|
DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
41409-1 |
| Title of Case: |
State Of Washington, Respondent V Orlen William Pagel, Appellant |
| File Date: |
05/10/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Thurston Superior Court |
| Docket No: | 10-1-00348-1 |
| Judgment or order under review |
| Date filed: | 10/28/2010 |
| Judge signing: | Honorable Gary R Tabor |
JUDGES
------
| Authored by | J. Robin Hunt |
| Concurring: | Joel Penoyar |
| Jill M Johanson |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Jodi R. Backlund |
| | Backlund & Mistry |
| | Po Box 6490 |
| | Olympia, WA, 98507-6490 |
Counsel for Respondent(s) |
| | Carol L. La Verne |
| | Thurston County Prosecutor's Office |
| | 2000 Lakeridge Dr Sw Bldg 2 |
| | Olympia, WA, 98502-6045 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 41409-1-II
Respondent,
v.
ORLEN WILLIAM PAGEL, UNPUBLISHED OPINION
Appellant.
Hunt, J. -- Orlen William Pagel appeals his jury-trial convictions and sentences for two
counts of second degree burglary and one count of second degree theft. He argues that (1) the
information was constitutionally defective because it did not list sufficient facts to support each of
the alleged crimes; (2) his trial counsel provided ineffective assistance by failing to argue that his
burglary and theft offenses constituted the same criminal conduct for sentencing purposes, and the
trial court abused its discretion in failing to so consider these offenses; and (3) the trial court
violated his Sixth and Fourteenth Amendment right to a jury trial by imposing an exceptional
sentence under former RCW 9.94A.535(2)(c) (2009) without having a jury determine the
existence of his prior convictions beyond a reasonable doubt. We affirm.
NO. 41409-1-II
FACTS
I. Burglary and Theft
On Saturday morning, October 31, 2009, teacher Michelle Whitaker and family members
went to her Olympia school classroom to catch up on some work. Entering the Olympia Regional
Learning Academy (formerly the John Rogers School), they saw a pile of computers, cameras,
and two speakers that had not been there the preceding evening stacked in the hallway outside
one of the classrooms. Whitaker's usually locked classroom door was unlocked. Stepping inside,
she smelled cigarette smoke and noticed that some of the school's science equipment was missing,
that someone had taken money from her desk drawer, and that someone had pulled the
classroom's emergency backpack off the wall, emptied its contents onto a table, and refilled it
with other items. Telling her daughter she believed the school had been burglarized, Whitaker
reached down to pick up a garbage can that had been moved, saw a person with a hood over his
face crouched in the corner, grabbed her daughter and grandson, ran out of the building, and
called 911.
The police noticed the large amount of computer equipment, projectors, and emergency
backpacks with electronic equipment stashed outside a classroom near the building's entrance,
which looked to Officer Jason Winner like someone had spent a considerable amount of time
"staging the scene." 1 Verbatim Report of Proceedings (VRP) at 45. The police also found a
broken window, smelled fresh cigarette smoke as they approached Whitaker's classroom 7, found
cigarette ash on her floor, and retrieved a cigarette butt from her otherwise empty garbage can.
The police did not find the intruder, but the emergency backpack was gone from Whitaker's
2
NO. 41409-1-II
classroom.
Principal Joy Walton-Kawasaki informed police that a spare set of keys to the school was
missing and expressed concern about the intruder's having access to the school's new computer
equipment in portable classrooms 11 and 12. The police inspected the classrooms, but they saw
nothing out of place.
The next morning, the police returned to the school to make sure that the intruder had not
returned. They found a cell phone on top of a heating exchange box outside classroom 11, which
had not been there the day before. The police had a custodian unlock classroom 11; inside, they
noticed that someone had removed a ceiling tile to gain access to classroom 12 and had taken a
$700 Hitachi projector, a $500 document camera, a $35 set of computer speakers, and a $20 red
and black emergency backpack. After the assigned teacher unlocked classroom 12, the police
entered and noticed that all of the computers had been unplugged and that someone had taken a
$500 Dell laptop computer from the teacher's desk, a $1,000 I-Mac computer from one of the
student's desks, a $700 Hitachi projector, an $85 Motorola walkie-talkie set, a small Nikon
camera, and the classroom's red and black emergency backpack. According to Walton-Kawasaki,
the items taken from both portable classrooms cost over $3,600.
