State v. Hughes

¶1 — Raymond Carl Hughes pleaded guilty to two sex crimes following one act of sexual intercourse with a 12-year-old girl, S.E.H., who was disabled and incapable of giving consent—rape of a child in the second degree, RCW 9A.44.076(1); and second degree rape, RCW 9A.44.050(l)(b). The admissions exposed Mr. Hughes to the terms under former RCW 9.94A.712 (2001) that required the sentencing court to order a maximum life sentence and set a minimum term. We delayed decision of the State’s appeal of the trial court’s decision that it lacked power or authority to set an exceptional minimum sentence under former RCW 9.94A-.712 until the mandate issued in State v. Clarke, 156 Wn.2d 880,134 P.3d 188 (2006). The Clarke court held that Blakely1 exceptional sentencing limitations do not apply to indeterminate minimum sentences under former RCW 9.94A.712. First, following Clarke, we grant the State’s appeal. Second, we reject Mr. Hughes’ double jeopardy contentions because we conclude the legislature intended to impose multiple punishments for the single act of sexual intercourse. Accordingly, we affirm Mr. Hughes’ convictions and remand for further proceedings.

Brown, J.

FACTS

¶2 Mr. Hughes engaged in a single act of sexual intercourse with S.E.H., a 12-year-old girl incapable of consent by reason of being physically helpless or mentally incapacitated due to cerebral palsy. He was charged with and pleaded guilty to one count of second degree child rape and one count of second degree rape. Mr. Hughes unsuccessfully moved to dismiss one conviction on double jeopardy grounds. The court declined to consider an exceptional minimum sentence under former RCW 9.94A.712 because it believed it lacked “power or authority’ to grant an exceptional sentence under Blakely. Report of Proceedings at 41. The court ordered a top-end minimum sentence of 102 months. The State appealed. Mr. Hughes cross-appealed.

ANALYSIS

A. Exceptional Sentence

¶3 The issue is whether the trial court erred in rejecting the State’s request to consider an exceptional minimum sentence under former RCW 9.94A.712. The State contends the trial court erred in applying Blakely and Apprendi2 to an indeterminate sentencing. The State is correct.

¶4 We review statutory and constitutional issues de novo. Clarke, 156 Wn.2d at 887. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The Blakely Court clarified that the “statutory maximum” for Apprendi purposes “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303. The court in Clarke then held that Blakely does not apply to indeterminate minimum sentences under former RCW 9.94A.712 that do not exceed the maximum sentence imposed.

¶5 Here, without the benefit of Clarke, the trial court considered the sentencing scheme for nonpersistent offenders in former RCW 9.94A.712. The court was required to set a maximum term (the statutory maximum term for the offense) and a minimum term, either within or outside the standard range. Former RCW 9.94A.712(3). Believing it lacked the discretion to order an exceptional sentence under Blakely, the trial court denied the State’s request for an exceptional minimum term sentence. Clarke resolved this issue for the State; the court should have considered the State’s exceptional sentencing request. A trial court may impose an exceptional minimum sentence under an indeterminate sentencing scheme when the exceptional sentence does not exceed the maximum sentence imposed. Clarke, 156 Wn.2d at 893-94.

B. Double Jeopardy

¶6 The issue is whether the trial court erred in rejecting Mr. Hughes’ motion to dismiss one conviction under double jeopardy principles. Mr. Hughes contends one conviction should result from one act of sexual intercourse.

¶7 Double jeopardy claims are questions of law that we review de novo. State v. Freeman, 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005).

¶8 The double jeopardy protections found in the United States Constitution and the Washington Constitution are coextensive. U.S. Const. amend. V.; Wash. Const. art. I, § 9; State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995). A defendant is protected against multiple punishments for the same offense, regardless of whether the sentences are imposed concurrently. Ball v. United States, 470 U.S. 856, 864-65, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985); State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979). However, multiple punishments are permissible if the legislature so intended. State v. Baldwin, 150 Wn.2d 448, 454, 78 P.3d 1005 (2003) (citing State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995)); Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).

¶9 The analytic framework for determining legislative intent for a double jeopardy claim differs somewhat from ordinary statutory interpretation. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). A clear indication of legislative intent on the face of the statute or in the legislative history that the charged crimes constitute the same offense is, of course, dispositive. State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006); Calle, 125 Wn.2d at 776-77. Absent that indication, Washington courts rely on the presumptive test for legislative intent articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Jackman, 156 Wn.2d at 746 (citing Calle, 125 Wn.2d at 778). In Washington, “[u]nder the same evidence rule, if each offense contains elements not contained in the other offense, the offenses are different and multiple convictions can stand.” Id. (citing Baldwin, 150 Wn.2d at 454). This requires a determination of “ ‘whether each provision requires proof of a fact which the other does not.’ ” Id. at 747 (internal quotation marks omitted) (quoting Baldwin, 150 Wn.2d at 455).

¶10 An individual is guilty of second degree rape of a child “when the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.076(1). An individual is guilty of second degree rape when “the person engages in sexual intercourse with another person” “[w]hen the victim is incapable of consent by reason of being physically helpless or mentally incapacitated.” RCW 9A.44.050(l)(b). The two statutes do not specify multiple punishments for the same act of intercourse. See RCW 9A.44.076, .050.

¶11 However, the two offenses are found in separate code sections and the punishments differ. Under RCW 9A.44.076(1), second degree child rape requires proof that S.E.H. was a certain tender age and Raymond Carl Hughes was a particular mature age. Under RCW 9A.44.050(l)(b), second degree rape requires a different gravamen, without limitation to her age, that S.E.H. was incapable of consent by reason of physical helplessness or mental incapacitation. Other subsections specify additional, discrete groups needing protection from preying actors, such as the developmentally disabled from health care providers, residents of facilities for the mentally disordered or chemically dependent from supervisors, and frail elder or vulnerable adults from persons with a significant relationship. Finally, proof of one offense is not required to prove the other offense or elevate the other offense into a more serious crime.

¶12 Overall, two distinct protective purposes are served: (1) protecting the very young regardless of physical or mental status and (2) protecting physically helpless or mentally incapacitated persons of any age who are incapable of protecting themselves from persons of any age. See Calle, 125 Wn.2d at 780-81. Although the faces of the relevant statutes do not specify multiple punishments, we conclude that the Blockburger presumptive test is satisfied. RCW 9A.44.050(l)(b) and RCW 9A.44.076(1) each contains one element not found in the other statute, and thus, different evidence is required for conviction. Jackman, 156 Wn.2d at 747. The trial court did not err in denying Mr. Hughes’ double jeopardy motion.

¶13 Affirmed and remanded for further proceedings consistent with this opinion.

Kulik, J., concurs.

1 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

2 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).