidedJanuary 7, 2008
DocketNo. 55364-0-I
StatusPublished
Cited by4 cases

This text of 142 Wash. App. 398 (State v. Vance) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vance, 142 Wash. App. 398 (Wash. Ct. App. 2008).

Opinion

¶1 — When the superior court imposes consecutive sentences of confinement upon a defendant who has been convicted of multiple felonies that are not defined as serious violent offenses, it imposes exceptional sentences. Such exceptional sentences were imposed in this case. These sentences were premised upon the trial court’s determination that the imposition of concurrent sentences would result in punishment that was clearly too lenient. Because the United States Constitution requires that such [402]*402a determination be made by a jury, rather than by the sentencing judge, and because no procedure existed at the time of Robert Vance’s convictions for his jury to make such a finding, we reverse the challenged sentences, order them vacated, and remand the case to the trial court with directions that standard range sentences be imposed upon him.

Dwyer, J.

[402]*402¶2 This case has had a long and eventful life. In July 2003, a jury convicted Robert Vance of three counts of child molestation in the first degree, two counts of child molestation in the second degree, and three counts of communication with a minor for immoral purposes. At the subsequent sentencing hearing the court determined that Vance was a persistent offender, as defined in Washington’s “two-strikes law,”1 and sentenced him to serve a term of life imprisonment without the possibility of early release. On direct appeal, we reversed the sentence and remanded the matter to the trial court for resentencing.2 At Vance’s second sentencing hearing, held on October 29, 2004, the trial court found that the imposition of concurrent sentences for his three convictions of child molestation in the first degree, the presumptive sentencing consequence pur[403]*403suant to RCW 9.94A.589,3 would result in a sentence that was clearly too lenient. Thus, pursuant to former RCW 9.94A.535(2)(i)(2003),4 the court imposed consecutive sentences for these offenses.5 However, child molestation in the first degree is not established by statute as a serious violent offense. See RCW 9.94A.030(41).6

¶3 Vance again appealed, this time contending that by imposing consecutive sentences, the sentencing judge had imposed exceptional sentences upon him in violation of [404]*404Vance’s Sixth Amendment right to trial by jury as discussed in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We affirmed.7 Our Supreme Court subsequently granted review of that decision and remanded the case to us for reconsideration in light of its decision in In re Personal Restraint of VanDelft, 158 Wn.2d 731, 147 P.3d 573 (2006), cert. denied, 127 S. Ct. 2876 (2007). State v. Vance, 159 Wn.2d 1011 (2007).

¶4 Before us now for the third time, on direct appeal from the most recent sentences imposed based on the jury’s 2003 verdicts, Vance again contends that the exceptional sentences violate his right to trial by jury as set forth in Blakely because the sentencing judge, rather than the jury, conducted the fact finding necessary to justify the imposition of exceptional sentences.8 Based on our Supreme Court’s holding in VanDelft, we agree.

¶5 In VanDelft, the sentencing judge imposed an exceptional sentence by ordering VanDelft’s sentence for kidnapping in the second degree, committed with sexual motivation, to run consecutively to his other sentences. 158 Wn.2d at 735. RCW 9.94A.030(41) does not include kidnapping in the second degree as a serious violent offense. Sentences for felonies not established as serious violent offenses “shall be served concurrently.” RCW 9.94A-.589(1)(a).9 Thus, consecutive sentences for those felonies not established as serious violent offenses “may only be imposed under the exceptional sentence provisions of RCW 9.94A.535.” RCW 9.94A.589(1)(a).

[405]*405¶6 Former RCW 9.94A.535 (2002) set forth those factors that the legislature allowed a sentencing court to consider in determining whether to impose an exceptional sentence. At the time VanDelft was sentenced, one of those factors was that “ £[t]he operation 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.’ ” VanDelft, 158 Wn.2d at 739 (alteration in original) (quoting former RCW 9.94A.535(2)(i)). The sentencing judge premised the imposition of exceptional sentences on the judge’s finding that the imposition of concurrent sentences would result in punishment that was “clearly too lenient,” given VanDelft’s high offender score. VanDelft, 158 Wn.2d at 739-40. However, our Supreme Court held that the sentencing judge erred by making this finding, VanDelft, 158 Wn.2d at 743, and ordered that the sentence for the kidnapping in the second degree conviction be vacated and the matter returned to the trial court for resentencing, with directions that the sentence for the kidnapping conviction be imposed to run concurrently with the sentences on the other counts. VanDelft, 158 Wn.2d at 743. In so holding, the court reiterated its holding in State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled in part by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), that “ £[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 (alteration in original) (quoting Hughes, 154 Wn.2d at 140).10

¶7 We agree with Vance that VanDelft is indistinguishable from his case. Child molestation in the first degree is not statutorily established as a serious violent offense. The [406]*406challenged sentences for each of the three counts of this offense are statutorily presumed to run concurrently.

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Related

State v. McNeal
231 P.3d 1266 (Court of Appeals of Washington, 2010)
State v. Vance
230 P.3d 1055 (Washington Supreme Court, 2010)

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Bluebook (online)
142 Wash. App. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vance-washctapp-2008.