That afternoon, a person reported seeing computer equipment and a couple backpacks
stashed at Friendly Grove Park, 200 or 300 yards from the school. When the police arrived at the
park, they located the equipment and photographed it.
The police procured a search warrant for the cell phone. When they searched the phone,
they discovered the phone's number, the moniker "Home Grown Oly Boy," photographs of Orlen
3
NO. 41409-1-II
William Pagel, an entry under the "home" contact for Pagel's mother, recent text messages and
phone calls sent from the cell phone to a "Steph" and a "J Beans," which they later traced to Jill
Kimbler and Stephanie Helland, whom the police contacted. 1 VRP at 186-87. Kimbler, who
was Pagel's cousin, and Helland both confirmed that Pagel called himself "Home Grown Oly
Boy." 1 VRP at 165. Kimbler also confirmed that her nickname was "J Beans"1; she said that
Pagel had called her several times and texted her on October 31, and told her that (1) he was at
John Rogers Elementary School filling up backpacks with "goods"2 when three people walked in
and smelled cigarette smoke; and (2) he had "stashed"3 a couple of the backpacks. Helland also
confirmed that her nickname was "Steph,"4; that Pagel had called her to ask for a ride to Friendly
Grove Park to get a "backpack," and that he said he had lost his cell phone. 1 VRP at 176.
After obtaining a court order, the police took three buccal5 samples from inside Pagel's
cheek.6 His buccal samples matched the DNA on the cigarette butt that police had found in
Whitaker's classroom garbage can.
II. Procedure
The State charged Pagel with two counts of second degree burglary and one count of
1 1 VRP at 164.
2 1 VRP at 167.
3 1 VRP at 167.
4 1 VRP at 174.
5 A buccal test involves collecting DNA from the inside of a person's cheek.
6 Pagel was not in custody at the time.
4
NO. 41409-1-II
second degree theft. The State's third amended information alleged the following:
In that the defendant, ORLEN WILLIAM PAGEL, in the State of Washington, on
or about October 31, 2009, with intent to commit a crime against a person or
property therein, did enter or remain unlawfully in a building. . . .
In that the defendant, ORLEN WILLIAM PAGEL, in the State of Washington, on
or about November 1, 2009, with intent to commit a crime against a person or
property therein, did enter or remain unlawfully in a building. . . .
In that the defendant, ORLEN WILLIAM PAGEL, in the State of Washington, on
or about November 1, 2009, did wrongfully obtain or exert unauthorized control
over property or services of another or the value thereof, with intent to deprive
said person of such property or services, the value of which exceeds seven hundred
and fifty dollars ($750.00).
Clerk's Papers (CP) at 2-3. Each count also included an aggravating factor under former RCW
9.94A.535(2)(c), alleging that Pagel had committed "multiple current offenses" and that his "high
offender score" would result in some of his offenses going unpunished if he did not receive an
exceptional sentence. CP at 2-3. The State also filed a Certification of Probable Cause on March
4, 2010, stating the facts upon which it based its burglary and theft charges.7 Pagel never
challenged the amended information as insufficient, asked for a bill of particulars, or objected that
he had not been adequately informed of the charges against him.
A jury found Pagel guilty on all counts. At sentencing, he had six prior felony convictions,
7 The State's certification of probable cause alleged that the Olympia Regional Academy of
Learning had been burgled on October 31, 2009; that a teacher at the school saw a male intruder
and a number of backpacks and computer equipment stacked in the hallway; that the school's
spare keys were missing; and that the police had found a cigarette butt in the teacher's garbage
can. It further alleged that, on November 1, 2009, the school had been burgled again; that $3,045
worth of computer equipment and supplies had been stolen; that the police had discovered Pagel's
cell phone at the school; and that Pagel had texted photographs of the school's printer and
scanner to two people from the phone.
