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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                            FILED
                                                                        MAY 24, 2012
                                                                  In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON,                                No.  29495-1-III
                                                )
                      Respondent,               )
                                                )
              v.                                )
                                                )
ROBERT L. DONEY, JR.,                           )   UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Kulik, J.  --  Robert L. Doney appeals, contending that the trial court did not have 

the authority to impanel a jury in 2010 because RCW 9.94A.537(2) did not apply 

retroactively and a retroactive application would violate his constitutional rights.  We 

disagree and affirm Mr. Doney's conviction and exceptional sentence.

                                            FACTS

       History of Prior Appeal. The State charged Mr. Doney with first degree murder 

for the slaying of two-year-old V.R.  The State later amended the information and 

charged several aggravating factors supporting an exceptional sentence.  On March 16, 

2005, after the trial had begun, Mr. Doney pleaded guilty, but he did not admit to the  

No. 29495-1-III
State v. Doney

aggravating factors or waive his right to a jury determination of those factors.  In 
consideration of the United States Supreme Court's decision in Blakely,1 the trial court 

retained the jury to consider the aggravating factors.  The jury returned the special 

verdicts and found that Mr. Doney showed a lack of remorse, acted with deliberate 

cruelty, and that the victim was particularly vulnerable.  The trial court set the sentencing 

for May 13 and later continued the date to June 16.  

       On April 14, one month before sentencing, the Washington Supreme Court ruled 

in State v. Hughes, 154 Wn.2d 118, 126, 110 P.3d 192 (2005) that the proper remedy for 

a Blakely violation was to remand for resentencing within the standard range.  The 

Hughes court determined that impaneling a jury on remand would invade legislative 

authority because the Washington legislature had not created a procedure for a jury to 

find aggravating factors.  Id. at 149-52.  In response, on April 15, the Washington 

legislature enacted the Laws of 2005, chapter 68, which allowed trial courts to submit 

most aggravating factors to a jury. 

       On May 31, Mr. Doney filed a motion with the trial court to vacate the jury's 

findings concerning the aggravating factors, based on the court's decision in Hughes.  In 

       1 In Blakely, the United States Supreme Court held that an exceptional sentence 
above the standard range was invalid if the factors supporting the exceptional sentence 
were not found by a jury beyond a reasonable doubt.  Blakely v. Washington, 542 U.S. 
296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

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State v. Doney

July, the trial court granted the motion to vacate the sentence due to procedural 

irregularities that tainted the sentence.  The trial court also found that the Laws of 

2005, chapter 68 applied retroactively to Mr. Doney's case and allowed the State to move 

to impanel a new jury for the consideration of the aggravating factors in the resentencing 

hearing.  

       The trial court granted the State's request to impanel a new jury to decide the 

existence of the aggravating factors.  The jury returned special verdict findings on two of 

the three aggravating factors.  The court imposed an exceptional sentence of 420 months 

on Mr. Doney.  

       Mr. Doney appealed. While the appeal was pending, the Washington Supreme 

Court decided State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007).  Pillatos

confirmed the holding in Hughes that trial courts do not have the inherent authority to 

impanel sentencing juries.  Pillatos, 159 Wn.2d at 469-70.  Pillatos also held that the 

Laws of 2005, chapter 68, authorized the trial court to impanel sentencing juries only in 

proceedings occurring after the legislation became effective on April 15, 2005.  Pillatos, 

159 Wn.2d at 465.

       In response to Pillatos, the Washington legislature amended RCW 9.94A.537, 

effective April 27, 2007, adding the subsection that "[i]n any case where an exceptional 

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State v. Doney

sentence above the standard range was imposed and where a new sentencing hearing is 

required, the superior court may impanel a jury to consider any alleged aggravating 

circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in 

imposing the previous sentence, at the new sentencing hearing." RCW 9.94A.537(2) (See

Laws of 2007, ch. 205, § 2).  The legislature included a comment in the legislative 

history, 

              Intent -- 2007 c 205:  "In State v. Pillatos, 150 P.3d 1130 (2007), the 
       Washington supreme court held that the changes made to the sentencing 
       reform act concerning exceptional sentences in chapter 68, Laws of 2005 do 
       not apply to cases where the trials had already begun or guilty pleas had 
       already been entered prior to the effective date of the act on April 15, 2005. 
       The legislature intends that the superior courts shall have the authority to 
       impanel juries to find aggravating circumstances in all cases that come 
       before the courts for trial or sentencing, regardless of the date of the 
       original trial or sentencing."

