declining to find waiver in similar circumstances
How later courts described this case
- declining to find waiver in similar circumstances
- constitutionality of the sentencing statute
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State v. Hughes, 154 Wash. 2d 118 (2005)
123 Wash. App. 906, 918 (2004) (quotations and footnote omitted) overruled on other grounds by, State v. Hughes, 154 Wash. 2d 118
The opinion
Cox, C.J.
(concurring) — I concur. I agree with the majority that our statutes, governing case law, and court rules support the conclusion that trial courts have inherent power to empanel juries to try alleged aggravating sentencing circumstances. I write separately to emphasize that whether courts invoke that power is another matter, requiring careful consideration of the circumstances and the interests of justice in each case.
This is especially so in cases where sentencing was imposed before Blakely was decided. 66 When such cases are remanded for resentencing, they will likely present a myriad of challenges for the parties and the court. There will be particular difficulties in cases (like this one) in which the exceptional sentence was imposed by the court sua sponte. Harris agreed to a trial on stipulated facts, and the State agreed to make a sentencing recommendation at the low end of the standard range.
In another case argued with this one, the exceptional sentence was imposed sua sponte following a plea agreement in which the State agreed to recommend a standard range sentence. 67 In such circumstances, it is unclear what evidence can be presented to the court. Clearly, the State cannot violate its agreements.
Further, where evidence is presented, the defense may find it problematic to meet it, given that many of these cases have been under lengthy stays on appeal. It seems inevitable that other difficulties will arise in individual cases. 68
Trial judges well understand that what is discretionary is not mandatory. The fact that inherent authority exists does not mean it must be exercised in every case. I believe *930 sentencing courts should exercise caution and restraint as they take on this difficult task.
One message of Blakely is clear: The legislature must amend the Sentencing Reform Act of 1981 (SRA), chapter 9.94A ROW, to conform to constitutional requirements. As of this writing, we are unaware of any proposed legislation that deals with the situation confronting us in this and other pending cases. Specifically, we have before us an appeal following a determination of guilt in which the trial court has imposed an exceptional sentence using procedures that the United States Supreme Court subsequently held to be unconstitutional.
The Washington legislature has not yet had the opportunity to address amendments to the SRA for future cases to cure the constitutional defects articulated by the United States Supreme Court. Presumably, the legislature will carefully study the issues and enact clear, consistent, and comprehensive legislation to address the problems that Blakely identifies and the diverse ways in which they may arise. However, the trial courts and the public need immediate guidance to resolve the question of what remedies are appropriate on remand for resentencing for this case and similar cases. Thus, it is appropriate for this court to provide that guidance now.
For these reasons, and despite the issues associated with the procedures, I concur with the reasoning and result in this case.
Ellington, J., concurs with Cox, C.J.
Reconsideration denied December 8, 2004.
542 U.S. 296 , 124 S. Ct. 2531 , 159 L. Ed. 2d 403 (2004).
State v. Maestas, 124 Wn. App. 352 , 101 P.3d 426 (2004).
For example, Justice O’Connor, in her dissent in Blakely, identifies in a more general sense some of the problems that may occur at sentencings. 124 S. Ct. at 2546-47 . Neither her list nor mine is exhaustive.