5
NO. 41409-1-II
including one second degree burglary conviction. Based on this criminal history, the State
claimed Pagel's offender score was 10 points for his current burglary convictions and 8 points for
his current theft conviction. The State argued that this presented a "substantial and compelling"
reason for the trial court to impose an exceptional sentence under former RCW 9.94A.535(2)(c)
because, given Pagel's multiple current offenses and high offender score, one or more of his
current offenses would go unpunished. VRP (October 28, 2010) at 12. The State submitted
certified copies of Pagel's prior judgment and sentences to prove his criminal history. The State
also called Walton-Kawasaki to testify about how Pagel's crimes had disrupted the school's
operations and had traumatized Whitaker and her family. The State requested a maximum
exceptional sentence of 120 months of incarceration, arguing that without an exceptional
sentence, some of Pagel's crimes would go unpunished. At the time of sentencing, Pagel neither
asserted nor requested that a jury, not the sentencing court, should decide the aggravating factors
underlying the State's recommended exceptional sentence.
Pagel's counsel agreed that the State had properly calculated Pagel's offender score as 10
points for each burglary and 8 points for the theft.8 Counsel then argued that the trial court
should not impose an exceptional sentence because (1) Pagel's offender score was over 9 only as
a result of his burglary convictions each having "multipliers"9 with the other burglaries, which
made them count double; (2) Pagel had no violent crimes in his criminal history and had made an
8 Pagel's counsel did not, however, stipulate to Pagel's prior convictions or argue that his
November 1, 2009 burglary and theft constituted the same criminal conduct warranting a lower
offender score.
9 VRP (October 28, 2010) at 7.
6
NO. 41409-1-II
effort to "turn his life around" since his last incarceration; and (3) standard-range sentences would
still be a "substantial penalty" for him. VRP (October 28, 2010) at 17. Pagel's counsel requested
a low-end standard-range sentence of 51 months.
The trial court independently calculated Pagel's offender score and concluded that his
offender score was 10 for his current burglaries and 8 for the theft, without analyzing whether
Pagel's November 1, 2009 burglary and theft constituted the same criminal conduct for
sentencing purposes. The trial court determined that the standard-range sentence for each of
Pagel's burglary convictions was 51 to 68 months and that the standard-range sentence for his
theft conviction was 17 to 22 months. For each of Pagel's current convictions, the trial court
found that, given his high offender score, one or more of his current offenses would go
unpunished, an aggravating factor under former RCW 9.94A.535(2)(c).10 Based on this
aggravating factor, the trial court imposed an exceptional sentence of 85 months for each of the
burglaries and 22 months for the theft, all to run concurrently. Pagel appeals his convictions and
sentences.
ANALYSIS
I. Sufficiency of Information
Pagel first argues that we should reverse his convictions because the information was
constitutionally insufficient to notify him about the charges against him. Specifically, he argues
that the information used only the "bare, abstract language of the statute[s]" and did not allege
10 The trial court also entered findings of fact and conclusions of law, citing the language of
former RCW 9.94A.535(2)(c) as the basis for its exceptional sentence.
7
NO. 41409-1-II
"specific facts other than the date of each offense." Br. of Appellant at 7-8. The State responds
that Pagel's argument fails because (1) Pagel's information met the constitutional requirements
because it included all of the essential elements of his offenses and implied the existence of
necessary facts; (2) if Pagel believed his information was vague on some other matter, he could
have requested a bill of particulars; and (3) Pagel did not demonstrate actual prejudice. We agree
with the State.
A. Standard of Review
We review a challenge to the sufficiency of a charging document de novo. State v.
Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007). A charging document must allege "[a]ll
essential elements of a crime, statutory or otherwise" to provide a defendant with sufficient notice
of the nature and cause of the accusation against him. State v. Kjorsvik, 117 Wn.2d 93, 97, 812
P.2d 86 (1991); U.S. Const. amend. VI; Wash. Const. art. I, § 22 (amend. 10). To satisfy this
requirement, the information must allege (1) "every element of the charged offense" and (2)
"particular facts supporting them." State v. Nonog, 169 Wn.2d 220, 226, 237 P.3d 250 (2010)
(citing State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995) and State v. Leach, 113
Wn.2d 679, 688, 782 P.2d 552 (1989)).11 The primary purpose of the rule is to give the
defendant sufficient notice of his charges so he can prepare an adequate defense. State v.
Tandecki, 153 Wn.2d 842, 846, 109 P.3d 398 (2005).
We also distinguish between charging documents that are constitutionally deficient and
those that are merely "vague." Leach, 113 Wn.2d at 686-87. A constitutionally deficient
11 See also State v. Simms, 171 Wn.2d 244, 250, 250 P.3d 107 (2011).
8
NO. 41409-1-II
information is subject to dismissal for failure to state an offense on the face of the charging
document by omitting allegations of the essential elements constituting the offense charged.12
Leach, 113 Wn.2d at 686-87. An information that states each statutory element of a crime, but is
vague as to some other significant matter, may be corrected under a bill of particulars. Leach,
113 Wn.2d at 687. A defendant may not challenge an information for vagueness on appeal if he
did not request a bill of particulars at trial.13 Leach, 113 Wn.2d at 687.
Where, as here, the defendant has failed to challenge an information's sufficiency at trial
and instead raises his challenge for the first time on appeal, we construe the document liberally in
favor of validity. State v. Brown, 169 Wn.2d 195, 197, 234 P.3d 212 (2010) (citing Kjorsvik, 117
Wn.2d at 102). The test is (1) whether the essential elements appear in any form, or can be found
by any fair construction, in the information; and (2) if so, whether the defendant nonetheless was
actually prejudiced by the inartful language used. Brown, 169 Wn.2d at 197-98 (citing Kjorsvik,
117 Wn.2d at 105-06).
Analyzing the first prong of this test, we read the information "as a whole, according to
the common sense and including facts that are implied" to see if the information reasonably
12 Accord Nonog, 169 Wn.2d at 226 ("Failure to allege each element means that the information is
insufficient to charge a crime, and so must be dismissed.").
13 If Pagel believed that the information was "vague" or if he wanted greater factual specificity
about another matter relevant to his defense, he should have requested a bill of particulars at trial.
Leach, 113 Wn.2d at 687; State v. Noltie, 116 Wn.2d 831, 843-44, 809 P.2d 190 (1991)
(defendant should have requested a bill of particulars if he wanted specificity about the "when,
where or how" of his charged crime) (internal quotation marks omitted). Having failed to seek a
bill of particulars at the time of trial, he has waived this challenge on appeal. Leach, 113 Wn.2d at
687; Noltie, 116 Wn.2d at 843-44. Therefore, we do not further consider this argument.
9
NO. 41409-1-II
apprised the defendant of the elements of the crime charged. Nonog, 169 Wn.2d at 227. If it did,
the defendant may prevail only if he can show that the inartful charging language actually
prejudiced him. Nonog, 169 Wn.2d at 227. Under this test's second prong, we may look beyond
the face of the information to determine if the defendant received actual notice of his charges
through "other circumstances of the charging process," such as the State's assertions in its
certificate of probable cause. See Kjorsvik, 117 Wn.2d at 106, 111; Williams, 162 Wn.2d at 186;
State v. Phillips, 98 Wn App. 936, 944, 991 P.2d 1195 (2000).
B. Information Not Constitutionally Deficient
The State charged Pagel with two counts of second degree burglary and one count of
second degree theft:
A person is guilty of burglary in the second degree if, with intent to commit a
crime against a person or property therein, he or she enters or remains unlawfully
in a building other than a vehicle or a dwelling.
RCW 9A.52.030(1).14
A person is guilty of theft in the second degree if he or she commits theft of . . .
