State v. Powell

Stephens, J.

¶34 (concurring) — I concur in the result reached by the lead opinion because I believe RCW *6899.94A.537(2) provides a constitutionally permissible means for a trial court to impanel a jury for purposes of resentencing. I write separately, however, because the lead opinion is mistaken in its interpretation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The lead opinion interprets Blakely to require that aggravating factors be proved to the jury but not that they be charged in the information. Lead opinion at 684.1 disagree. Any facts justifying a sentence above an offense’s standard sentencing range are functionally equivalent to elements of the crime. Blakely, 542 U.S. at 303; Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Such facts must be found by a jury beyond reasonable doubt. Blakely, 542 U.S. at 301.

¶35 As Blakely and Apprendi interpret it, the right to a jury trial is motivated by “two longstanding tenets of common-law criminal jurisprudence”: that the truth of the State’s charge against a defendant must be scrutinized by a jury and that a charge omitting “ ‘any particular fact which the law makes essential to the punishment is ... no accusation’ ” at all. Id. at 301-02 (alteration in original) (quoting 1 Joel Prentiss Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872)). To the extent that aggravating factors are “ £fact[s] . . . essential to the punishment’ ” when they support an upward departure, they must be part of the State’s formal “ ‘accusation’ ” or information. Id. at 301-02 & n.5 (quoting 1 Bishop, supra, § 87, at 55); accord United States v. Booker, 543 U.S. 220, 239, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) (Stevens, J., majority in part) (interpreting trial by jury “ ‘to require that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours’ ” (alteration in original) (quoting Apprendi, 530 U.S. at 477)). The lead opinion’s opinion that aggravating factors are not strictly elements and thus need not be included in the information misses the motivating premise behind the jury trial right. See Blakely, 542 U.S. at 306 *690(noting that the jury trial right does not turn on the legislative decision to label aggravating factors as “elements” or “sentencing factors”). And since the requirement that aggravating factors be charged in the information inheres in the Sixth Amendment jury trial right (not Fifth Amendment due process as discussed by the lead opinion), it applies to the states and binds us in this case. I therefore agree with the dissent and would hold that the State must charge aggravating factors in the information and prove them to a jury in order to obtain an enhanced sentence. For post -Blakely cases, this is the rule.

¶36 However, I cannot agree with the dissent as to the consequence for cases such as this, where an enhanced sentence is invalidated under Blakely and resentencing is necessary. Under the dissent’s reasoning, it seems impossible for the legislature to provide a resentencing procedure that meets Blakely’s constitutional mandate. The problem in Mr. Powell’s case is that certain factors had to be charged in the information but were not. The State cannot go back in time to amend the original information, and amending it now would require retrial on the underlying offense, which was already proved to the jury and admits of no constitutional defect. The Constitution does not require the impossible.

¶37 Blakely mandates formal notice and a jury trial on the aggravating factor in addition to the underlying offense, and that is exactly what the legislature set out to provide with the 2007 amendment to ROW 9.94A.537. See Laws of 2007, ch. 205, § 1 (setting out a statement of purpose). This procedure respects the jury trial right as understood in Blakely. When the legislature’s intended result serves the goals underlying a newly articulated constitutional protection, its options for how to satisfy the constitutional requirement should not be limited to retrial in full or dismissal in full. I see no reason why Blakely should bar the legislature’s interim procedure for jury sentencing in cases that had already been tried when Blakely was decided. And, nothing in this case implicates due process or double *691jeopardy concerns that would bar resentencing this defendant following notice of the aggravating factors that the State will seek to prove at resentencing and fact finding by a jury properly impaneled under RCW 9.94A.537(2).3

¶38 For these reasons, I would affirm the court below.

C. Johnson, J., concurs with Stephens, J.

I do not understand the lead opinion to take any position on whether double jeopardy may bar resentencing in other factual settings not before us in this case. I also take no position.