State v. McNeal

¶40 (concurring in part and dissenting in part) — I agree with the majority that the court erred in ruling that Blakely v. Washington, 542 U.S. 296, 301 , 124 S. Ct. 2531 , 159 L. Ed. 2d 403 (2004), did not apply to John Kevin McNeal’s resentencing. But because I agree with this holding, I disagree with the result reached by the majority. First, I note that under Blakely , the term “statutory maximum” for Apprendi 22 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.” 542 U.S. at 303 . It therefore follows that the doubling provision of former RCW 69.50.408(a) (1989) allows the trial court to double the statutory maximum (standard range) for McNeal’s second drug offense. Accordingly, the trial court’s sentence for McNeal’s drug offense was within the statutory maximum under the doubling provision and was not an exceptional sentence based on facts, other than the fact of a prior conviction, not reflected in the jury’s verdict. I am aware of our Supreme Court’s contrary holding and agree with the premise, that the legislature intended to double the statutory maximum rather than the standard range. In re Pers. Restraint of Cruz, 157 Wn.2d 83, 90 , 134 P.3d 1166 (2006). But because this definition of “statutory maximum” was expressly argued and rejected by the United States Supreme Court in Blakely, 542 U.S. at 303 , and I cannot reconcile Cruz with the holding of our nation’s highest court, I am compelled to apply the Blakely definition here.

Quinn-Brintnall, J.

¶41 Moreover, I note that interpreting the statute as doubling the statutory maximum of 5, 10, or 20 years renders it meaningless because, after Blakely , the trial *797 court lacks the authority to impose a sentence beyond the standard range based solely on the jury’s guilty finding of a second or subsequent drug offense. Thus, in order for former RCW 69.50.408(a) to have the intended effect of more seriously punishing recidivist drug offenders, aggravating factors other than prior drug offenses must be pleaded and proved to a jury beyond a reasonable doubt before the standard range would increase. To me this is an absurd result not compatible with legislative intent. State v. J.P., 149 Wn.2d 444, 450 , 69 P.3d 318 (2003); State v. Vela, 100 Wn.2d 636, 641 , 673 P.2d 185 (1983); State v. Gaines, 109 Wash. 196, 200 , 186 P. 257 (1919). Accordingly, I would hold that the statutory provision that “any person convicted of a second or subsequent [drug] offense . . . may be imprisoned for a term up to twice the term otherwise authorized” (former RCW 69.50.408(a)) means twice the standard range and that, under this interpretation, McNeal’s sentence on the drug charge was not an exceptional one. 23

¶42 I also agree with the majority’s holding that our Supreme Court has decided that a jury, rather than the sentencing court, must find exceptional sentencing factors supporting the imposition of consecutive sentences under RCW 9.94A.589(1)(a). 24 In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 743 , 147 P.3d 573 (2006), cert. denied, 127 S. Ct. 2876 (2007). And that on remand a speciallyempanelled jury can consider whether the facts the trial court previously used to justify the exceptional consecutive sentence have been proved beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S. Ct. 2348 , 147 L. Ed. 2d 435 (2000).

Because McNeal does not contest that he has prior drug convictions, error, if any, in failing to allege and prove them to a jury is clearly harmless beyond a reasonable doubt. See State v. Rudolph, 141 Wn. App. 59, 81-82 , 168 P.3d 430 (2007) (Quinn-Brintnall, J., dissenting).

Formerly RCW 9.94A.400.