RCW 9.94A.537.

       In January 2008, this court affirmed Mr. Doney's exceptional sentence, holding 

that:

              A jury determined Mr. Doney's exceptional sentence, based on two 
       aggravating factors.  If this case were remanded, Mr. Doney would again 
       have a jury determine these factors because the new statute -- Laws of 2007, 
       ch. 205, § 2 -- would apply to him.  The evidence supporting these factors is 
       overwhelming; however, Mr. Doney has already, arguably twice, received 
       the benefit of the statute. Thus, any error at trial was harmless and we 
       affirm Mr. Doney's sentence.

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State v. Doney

State v. Doney, 142 Wn. App. 450, 455-56, 174 P.3d 1261, rev'd, 165 Wn.2d 400, 198 

P.3d 483 (2008).

       The Washington Supreme Court reversed the decision of this court on the grounds 

that the trial court lacked the inherent authority to impanel a jury for the purpose of Mr. 

Doney's sentencing under Pillatos.  Doney, 165 Wn.2d 400.  The Supreme Court also 

determined that this court should not have addressed the applicability of the 2007 version 

of RCW 9.94A.537.  Doney, 165 Wn.2d at 403.  The issue of whether the 2007 version 

of RCW 9.94A.537 applied to Mr. Doney was not ripe for review because no attempt had 

been made to invoke the statute against Mr. Doney in the trial court.  Doney, 165 Wn.2d 

at 403-04.  The Supreme Court vacated the sentence and remanded for resentencing.  Id. 

at 404.

       Current Appeal. On remand, the trial court granted the State's motion to impanel 

a jury for resentencing.  On August 27, 2010, the jury found the aggravating factors of 

deliberate cruelty and a particularly vulnerable victim.  On October 15, the trial court 

again imposed an exceptional sentence of 420 months based on the aggravating 

circumstances.  

       Mr. Doney appeals the 2010 sentence, contending that the trial court did not have 

authority to impanel a jury because the 2007 version of RCW 9.94A.537 does not apply 

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State v. Doney

retroactively.  He also contends that the retroactive application is unconstitutional 

because the process results in different punishment for defendants who committed the 

same crime. 

                                         ANALYSIS

       "A sentencing court's statutory authority under the Sentencing Reform Act of 1981 

[(SRA), chapter 9.94A RCW] is a question of law we review de novo."  State v. Mann, 

146 Wn. App. 349, 357, 189 P.3d 843 (2008).  Constitutional challenges also receive de 

novo review.  Id.

       Trial Court's Authority to Impanel a Jury.  RCW 9.94A.537(2) states that "[i]n 

any case where an exceptional sentence above the standard range was imposed and where 

a new sentencing hearing is required, the superior court may impanel a jury to consider 

any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon 

by the superior court in imposing the previous sentence, at the new sentencing hearing."  

The legislature noted in the 2007 version of RCW 9.94A.537 that "[t]he legislature 

intends that the superior courts shall have the authority to impanel juries to find 

aggravating circumstances in all cases that come before the courts for trial or sentencing, 

regardless of the date of the original trial or sentencing."  Laws of 2007, ch. 205, § 1.

       "[I]n general, where a controlling law changes between the entering of judgment 

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No. 29495-1-III
State v. Doney

below and consideration of the matter on appeal, the appellate court should apply the new 

or altered law, especially where no vested rights are involved and the Legislature 

intended retroactive application."  Marine Power & Equip. Co. v. Human Rights Comm'n 

Hearing Tribunal, 39 Wn. App. 609, 620, 694 P.2d 697 (1985). 

