State Of Washington, V Laura Lynn Hickey ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGT /
DIVISION II
STATE OF WASHINGTON, No. 43141 -6 -II
Respondent,
v.
LAURA LYNN HICKEY, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Laura Lynn Hickey appeals the exceptional sentence imposed after she
pleaded guilty to second degree murder while armed with a deadly weapon. She also stipulated to
the aggravating factor charged in the amended information that her victim was particularly
vulnerable. Hickey contends that the trial court violated her Sixth Amendment rights, as
articulated in Blakely v. Washington, 542 U. S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 ( 2004), by
making factual findings that her victim was particularly vulnerable not only because of age but
also because of drug intoxication. Because Hickey stipulated to the aggravating factor of
particular vulnerability," and admitted that her victim was particularly vulnerable because he was
a premature baby, the court' s additional finding of drug intoxication was harmless error. We
affirm the exceptional sentence and remand solely for the trial court to strike the reference to the
victim' s drug intoxication from the findings of fact supporting the exceptional sentence.
43141 -6 -II
FACTS
Hickey gave premature birth to a son in her home. She decapitated him with a knife. After
a pathologist determined that the baby had been alive at birth, the State charged Hickey with first
degree murder. The State alleged six aggravating factors, including the allegation that Hickey
knew or should have known that the victim was particularly vulnerable or incapable of resistance.
After the court entered an order finding Hickey competent to stand trial, the State made a
plea offer to amend the charge to second degree murder with the special allegation that Hickey
committed the crime while armed with a deadly weapon and with the single aggravating factor
that Hickey knew, or should have known that the victim was particularly vulnerable or incapable
of resistance. The offer provided that Hickey could argue for a standard range sentence and that
the State would be free to argue any sentence up to the statutory maximum of life in prison.
Hickey accepted the plea offer. During the plea hearing, and after Hickey waived her
constitutional rights, including her right to a jury trial, Hickey orally admitted that she intended to
kill her child, that she was armed with a deadly weapon, and that the victim was particularly
vulnerable and incapable of resistance due to his age.'
Prior to the sentencing hearing, both parties submitted sentencing memoranda to the court.
Hickey' s memorandum stated that "[ t] he facts in this case are summarized by the attached reports."
Clerk' s Papers ( CP) at 25. One of the reports, written by a psychologist, noted that both Hickey
and her victim had significant amounts of methamphetamine in their bloodstreams at the time of
the offense. The State' s memorandum included the autopsy report which stated that the baby
suffered from acute methamphetamine intoxication.
1
Her written plea statement provided merely " that victim was particularly vulnerable." CP at 14.
2
43141 -6 -II
At the sentencing hearing, the State argued for an exceptional sentence of 82 years. Hickey
asked for a low - nd
e sentence of 10 years. The trial court imposed an exceptional sentence of 30
years after stating, " The defendant has stipulated to the aggravating factor of the victim being
particularly vulnerable." Report of Proceedings ( RP) ( Feb. 22, 2012) at 18. The court noted that,
based on the facts presented at the sentencing hearing, which included the baby' s
methamphetamine addiction, it would have found another aggravating factor, i.e. deliberate
cruelty, but the law did not allow it to do so. The court recognized that aggravating factors must
be either stipulated to or found by a jury. The court then stated that the facts at least supported the
stipulated aggravating factor of "particular vulnerability." RP ( Feb. 22, 2012) at 18 - 19.
The court entered written findings of fact and conclusions of law supporting the exceptional
sentence. Its findings stated that the justification for an exceptional sentence included the fact that
t] he victim in this matter was a particularly vulnerable premature baby boy who was drug
intoxicated (methamphetamine)." CP at 455. Hickey objected to this finding. Her attorney stated,
The defendant stipulated to the aggravating circumstance of a particularly vulnerable victim. And
I would have no problem with that being the finding of fact. There are some additional aggravating
circumstances listed here the way this document is drafted that I don' t think flow from that. They
may be present in this case, but I think the additional language is unnecessary." RP ( Feb. 22, 2012)
at 22. He explained further, " Well, it goes on to say — well, first it indicates that a particularly
vulnerable premature baby boy, no question about that, who was drug addicted. That' s not a
stipulation." RP ( Feb. 22, 2012) at 22. The court responded that the legal conclusion of particular
vulnerability required a factual basis and that the drug intoxication was part of the victim' s
particular vulnerability.
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43141 -6 -II
The court sentenced Hickey to 360 months. This term of confinement included the deadly
weapon enhancement and was also based on the aggravating factor of a " Particularly Vulnerable
Victim." CP at 447.
Hickey now appeals her exceptional sentence and argues that the trial court engaged in
improper fact finding by basing the aggravating factor of particular vulnerability partly on her
victim' s drug intoxication. Hickey does not challenge the court' s additional reliance on her
admission that her victim was particularly vulnerable because he was a premature baby. We
conclude that any improper fact finding was harmless and affirm the judgment and sentence.
