State v. Dyson

¶31

Korsmo, J.

(dissenting) — I agree with nearly all of the majority opinion except for its conclusion. The issue identified here is not a mandatory minimum sentence problem. Alleyne v. United States,_U.S._, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The actual issue is one of statutory interpretation that has already been settled by In re Personal Restraint of Huy Khac Tran, 154 Wn.2d 323, 111 P.3d 1168 (2005), and State v. McChristian, 158 Wn. App. 392, 241 P.3d 468 (2010), review denied, 171 Wn.2d 1003 (2011). Although there is an Alleyne error in this case, that error is harmless. Alleyne did not change the definition of “punishment” under the Sixth Amendment and does not extend the Sixth Amendment jury trial right to the collateral consequences of a factual finding that establishes a minimum sentence. Since the trial court complied with the procedure set forth in McChristian, I would affirm.

¶32 After struggling for many years to define the scope of the constitutional right to a jury trial as it related to sentencing, the United States Supreme Court finally cobbled together a majority to declare a rule on the topic in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). “Other 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.” Id. at 490. The rule of Apprendi was then applied to Washington’s determinate sentencing statute, the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, in Blakely v. Washington, 542 U.S. 296, 303-05, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The court concluded that the high end of the standard range was the “statutory maximum” to which the jury trial right applied. Id. at 303-04. Post-Apprendi, the Court declined to extend its ruling to minimum sentences. Id. at 304; Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002) (plurality opinion).

¶33 That practice changed in Alleyne. At issue there was the sentence imposed following a robbery conviction. The jury determined that the defendant had carried a firearm, a fact that mandated a five year minimum sentence. 186 L. Ed. 2d at 322. The trial judge “found” that the defendant had brandished a firearm in the course of the robbery, a fact that mandated a seven year minimum sentence. Id. The Supreme Court overturned the brandishing sentence, with the plurality reasoning that an increased minimum sentence acted like an increased maximum sentence, both of which altered the “prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Id. at 324 (plurality opinion). The fifth vote for the result came from Justice Breyer, who would have overruled Apprendi, but agreed with the plurality to overturn Harris and remove what he considered a sentencing anomaly created by that case. Id. at 334-35 (Breyer, J., concurring in part and concurring in judgment).

¶34 The application of the Alleyne opinion to RCW 9.94A.540(l)(b)¹ is now straightforward. The statute creates a mandatory minimum sentence that must, under Alleyne, be found by a jury. That was not done here; I agree with the majority that the lack of a finding was error. However, the Alleyne error was harmless.

¶35 Even with an offender score of zero, under the SRA the standard range for first degree assault has always exceeded 60 months, the minimum term set by the finding.² See Laws op 1983, ch. 115, §§ 2, 3 (establishing sentence ranges and assigning seriousness levels to offenses; creating range of 62-82 month sentence for first degree assault with offender score of zero). The minimum term finding thus had no effect on the sentencing range established by the jury’s verdicts in Mr. Dyson’s case. Even if a jury had made the same finding entered by the trial judge, there would have been no change in the range of incarceration Mr. Dyson faced for his actions — and thus this is not an Alleyne violation.

¶36 Apparently recognizing that the Alleyne error was of no consequence to his sentence range, Mr. Dyson focuses on one of the collateral consequences of that finding, the loss of any opportunity to earn early release time during the period of the minimum sentence. See RCW 9.94A.540(2). That same consequence was at issue in Tran. There the court concluded that because first degree assault, even when committed with a firearm, does not completely overlap the more limited instances of first degree assault subject to the minimum term requirement, the Department of Corrections erred in making its own finding and imposing the minimum term. 154 Wn.2d at 332.

¶37 This court revisited Tran in McChristian. Division Two began its analysis of the issue by agreeing with the defendant that the minimum term statute required “a factual finding that a defendant meets the requirements of the statute before a trial court may impose a mandatory minimum sentence.” McChristian, 158 Wn. App. at 402. It found that Tran implicitly required a factual finding before the minimum term was imposed. Id. at 403. It disagreed, however, with the defendant’s argument that the Sixth Amendment required a jury to make the finding, deciding that a judge could do so. Id. at 403-05.

¶38 In light of Alleyne, an argument can be made that McChristian is at least partially defunct and that a jury, not a judge, must make the factual determination that governs the additional consequences listed in RCW 9.94A.540(2). McChristian still stands, and should still stand, unless either Alleyne’s definition of punishment is expanded to include the collateral consequences of a minimum term finding or the Washington Supreme Court invalidates the McChristian interpretation of Tran. Neither of those events has happened yet. Critically for this case, nothing in Alleyne changed the Apprendi/Blakely concept of what constituted “punishment” within the meaning of the Sixth Amendment right to a jury trial — the range of sentences³ which a judge could impose based on the facts found by the jury. Whether a prisoner earns earned early release credits is not a sentencing option left to the discretion of the sentencing judge. Limitation on earned early release simply is not punishment under Apprendi and its progeny.

¶39 If the Apprendi!Alleyne conception of “punishment” is to be extended to include the opportunity to earn early release, we should acknowledge what we are doing and explain why the extension is warranted. This, however, is not the case to have that discussion. Mr. Dyson did not object to the lack of a jury finding, the court’s check-box minimum term finding, or the judge’s comments at sentencing concerning how fortunate it was that no one died. Under McChristian, these actions were enough to satisfy the statute’s fact-finding requirement. Any question of statutory construction concerning the identity of the appropriate fact-finder thus was waived by the failure to raise the issue to the trial court. RAP 2.5(a). Since the United States Supreme Court has not yet extended its Sixth Amendment jurisprudence to collateral consequences of a jury’s factual finding, it is doubtful this case presents a manifest issue of constitutional error that we should be reviewing. RAP 2.5(a)(3). For both reasons, Mr. Dyson’s claim should fail.

¶40 Although compliance with Alleyne is necessary to impose a minimum term of 60 months incarceration, the low end of the standard range for first degree assault already exceeds that amount and the jury’s verdict means that the minimum term finding is at worst harmless error under Alleyne. Even if not required by Alleyne, the prudent prosecutor should seek findings in any appropriate case involving a minimum term and remove this potential issue in the future.⁴

¶41 I respectfully dissent.

Review denied at 184 Wn.2d 1038 (2016).

1 “An offender convicted of the crime of assault in the first degree ... where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years.”

2 It seems likely that the primary purpose of the minimum term requirement, which was enacted by Laws of 1981, ch. 137, § 12, was to influence the Sentencing Guidelines Commission when it devised the ranges and seriousness levels for the crimes. The commission’s ranges subsequently were adopted by the legislature two years later. See Laws of 1983, ch. 115, § 1. Although no minimum sentence for first degree assault existed at the time the SRA first was enacted in 1981, there had been a five year minimum term for that offense prior to 1976. See Laws of 1909, ch. 249, § 161, repealed by Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.92.010(27).

3 Financial penalties triggered by specific factual determinations have joined incarceration on the list of what constitutes “punishment” under the Sixth Amendment. S. Union Co. v. United States,_U.S._, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012).

4 If the charging theory of first degree assault was limited to the options covered by the mandatory minimum sentence, it appears that a jury verdict alone would be sufficient to allow the trial judge to impose the minimum term without running afoul of Alleyne.