[p]roperty or services which exceed(s) seven hundred fifty dollars in value but
does not exceed five thousand dollars in value, other than a firearm as defined in
RCW 9.41.010 or a motor vehicle.
RCW 9A.56.040(1)(a). RCW 9A.56.020(1)(a) further defines theft as:
To wrongfully obtain or exert unauthorized control over the property or services
of another or the value thereof, with intent to deprive him or her of such property
or services.
On appeal, Pagel does not contend that the information failed to include all of the legal
14 Although the legislature has amended this statutory provision since the date of Pagel's crimes,
this change does not affect our analysis here.
10
NO. 41409-1-II
elements of his offenses as defined in these statutes. Nor does he assert that he was unaware of
the nature of the charges against him or that he was actually prejudiced. Instead, he relies
primarily on Leach and argues that his information was "factually deficient" because it referred to
the "bare, abstract language" of the second degree burglary and second degree theft statutes and
it did not allege any specific facts other than the dates for each offense. Br. of Appellant at 8.
Pagel's reliance on Leach is misplaced, and his argument fails to meet his burden for challenging
the sufficiency of the information for the first time on appeal.
As Pagel asserts, Leach states that the "'essential elements'" rule requires a charging
document to "allege facts supporting every element of [an] offense, in addition to adequately
identifying the crime charged." Leach, 113 Wn.2d at 689 (emphasis omitted). But the opinion
also reaffirms a longstanding rule that an information may rely on the language of a statute if the
statute defines the offense with certainty:
In an information . . . for a statutory offense, it is sufficient to charge in the
language of the statute if the statute defines the crime sufficiently to apprise an
accused person with reasonable certainty of the nature of the accusation.
Leach, 113 Wn.2d at 686 (citing State v. Grant, 89 Wn.2d 678, 686, 575 P.2d 210 (1978)).15
And as we have previously explained, Leach "does not impose any additional requirement that the
State allege facts beyond those that sufficiently support the elements of the crime charged or that
the State describe the facts with great specificity." State v. Winings, 126 Wn. App. 75, 85, 107
P.3d 141 (2005) (citing Leach, 113 Wn.2d at 688); see also Nonog, 169 Wn.2d at 226 (quoting
15 See also Noltie, 116 Wn.2d at 840; State v. Elliott, 114 Wn.2d 6, 13, 785 P.2d 440, cert.
denied, 498 U.S. 838 (1990); Kjorsvik, 117 Wn.2d at 99.
11
NO. 41409-1-II
Leach, 113 Wn.2d at 686) (Our Supreme Court's similar recent explanation of the purpose of this
requirement: "to charge in language that will 'apprise an accused person with reasonable
certainty of the nature of the accusation.'").
Pagel, however, does not contend that the statutory elements of RCW 9A.52.030(1),
RCW 9A.56.040(1)(a), and RCW 9A.56.020(1)(a) inadequately defined his charges or that he
lacked notice of a common-law or implied element of his offenses such that his information
required greater factual detail to enable him to adequately prepare a defense. Nor does he allege
any specific "facts" that the information lacked. He fails to show us how the information was
deficient, especially under the liberal standard that we apply when he has failed to raise this
challenge below.
Construed liberally, according to common sense, and in favor of validity, Pagel's
information sufficiently informed him about the essential elements of his charges. Specifically, the
information alleged that on October 31 and November 1, 2009, Pagel (1) entered or remained in a
building, (2) unlawfully, and (3) with intent to commit a crime against a person or property. It
further alleged that on November 1, 2009, Pagel (1) wrongfully obtained or exerted control over
property or services of another or value thereof, (2) without authorization, (3) intending to
deprive another person of those property or services, (4) the value of which exceeded $750.00.
Pagel's information, thus, included all essential elements and factual allegations of his offenses
that the State needed to prove to convict him of second degree burglary and second degree theft.
Accordingly, we hold that the information adequately apprised Pagel about the nature of his
charges and that it was, therefore, constitutionally sufficient. Because Pagel neither argues nor
12
NO. 41409-1-II
shows that the allegedly defective information prejudiced him, we do not address the second
prong of the test.
