State Of Washington, V. Marcus A. Eller ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
January 17, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58050-1-II
Respondent,
v. PUBLISHED OPINION
MARCUS ADRIAN ELLER,
Appellant.
MAXA, J. – Marcus Eller appeals his exceptional sentence imposed under RCW
9.94A.535(2)(d) following his felony conviction of driving under the influence (DUI). He also
appeals the inclusion of a forfeiture provision in his judgment and sentence and raises additional
claims in a statement of additional grounds (SAG).
RCW 9.94A.535(2)(d) permits the trial court to impose an exceptional sentence when
“[t]he failure to consider the defendant’s prior criminal history which was omitted from the
offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is
clearly too lenient.” (Emphasis added). Eller argues that the trial court violated his right to a
jury trial under the Sixth Amendment to the United States Constitution by imposing the
exceptional sentence without a jury first finding that a standard range sentence would be clearly
too lenient in light of his 19 point offender score and numerous unscored misdemeanor offenses.
No. 58050-1-II
We hold that (1) whether a standard range sentence would be clearly too lenient must be
determined by a jury rather than by the trial court, and the trial court’s imposition of the
exceptional sentence based on RCW 9.94A.535(2)(d) without such a jury finding violated the
Sixth Amendment as applied to Eller; (2) as the State concedes, the forfeiture provision in the
judgment and sentence was a scrivener’s error and should be stricken; and (3) Eller’s SAG
claims either rely on evidence that is outside the appellate record, are too vague to address, or
have no merit.
Accordingly, we vacate Eller’s exceptional sentence and remand to the trial court for
resentencing within the standard range without the forfeiture provision.
FACTS
Guilty Plea
In February 2022, Eller pled guilty to one count of felony DUI. In his guilty plea
statement, Eller admitted to driving under the influence having previously been convicted of DUI
at least three times within the prior 10 years.
The criminal history in the plea agreement listed 38 offenses, including 10 prior felony
offenses and nine prior DUI convictions. The plea agreement stated that Eller’s offender score
was 19 and that the standard sentencing range for the felony DUI conviction was 63 to 84
months. The plea agreement also stated that the statutory maximum for the offense was 10
years.
In the plea agreement, the State agreed to request an 84 month term of confinement and
12 month term of community custody. Eller was permitted to argue for any standard range
sentence. Eller did not stipulate to an exceptional sentence, admit that a factual basis for an
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exceptional sentence existed, or waive his right to have any facts supporting an exceptional
sentence determined by a jury.
The trial court accepted Eller’s guilty plea.
Sentencing
At the sentencing hearing, the State requested an 84 month sentence. The State argued
that a sentence at the top of the standard range was appropriate in light of Eller’s high offender
score of 19 points and his numerous unscored misdemeanors. Eller requested a sentence at the
low end of the standard range.
The trial court imposed an exceptional 120 month sentence, the statutory maximum for
the offense. The court stated, “I’m imposing an exceptional sentence upwards finding that the
defendant’s offender score essentially exceeds the standard calculation, and that for those
reasons, an exceptional sentence is warranted.” Rep. of Proc. at 171.
After considering additional briefing and the parties’ arguments, the trial court entered
written findings of fact and conclusions of law supporting the exceptional sentence. The court
found that Eller’s offender score exceeded the highest offender score considered in the
Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, by 10 points and that a standard
range sentence would ignore a significant portion of Eller’s criminal history.
The trial court also entered the following finding of fact:
This Court finds that the failure to consider the defendant’s prior criminal history
which was omitted from the offender score calculation pursuant to RCW
9.94A.525, results in a presumptive sentence that is clearly too lenient in light of
the purpose of the [SRA], as expressed in RCW 9.94A.010.
Clerk’s Papers (CP) at 71.
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No. 58050-1-II
The trial court entered a conclusion of law that there were “substantial and compelling
reasons to impose an exceptional sentence of 120 months.” CP at 71. The court concluded
“[t]hat the exceptional sentence is justified by the aggravating circumstances described in the
above Findings of Fact and RCW 9.94A.535(2)(d).” CP at 72. The court also entered the
following conclusion of law:
That the failure to consider the defendant’s prior criminal history which was
omitted from the offender score calculation pursuant to RCW 9.94A.525, results in
a presumptive sentence that is clearly too lenient in light of the purpose of the
[SRA], as expressed in RCW 9 .94A.010.