       The 2007 amendment to RCW 9.94A.537 applies retroactively.  Mann, 146 Wn. 

App. at 361.  In Mann, this court determined that the Washington legislature clearly 

stated its intent for the 2007 amendment to apply to "'all cases that come before the 

courts for trial or sentencing, regardless of the date of the original trial or sentencing."  

Id. at 360 (quoting Laws of 2007, ch. 205, § 1).  "[T]he 2007 legislation effectively 

extends the original 'Blakely-fix' to all exceptional sentence cases that were remanded for 

resentencing based on the Blakely decision."  Id. at 360-61.

       Mr. Doney's contention that the trial court did not have the authority to impanel a 

jury in 2010 fails.  As decided in Mann, the legislature intended the 2007 version of 

RCW 9.94A.537 to apply retroactively.  Therefore, when the Supreme Court remanded 

Mr. Mann's case for resentencing, the trial court had the authority to impanel a jury under 

RCW 9.94A.537 to determine the existence of aggravating factors.

       Separation of Powers. Mr. Doney contends that the legislature violated the 

separation of powers doctrine by applying RCW 9.94A.537 retroactively. 

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       The separation of powers doctrine guarantees that the three branches of 

government do not threaten or invade the constitutional authority of another branch.  

State v. Elmore, 154 Wn. App. 885, 905, 228 P.3d 760, review denied, 169 Wn.2d 1018

(2010). The legislature and judiciary have distinct functions pertaining to laws; the 

legislature has the authority to enact laws, while the courts have the authority to interpret 

those laws.  Id. Therefore, "legislative clarifications construing or interpreting existing 

statutes are unconstitutional when they contravene prior judicial interpretations of a 

statute."  Id. However, if the legislature's intent is to amend a statute rather than clarify 

an existing statute, the separation of powers is not violated.  Id.

       In Mann, this court determined that enacting the changes to RCW 9.94A.537 

did not offend the separation of powers because the legislature was amending 

RCW 9.94A.537, not clarifying it.  Mann, 146 Wn. App. at 360.  Therefore, based on 

Mann, Mr. Doney's contention fails.

       Ex Post Facto and Bills of Attainder Violations. Mr. Doney also contends that the 

retroactive application of RCW 9.94A.537 violates the prohibition against ex post facto 

laws and the prohibition against bills of attainder.

       Prohibitions against bills of attainder and ex post facto laws can be found in article

I, section 10 of the United States Constitution and article I, section 23 of the Washington 

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No. 29495-1-III
State v. Doney

Constitution.  

       "The federal and state ex post facto clauses prohibit enactment of any law which 

imposes punishment for an act which was not punishable when committed, or which 

increases the quantum of punishment after the crime was committed."  State v. Schmidt, 

143 Wn.2d 658, 677, 23 P.3d 462 (2001).  The retroactive application of RCW 

9.94A.537 does not violate the ex post facto clause because it does not increase the 

punishment to the defendant; the statute "'merely allows a jury, rather than the court, to 

make the factual determinations supporting exceptional sentences.'"  State v. Applegate, 

147 Wn. App. 166, 174, 194 P.3d 1000 (2008) (quoting State v. McNeal, 142 Wn. App. 

777, 794, 175 P.3d 1139 (2008)).

       "A bill of attainder is a legislative act which applies to named individuals or to 

easily ascertained members of a group in such a way as to inflict punishment on them 

without judicial trial."  State v. Scheffel, 82 Wn.2d 872, 881, 514 P.2d 1052 (1973). 

       As decided in Applegate, retroactive application of RCW 9.94A.537 does not 

violate the ex post facto clause.  Furthermore, the retroactive application also does not 

create a bill of attainder because the statute does not take away Mr. Doney's right to trial. 

By contrast, the statute allows for a jury to decide on an exceptional sentence during 

resentencing. 