13
NO. 41409-1-II
II. Same Criminal Conduct
Pagel next contends that the trial court erred by failing sua sponte to consider whether his
November 1, 2009 burglary and theft offenses constituted the "same criminal conduct" under
RCW 9.94A.589(1)(a) for offender score calculation purposes. Br. of Appellant at 8. He argues
that, had the trial court determined that these crimes counted as one offense under RCW
9.94A.589(1)(a), he would have had an offender score of "nine" and the trial court would have
lacked authority to impose an exceptional sentence under former RCW 9.94A.535(2)(c)16 based
on his having one or more current offenses going unpunished. Br. of Appellant at 12. The State
argues that the trial court did not need to make a same criminal conduct finding because it was
authorized to punish Pagel's burglary and theft offenses separately under the burglary anti-merger
statute.17 We agree with the State.
A. Standard of Review
When reviewing a sentence under the Sentencing Reform Act of 1981, chapter 9.94A
RCW, we generally defer to the trial court's discretion, and we will reverse a trial court's
determination of "'same criminal conduct'" only on a "'clear abuse of discretion or misapplication
of the law.'" State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (quoting State v. Elliott,
114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990)). We find no such abuse of
discretion here.
16 Although the legislature has amended this statutory provision since the date of Pagel's crimes,
this change does not affect our analysis here.
17 RCW 9A.52.050.
14
NO. 41409-1-II
B. Failure To Preserve Alleged Error
At the outset, we note that Pagel failed to preserve this issue for appeal because he did not
ask the trial court to enter a finding that his burglary and theft offenses constituted the same
criminal conduct under RCW 9.94A.589(1)(a). Although
waiver does not apply where the alleged sentencing error is a legal error[18] leading
to an excessive sentence, waiver can be found where the alleged error involves an
agreement to facts, later disputed, or where the alleged error involves a matter of
trial court discretion.
In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002) (second and third
emphases added). Application of the same criminal conduct statute involves both factual
determinations and the exercise of discretion; a defendant may waive such challenges to his
offender score by failing to raise them below. State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d
1000, review denied, 141 Wn.2d 1030 (2000); Goodwin, 146 Wn.2d at 875. Because Pagel did
not argue during the sentencing hearing that his burglary and theft offenses constituted the same
criminal conduct, he cannot raise this issue for the first time on appeal.
III. Ineffective Assistance of Counsel
Pagel also argues that he received ineffective assistance because (1) his trial counsel did
not argue at sentencing that his November 1, 2009 burglary and theft offenses constituted the
same criminal conduct under RCW 9.94A.589(1)(a); and (2) had the trial court counted the two
18 See, e.g., State v. Wilson, 170 Wn.2d 682, 691, 244 P.3d 950 (2010) (prior conviction
classifications are legal questions and erroneously scored prior convictions are a legal error, not a
factual error, for which the remedy is resentencing). Here, in contrast, the issue does not involve
an allegedly misscored prior conviction. Rather it involves only a potential factual issue of
whether two offenses constitute the same criminal conduct for offender score calculation
purposes.
15
NO. 41409-1-II
offenses as one, it would have lacked authority to impose his exceptional sentence under former
RCW 9.94A.535(2)(c). The State responds that Pagel's ineffective assistance claim fails because
he has not shown deficiency or prejudice in light of the burglary anti-merger statute. Again, we
agree with the State.
Pagel's argument for "same-criminal-conduct" treatment for the first time on appeal
ignores the trial court's independent authority to punish both the theft and the burglary separately
under the burglary anti-merger statute, which provides:
Every person who, in the commission of a burglary shall commit any other crime,
may be punished therefor[e] as well as for the burglary, and may be prosecuted
for each crime separately.