CP at 72. And the court concluded that it had authority to impose the exceptional sentence
without a jury finding.
The judgment and sentence also required Eller to “[f]orfeit all seized property subject to
forfeiture under RCW 9.41.098 or RCW 69.50.505 to the originating law enforcement agency
unless otherwise noted.” CP at 51.
Eller appeals his exceptional sentence and the imposition of the forfeiture provision.
ANALYSIS
A. EXCEPTIONAL SENTENCE BASED ON RCW 9.94A.535(2)(d)
RCW 9.94A.535(2)(d) permits the sentencing court to impose an exceptional sentence
without a finding of fact by a jury based on an aggravating factor that “[t]he failure to consider
the defendant’s prior criminal history which was omitted from the offender score calculation
pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.”
Notwithstanding the statutory language permitting the sentencing court to impose an
exceptional sentence under these circumstances, Eller argues that the trial court’s application of
the RCW 9.94A.535(2)(d) aggravating factor to impose an exceptional sentence must be based
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No. 58050-1-II
on a jury finding that the presumptive sentence is clearly too lenient. Therefore, he claims that
RCW 9.94A.535(2)(d) is unconstitutional as applied to him. We agree.
1. Legal Principles
Under RCW 9.94A.535, “The court may impose a sentence outside the standard sentence
range for an offense if it finds, considering the purpose of this chapter, that there are substantial
and compelling reasons justifying an exceptional sentence.” RCW 9.94A.535(2) lists
aggravating circumstances under which a court can impose an exceptional sentence without a
finding of fact by the jury.
RCW 9.94A.535(2) provides in part,
The trial court may impose an aggravated exceptional sentence without a finding of
fact by a jury under the following circumstances:
....
(b) The defendant’s prior unscored misdemeanor or prior unscored foreign criminal
history results in a presumptive sentence that is clearly too lenient in light of the
purpose of this chapter, as expressed in RCW 9.94A.010.
....
(d) The failure to consider the defendant’s prior criminal history which was omitted
from the offender score calculation pursuant to RCW 9.94A.525 results in a
presumptive sentence that is clearly too lenient.
(Emphasis added).
However, the law is clear that any fact that increases the penalty for a crime beyond the
prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a
jury and proved beyond a reasonable doubt. State v. Alvarado, 164 Wn.2d 556, 563, 192 P.3d
345 (2008); see also Blakely v, Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d
403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000). This rule is based on the Sixth Amendment right to trial by jury. Alvarado, 164 Wn.2d
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No. 58050-1-II
at 563. Whether an exceptional sentence violates the Sixth Amendment is a question of law that
we review de novo. Id.
2. Requirement of Jury Finding
Here, the trial court imposed the exceptional sentence under RCW 9.94A.535(2)(d)
without a jury finding that the presumptive sentence was clearly too lenient.1 Eller argues that
the court could not impose an exceptional sentence under RCW 9.94A.535(2)(d) because
whether the presumptive sentence is clearly too lenient is a question for the jury. He recognizes
that RCW 9.94A.535(2)(d) gives the court the authority to impose an exceptional sentence based
on an omitted criminal history, but he argues that this statute is unconstitutional as applied to
him.
In State v. Hughes, the Supreme Court addressed a trial court’s imposition of an
exceptional sentence based in part on the court’s “clearly too lenient” finding under former RCW
9.94A.535(2)(i) (2003). 154 Wn.2d 118, 127-28, 137, 110 P.3d 192 (2005), overruled in part on
other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466(2006). That statute allowed the court to impose an exceptional sentence without a jury finding
if “[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive
sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW
9.94A.010.” Former RCW 9.94A.535(2)(i) (emphasis added). The Supreme Court held that a
clearly too lenient finding required to impose an exceptional sentence under former RCW
1
We note that the trial court’s imposition of an exceptional sentence without a jury finding
complied with the statutory directive in RCW 9.94A.535(2)(d) that the clearly too lenient
determination could be made by the court.
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No. 58050-1-II
9.94A.535(2)(i) was a factual issue that required a jury finding under Blakely. Hughes, 154
Wn.2d at 137, 140.
In State v. Saltz, the trial court imposed an exceptional sentence based in part on a finding
that the defendant’s unscored misdemeanor offenses made the presumptive sentence clearly too
lenient finding under RCW 9.94A.535(2)(b). 137 Wn. App. 576, 579-80, 154 P.3d 282 (2007).