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No. 29495-1-III
State v. Doney

       In sum, when the Supreme Court determined that the trial court lacked the 

authority to impanel a jury in 2005, the proper remedy was to vacate Mr. Doney's

sentence and remand for resentencing.  On remand, RCW 9.94A.537 gave the trial court 

the authority to impanel a jury to decide if aggravating circumstances existed.  The 

application of RCW 9.94A.537 in 2010 did not violate the separation of powers doctrine, 

ex post facto clause, or the provision against bills of attainder.

       Due Process Clause and Equal Protection Clause.  "The relevant portions of Laws 

of 2005, chapter 68 are remedial law, as they relate only to procedures and do not affect 

substantive or vested rights." Pillatos, 159 Wn.2d at 473.  Even though a statute is 

deemed unconstitutional as applied to a set of procedures, it still exists and still gives 

notice that the conduct is illegal and punishable.  Id. at 476.

       Due process provides that "[n]o person shall be deprived of life, liberty, or 

property, without due process of law."  Const. art. I, § 3.  The treatment of an individual 

cannot be so arbitrary or unfair that it amounts to a denial of due process. State v. 

Handley, 115 Wn.2d 275, 290 n.4, 796 P.2d 1266 (1990). 

       "A valid law, administered in a manner that unjustly discriminates between 

similarly situated persons, violates equal protection."  State v. Rushing, 77 Wn. App. 356, 

359, 890 P.2d 1077 (1995).  Before the court will engage in equal protection scrutiny, the 

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No. 29495-1-III
State v. Doney

defendant must first establish that he or she is in a class with similarly situated persons.  

Handley, 115 Wn.2d at 289-90.  If the defendant can establish that he or she was part of a 

group of similarly situated persons who received different treatment, the equal protection 

scrutiny will be invoked.  Id. at 290.  The court will use a rational basis analysis to 

evaluate the validity of the differential treatment when the classification does not involve 

a suspect or semisuspect class or threaten a fundamental right.  State v. Bryan, 145 Wn. 

App. 353, 358, 185 P.3d 1230 (2008).  

       Under the rational basis test, the challenging party must show that the 

classification is purely arbitrary in order to overcome the strong presumption of 

constitutionality.  State v. Manussier, 129 Wn.2d 652, 673, 921 P.2d 473 (1996) (quoting 

State v. Coria, 120 Wn.2d 156, 172, 839 P.2d 890 (1992)).  The test requires that the 

"means employed by the statute be rationally related to a legitimate State goal."  Id.

       Equal protection is not implicated when the trial court imposes different sentences 

on defendants convicted under similar circumstances.  State v. Oksoktaruk, 70 Wn. App. 

768, 777, 856 P.2d 1099 (1993).  "Under the SRA, the trial court may, in the exercise of 

its discretion, determine that an exceptional sentence should be imposed in a particular 

case."  Id.  There is no constitutional requirement that similarly situated defendants in 

different cases must both receive exceptional sentences or even the same sentence.  Id. 

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No. 29495-1-III
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       While the State cannot appeal the length of a standard range criminal sentence, the 

State can challenge the "'underlying legal conclusions and determinations by which a 

court comes to apply a particular sentencing provision.'"  State v. Murawski, 142 Wn. 

App. 278, 283, 173 P.3d 994 (2007) (quoting State v. Williams, 149 Wn.2d 143, 147, 65 

P.3d 1214 (2003)).

       In Murawski, the court determined that the State had the right to appeal the 

sentencing court's decision not to impanel a jury for resentencing under RCW 9.94A.537 

because the State was appealing the procedure behind the imposition and not the length of 

the sentence.  Murawski, 142 Wn. App. at 284.

       Mr. Doney contends that application of RCW 9.94A.537(2) on remand is 

fundamentally unfair and violates his right to due process when compared to similarly 

situated defendants.  Mr. Doney maintains that RCW 9.94A.537(2) treats him arbitrarily 

and unfairly because it allows an exceptional sentence on remand only because an 

exceptional sentence was given in his original sentence.  He argues that if the trial court

would have interpreted the law correctly, he would not have received the exceptional 

sentence and would not be eligible for the same on remand. 