RCW 9A.52.050 (emphasis added). The Washington Supreme Court has held that this statute
gives a trial judge discretion to punish burglary, even if the burglary and another crime encompass
the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 781-82, 827 P.2d 996 (1992). The
trial court had authority to sentence Pagel's November 1, 2009 burglary and theft offenses
separately under the burglary anti-merger statute, regardless of whether the offenses constituted
the same criminal conduct RCW 9.94A.589(1)(a). Therefore, Pagel can meet neither the deficient
performance prong nor prejudice prong of the ineffective assistance of counsel test.19 Because
Pagel fails to provide any argument that the trial court would have declined to exercise its
discretion under the burglary anti-merger statute if counsel had raised and the trial court had
19 To prevail on an ineffective assistance of counsel claim, a defendant must prove both (1) that
his counsel's performance was deficient and (2) that the deficiency prejudiced him. State v. Kyllo,
166 Wn.2d 856, 862, 215 P.3d 177 (2009); Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
16
NO. 41409-1-II
treated the offenses as the same criminal conduct, his ineffective assistance of counsel claim fails.
IV. Right to Jury Trial
Last, Pagel contends that the trial court violated his right to a jury trial under the Sixth and
Fourteenth Amendments to the United States Constitution because the trial judge imposed his
exceptional sentence under former RCW 9.94A.535(2)(c) without having a jury determine the
existence of his prior convictions beyond a reasonable doubt. Specifically, Pagel argues that his
exceptional sentence violates his right to a jury trial because (1) Blakely v. Washington20 requires
that a jury (not a judge) determine beyond a reasonable doubt "[a]ny fact which increases the
penalty for a crime"21; (2) his prior convictions were factual issues that increased the penalty of his
crimes because they formed the basis for his exceptional sentence; and (3) therefore, a jury needed
to determine his prior convictions, not the trial judge..
Our Supreme Court has recently addressed this issue twice and twice decided it adversely
to Pagel's argument: in State v. Mutch, 171 Wn.2d 646, 656-57, 254 P.3d 803 (2011); and State
v. Alvarado, 164 Wn.2d 556, 567-59, 192 P.3d 345 (2008). These cases control here, and
Pagel's argument fails.
The trial courts in Alvarado and Mutch determined the defendants' respective prior
convictions and offender scores and imposed exceptional sentences under former RCW
9.94A.535(2)(c), the statute at issue here. Also like Pagel, Alvarado and Mutch argued for the
first time on appeal that this process violated their Sixth Amendment right to a jury trial under
20 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
21 Br. of Appellant at 16.
17
NO. 41409-1-II
Blakely and other recent United States Supreme Court decisions. Alvarado, 164 Wn.2d at 559;
Mutch, 171 Wn.2d at 652, 656. The Washington Supreme Court rejected this argument, citing
the express holding of Blakely as:
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.
Mutch, 171 Wn.2d at 657 n.2 (internal quotation marks omitted) (quoting Blakely, 542 U.S. at
301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000))). Our Washington Supreme Court has interpreted Blakely's inclusion of the phrase
"other than the fact of a prior conviction" as creating a "prior convictions exception" to the
general rule that the Sixth Amendment requires a jury to determine beyond reasonable doubt any
fact that increases the penalty of a crime. 22 See Alvarado, 164 Wn.2d at 567. And our Supreme
Court has specifically held that having a judge determine prior convictions under RCW
9.94A.535(2)(c) does not violate a defendant's Sixth Amendment right to a jury trial. Mutch, 171
Wn.2d at 657-58; Alvarado, 164 Wn.2d at 569.
Pagel's argument is virtually indistinguishable from those that our Supreme Court rejected
in Alvarado and Mutch. Accordingly, we hold that the trial court did not violate Pagel's Sixth
Amendment right to a jury trial when it determined the existence of his prior convictions
22 Our Legislature has also amended chapter 9.94A RCW to conform to Blakely's holding.
18
NO. 41409-1-II
and imposed his exceptional sentence under former RCW 9.94A.535(2)(c).
We affirm Pagel's convictions and sentences.
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.
Hunt, J.
We concur:
Penoyar, C.J.
Johanson, J.
19
|