Relying on Hughes, Division Three of this court held that although the existence of Saltz’s
misdemeanor history was an objective determination that the court could make, the question of
whether a standard range sentence would be clearly too lenient under the circumstances was a
factual question that required a jury determination. Id. at 581-82. Therefore, the court held that
RCW 9.94A.535(2)(b) was unconstitutional as applied to Saltz. Id. at 584.
In Alvarado, the Supreme Court addressed an exceptional sentence imposed under RCW
9.94A.535(2)(c). 164 Wn.2d at 559. In distinguishing that subsection from subsections referring
to “clearly too lenient,” the court discussed with approval the holdings in Hughes and Saltz that
the clearly too lenient finding be made by a jury. Id. at 565-68. The court stated, “ ‘The
conclusion that allowing a current offense to go unpunished is clearly too lenient is a factual
determination that cannot be made by the trial court following Blakely.’ ” Id. at 568 (quoting
Hughes, 154 Wn.2d at 140).
Although a different subsection of RCW 9.94A.535(2) is at issue here, the analyses in
Hughes and Saltz apply equally to this case. RCW 9.94A.535(2)(d) requires a clearly too lenient
finding, the same as former RCW 9.94A.535(2)(i) applied in Hughes and RCW 9.94A.535(2)(b)
applied in Saltz. Because a clearly too lenient finding was required to be made by a jury in
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No. 58050-1-II
Hughes and Saltz, we hold that the clearly too lenient finding is required to be made by a jury
under RCW 9.94A.535(2)(d).
The State makes three arguments to the contrary, which we conclude are not persuasive.
First, the State contends that RCW 9.94A.535(2)(d)’s plain language permits the trial court to
impose an exceptional sentence if it finds that the presumptive sentence is clearly too lenient, and
the record supports the trial court’s reasons for imposing the exceptional sentence. But the issue
here is not what the statute provides, but whether RCW 9.94A.535(2)(d) violates the Sixth
Amendment by allowing the trial court to make the clearly too lenient finding.
Second, the State relies on State v. Clarke, 156 Wn.2d 880, 134 P.3d 188 (2006). In
Clarke, the Supreme Court addressed the imposition of an exceptional minimum sentence under
former RCW 9.94A.712 (recodified as RCW 9.94A.507), which required trial courts to sentence
certain sex offenders to a minimum term and a maximum term equal to the statutory maximum
sentence. 156 Wn.2d at 884. The trial court imposed the exceptional minimum sentence under
two provisions of former RCW 9.94A.535(2) that contained the clearly too lenient requirements.
Id.The Supreme Court concluded that the trial court had not engaged in impermissible fact
finding when imposing the exceptional minimum sentence because the relevant statutory
maximum that the court may impose without additional findings in this context was the
maximum sentence of life, not the standard sentencing range that applied to the minimum
sentence. Id. at 890-91.The court stated, “[W]e hold that in the context of indeterminate
sentencing under [former] RCW 9.94A.712, the Sixth Amendment does not bar judicial fact-
finding related to an exceptional minimum sentence when the exceptional sentence does not
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No. 58050-1-II
exceed the maximum sentence imposed.” Id. at 893. In other words, the court held that “Blakely
does not apply to exceptional minimum sentences imposed under RCW 9.94A.712 that do not
exceed the maximum sentence imposed.” Id. at 894.
The court in Clarke expressly declined to consider “whether the specific fact-finding
performed by the sentencing court violated the Sixth Amendment.” Id. However, the court
noted that “the particular aggravating factors found here may violate the constitution in other
contexts.” Id.Because Blakely was inapplicable, the court’s review of the exceptional minimal sentence
involved only whether there were substantial and compelling reasons that justified the
exceptional minimum sentences. Id. at 894-95. The court held that the trial court had not erred
when it determined that a standard range minimum sentence would have been clearly too lenient.
Id. at 894-96.
The State emphasizes that the court in Clarke did not find that the trial court erred when
the trial court, rather than a jury, made the clearly too lenient finding. The State claims that this
fact demonstrates that a clearly too lenient finding can be made by the trial court and that Saltz
was wrongly decided. But Clarke was decided based on the specific facts and legal framework
in that case – the imposition of an exceptional minimal sentence under the indeterminate
sentencing scheme of former RCW 9.94A.712. See 156 Wn.2d at 893. And significantly, the
court held that Blakely did not apply in this situation. Id. at 894. This case does not involve
similar facts.
Third, the State relies on State v. Vance, 168 Wn.2d 754, 230 P.3d 1055 (2010). In
Vance, the trial court sentenced the defendant to an exceptional sentence in the form of
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No. 58050-1-II
consecutive standard range sentences. 168 Wn.2d at 757-58. The court based the exceptional
sentence on former RCW 9.94A.535(2)(d)(i), which allowed an exceptional sentence if operation
of the multiple offense policy resulted in a presumptive sentence that was clearly too lenient in
light of the purpose of the SRA. Id. The Supreme Court addressed the question whether the
Sixth Amendment “requires that a jury, not a trial judge, make findings of fact to support an
exceptional consecutive sentence.” Id. at 759.
The Supreme Court held that under precedent announced in Oregon v. Ice, 555 U.S. 160,
129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), “a sentencing judge, not a jury, may find facts to
support consecutive sentences.” Vance, 168 Wn.2d at 762. The rationale supporting this holding
was that historically, “ ‘[t]he decision to impose sentences consecutively is not within the jury
function.’ ” Id. (quoting Ice, 530 U.S. at 168). Therefore, Apprendi and Blakely are inapplicable
to exceptional sentences in the form of consecutive sentences. Vance, 168 Wn.2d at 762.
The State emphasizes that the court in Vance had no problem with allowing a trial court
to make a clearly too lenient finding. But as with Clarke, Vance was decided based on the
specific facts and legal framework in that case – the imposition of an exceptional sentence in the
form of consecutive sentences. See Vance, 168 Wn.2d at 762. And once again, the court held
that Blakely did not apply in this situation. Id. This case does not involve similar facts.
We hold that the trial court’s imposition of an exceptional sentence under RCW
9.94A.535(2)(d) without a jury finding that the presumptive sentence was clearly too lenient
violated the Sixth Amendment as applied to Eller. Therefore, we vacate the exceptional sentence
and remand for resentencing within the standard range.
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No. 58050-1-II
B. FORFEITURE PROVISION
Eller argues, and the State concedes, that the forfeiture provision in his judgment and
sentence is a clerical error and is not supported by any statutory authority. We agree.
The forfeiture provision in Eller’s judgment and sentence provides, “Forfeit all seized
property subject to forfeiture under RCW 9.41.098 or RCW 69.50.505 to the originating law
enforcement agency unless otherwise noted.” CP at 51. RCW 9.41.098 addresses the forfeiture
of firearms. And RCW 69.50.505 authorizes the seizure and forfeiture of controlled substances
and real and personal property related to the possession, manufacture, delivery, or distribution of
controlled substances. Because Eller’s offense does not involve firearms or drugs, the forfeiture
provision does not apply and should not have been included in the judgment and sentence. And
we note that the forfeiture provision should not be imposed on remand.
C. SAG CLAIMS
In his SAG, Eller asks this court to “investigate” an alleged improper reading of his
breath test results in light of information he has supplied. SAG at 1. Because this claim is based
on matters outside the record, we do not consider this claim. Alvarado, 164 Wn.2d at 569.
In what appears to be a separate claim, Eller also states “Dismiss felony DUI submit as
follows.” SAG at 1. This claim is too vague to address. RAP 10.10(c) (“[T]he appellate court
will not consider a defendant’s [SAG] for review if it does not inform the court of the nature and
occurrence of alleged errors.”).
Finally, Eller attaches to his SAG a copy of the State’s response to his opening brief with
a notation in the margin on page 3 in which he seems to question how the trial court determined
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No. 58050-1-II
that his offender score was 19 when the State mentions only 10 prior offenses. Eller appears to
be raising an issue regarding his offender score calculation.
The portion of the State’s response that Eller appears to be concerned about is where the
State is asserting that 10 of his prior offenses that contributed to his 19 point offender score were
not considered at sentencing because the sentencing grid tops out at 9 points. The State did not
assert that his offender score was based on these 10 offenses. Eller’s 19 point offender score
calculation is supported by the offenses emphasized in bold in his judgment and sentence.
Accordingly, to the extent Eller is raising this issue, it has no merit.
CONCLUSION
We vacate Eller’s exceptional sentence and remand to the trial court for resentencing
within the standard range and without the forfeiture provision.
MAXA, J.
We concur:
CRUSER, A.C.J.
LANESE, J.2
2
Judge Lanese is serving as a judge pro tempore of the court pursuant to RCW 2.06.150(1).
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