       Mr. Doney's due process claim fails.  RCW 9.94A.537(2) did not change the 

substantive law.  After Blakely, an exceptional sentence based on aggravating factors 

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No. 29495-1-III
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could still be imposed on a defendant.  RCW 9.94A.537 merely changed the process to 

determine aggravating factors.  The trial court's interpretation of the law in determining 

the procedure to use after Blakely was not harsh or unfair treatment and did not violate 

constitutional requirements. 

       The decision of the court to impose an exceptional sentence is the triggering event 

for RCW 9.94A.537(2) to apply.  Once the trial court decides to impose an exceptional 

sentence, RCW 9.94A.537(2) does not treat defendants unfairly or arbitrarily.  All 

defendants who received an exceptional sentence based on aggravating factors are 

eligible for a jury trial on remand to determine whether the aggravating factors exist.  The 

application of the statute does not violate the due process clause. 

       For his equal protection violation, Mr. Doney contends that he belongs to a class 

of persons who pleaded guilty and were charged with aggravating factors after Blakely

and before the 2005 version of RCW 9.94A.537 went into effect.  Mr. Doney contends 

that the application of RCW 9.94A.537(2) treats him differently from other members of 

the group.  He maintains that the statute subjects him to an exceptional sentence on 

remand simply because the trial court interpreted Blakely to allow the court to impanel a 

jury to decide the aggravating factors and imposed an exceptional sentence based on the 

findings.  In comparison, RCW 9.94A.537(2) would not allow a exceptional sentence on 

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No. 29495-1-III
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remand to a similarly situated defendant in which the trial court decided that it did not 

have the authority to submit aggravating factors to a jury and, therefore, did not impose 

an exceptional sentence.

       Mr. Doney fails to establish a class of persons subject to unequal treatment.  All 

the members of the group identified by Mr. Doney were subject to an exceptional 

sentence if the aggravating factors were found to be present because the substantive law 

regarding exceptional sentences still applied during the period between Blakely and 

the enactment of the 2005 version of RCW 9.94A.537.  RCW 9.94A.537 only changed 

the procedure in submitting aggravating factors.  Because all members of the group were 

subject to the substantive law, the application of RCW 9.94A.537(2) does not violate 

equal protection.  It simply provides a new procedure to verify the convictions under the 

same substantive law. 

       Furthermore, Mr. Doney's group is speculative and abstract.  Mr. Doney cannot 

use the decision of the trial court to define a subset of his group that received different 

treatment at the original trial and on remand.  The interpretation of the law by the trial 

court did not mandate that a jury could or could not decide the aggravating factors.  As in 

Murawski, the State had the authority to appeal the trial court's decision not to impanel a 

jury after Blakely.  The possibility of having aggravating factors submitted to a jury was 

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State v. Doney

equally available to all defendants. 

       Even if Mr. Doney were to establish a class of similarly situated persons 

based on a defendant's eligibility for an exceptional sentence, the application of 

RCW 9.94A.537(2) to persons who previously received an exceptional sentence is still 

rationally related to a legitimate state purpose.  The purpose of the SRA is to "[e]nsure 

that the punishment for a criminal offense is proportionate to the seriousness of the 

offense." RCW 9.94A.010(1).  Permitting the imposition of an exceptional sentence 

based on aggravating factors is related to this legitimate state interest. 

       The application of RCW 9.94A.537(2) applies to all defendants who received an 

exceptional sentence above the standard range based on aggravating factors and where a 

new sentencing hearing is required.  The statute does not violate the equal protection 

clause.

       We affirm the decision of the trial court.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________

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No. 29495-1-III
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                                            Kulik, J.

WE CONCUR:

______________________________              _________________________________
Brown, J.                                   Siddoway, A.C.J.

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