Appeal from Superior Court of King County. Docket No: 94-1-05066-1. Date filed: 09/01/95. Superior Court Judge Signing: Joanne Alumbaugh.
Order Denying Motion for Reconsideration November 22, 1996, Petition for Review Granted May 7, 1997,
Authored by Susan R. Agid. Concurring: C. Kenneth Grosse, Walter E. Webster.
The opinion of the court was delivered by: Agid
AGID, J. -- Under the Sentencing Reform Act, a court cannot rely on facts that have not been acknowledged or admitted by the defendant or proved at trial in imposing an exceptional sentence unless the State can prove them by a preponderance of the evidence. Ronald Talley challenges his exceptional sentence for third degree rape, contending the court considered disputed facts without holding an evidentiary hearing. We agree and reverse his sentence. Talley asks us to remand with instructions to enter a standard range sentence because the aggravating factors the trial court relied on are insufficient to justify an exceptional sentence for his crime. Because we conclude that a trial court could justify an exceptional sentence in this case if the State can prove the facts necessary to support it, we remand for resentencing. Talley also asserts that, if the State is called upon to prove the facts that would support an exceptional sentence, it violates its obligation under the plea agreement. We hold that, once the State has recommended to the sentencing court the sentence to which it agreed, it does not violate the plea agreement by putting on evidence at the request of the sentencing Judge which would support an exceptional sentence.
On July 30, 1994, Talley and the victim, DT, were both out with friends at what used to be Club Oz, an underage dance club near the Seattle Center. DT had never met Talley. Not long after she and her friends got there, Talley came across the dance floor, took DT by the hand and led her past the dance floor to a secluded stairwell. According to Talley, they started kissing and eventually engaged in consensual oral and vaginal intercourse. Talley told the police that he called DT a whore after they had intercourse and that DT started yelling at him and pushed him down some steps. Talley said he got up, hit her and returned to the club. According to DT, after Talley got her in the stairwell he demanded oral sex, which she performed because she was scared. He hit her in the head and told her to shut up when she told him she was a virgin and asked him to stop. He then forced her to the ground, removed her clothes and vaginally raped her.
After the incident, DT was taken to a hospital. The medical report lists, among other injuries, a bite on her chest, abrasions on her knees and back, and tears to her vagina.
The State charged Talley with second degree rape. The case went to trial but ended in a mistrial when the jury was unable to reach a verdict.
The State then filed an amended information charging Talley with third degree rape. Talley entered an Alford *fn1 plea to the amended charge. As part of the plea agreement, the State agreed to recommend a standard range sentence.
The sentencing Judge held three separate hearings on August 11, August 24 and September 1, 1995. At the August 11 hearing, the State and defense presented the same sentencing recommendation. The prosecutor told the court he was aware that the Department of Corrections recommended an exceptional sentence, but he did not think there was a legal justification for it in this case. The court also heard from the victim, her sister and father, a member of her support group for rape victims, Talley's community corrections officer, Talley, and his father-in-law.
Talley's attorney argued that the Department of Corrections' recommendation for an exceptional sentence was inappropriate. She pointed out that, because Talley had entered an Alford plea, he had not stipulated to any of the facts in the documents before the court. Talley's attorney expressed concern that the court might consider facts that had not been stipulated to or established to give him an enhanced sentence. The following colloquy took place:
: . . . What I'm trying to convey to the Court is that this Court cannot now step in and enhance those facts to find substantial and compelling reasons for an increased sentence.
THE COURT: Why not? I've read the cert[ification for determination of probable cause]. Nobody has provided me with the police reports. But the cert on its face contains a tremendous amount of information. You are telling me I shouldn't take any of that into consideration?
: What I'm saying is if the Court is considering using those as a basis for a higher charge or as a basis for an exceptional sentence, Mr. Talley, under the authority that I've provided to the Court, is entitled to [an] evidentiary hearing on what are the facts that -- or the fact -- that the Court will be relying on in finding for an exceptional sentence. We don't at this point know what the Court is thinking in terms of whether it's considering an ...