ANALYSIS
The Sixth Amendment to the United States Constitution guarantees the right to a jury trial.
State v. Steele, 134 Wn. App. 844, 850, 142 P. 3d 649 ( 2006). This right extends to any fact that
increases the penalty for a crime beyond the prescribed statutory maximum. Steele, 134 Wn. App.
at 850 ( citing Blakely, 542 U. S. at 302 -04). The relevant " statutory maximum" is the maximum
the court may impose based on the facts reflected in the jury verdict or admitted by the defendant.
Blakely, 542 U. S. at 303. In other words, the statutory maximum is the maximum the court may
impose without any additional findings. Blakely, 542 U.S. at 303 -04.
A jury does not need to find the facts supporting an exceptional sentence, however, when
a defendant pleads guilty and stipulates to the relevant facts. Blakely, 542 U.S. at 310. " When a
defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the
defendant either stipulates to the relevant facts or consents to judicial factfinding." Blakely, 542
U.S. at 310; see also Steele, 134 Wn. App. at 852 ( no Blakely error where defendant stipulated to
findings of fact and conclusions of law for exceptional sentence).
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43141 -6 -II
Hickey argues that the court, in making its findings, exceeded the scope of her stipulation
by finding that her victim was drug intoxicated in addition to being a premature newborn. To
support her claim of error, Hickey cites cases where the defendants' factual stipulations following
a guilty plea did not support an exceptional sentence. These case are distinguishable because the
defendants in those cases stipulated to facts but not to an aggravating factor.
In State v. Hagar, 158 Wn.2d 369, 371, 144 P. 3d 298 ( 2005), the defendant pleaded guilty
to three counts of first degree theft and stipulated to the facts supporting his convictions. Our
Supreme Court held that the trial court erred by making the additional finding that the crimes
constituted a " major economic offense" that justified an exceptional sentence. Hagar, 158 Wn.2d
at 374. This sentence violated Blakely because it was predicated on an unstipulated fact not found
by a jury beyond a reasonable doubt. Hagar, 158 Wn.2d at 374.
Similarly, a defendant' s stipulation to the facts supporting his convictions did not support
an exceptional sentence based on his victim' s particular vulnerability in State v. Suleiman, 158
Wn.2d 280, 283 -84, 143 P. 3d 795 ( 2006). For the victim' s vulnerability to support an exceptional
sentence, the State must show that the defendant knew or should have known of the victim' s
particular vulnerability, and the vulnerability must have been a substantial factor in the crime' s
commission. Suleiman, 158 Wn.2d at 291 -92; see RCW 9. 94A. 535( 3)( b) ( exceptional sentence
justified if defendant knew or should have known that victim was particularly vulnerable or
incapable of resistance). Because the defendant did not stipulate to the aggravating factor of
particular vulnerability, and the factual conclusions needed to show particular vulnerability were
neither part of the stipulation nor found by a jury beyond a reasonable doubt, the exceptional
sentence violated Blakely. Suleiman, 158 Wn.2d at 293.
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Hickey argues that, under Hagar and Suleiman, her stipulation was not adequate to prove
the victim' s particular vulnerability absent the court' s improper fact finding. We disagree. Hickey
admitted that her victim was particularly vulnerable due to age, and this fact alone supports the
aggravating factor of particular vulnerability. We agree with the trial court that, " it' s hard to think
of a more vulnerable being than a ... newborn." RP ( Feb. 22, 2012) at 18. But, when the trial
court supported the stipulated aggravating factor of particular vulnerability with the additional
finding that the victim was a drug intoxicated, it arguably engaged in improper fact finding under
Blakely.
Blakely error may be harmless. See Suleiman, 158 Wn.2d at 295 ( remanding to Court of
Appeals to determine whether Blakely error was harmless). Constitutional error is harmless if the
reviewing court is convinced beyond a reasonable doubt that any reasonable fact finder would
have reached the same result in the absence of the error. State v. Guloy, 104 Wn.2d 412, 425, 705
P. 2d 1182 ( 1985).
Even if the trial court did err in identifying drug intoxication as a basis for finding particular
vulnerability, we hold that this error was harmless. Hickey has never sought to withdraw her plea;
she seeks only resentencing within the standard range. We are convinced that on this record,
including Hickey' s stipulation and the admitted facts, any rational fact finder would have found
beyond a reasonable doubt that the victim was particularly vulnerable. Hickey' s attorney conceded
as much by stating, at the sentencing hearing, that the additional language supporting the
aggravating factor was unnecessary.
43141 -6 -II
Consequently, we conclude that the trial court' s finding of drug intoxication was harmless
error. We affirm the exceptional sentence imposed and remand solely for the purpose of striking
the reference to drug intoxication from the findings of fact supporting the exceptional sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur: