State v. Williams-Walker, 167 Wn.2d 889, 899-900,
225 P.3d 913 (2010), this court held that article I, sections
21 and 22 of the Washington State Constitution prohibit a
sentencing court from imposing a firearm enhancement based on
a deadly weapon special verdict finding. We subsequently
recognized that Williams-Walker announced a new rule
of criminal procedure, applicable to all cases pending at the
time it was decided. In re Pers. Restraint of
Eastmond, 173 Wn.2d 632, 634, 272 P.3d 188 (2012). Our
holding in Eastmond adhered to the longstanding
principle that "[a] new rule for the conduct of criminal
prosecutions is to be applied... to all cases, state or
federal, pending on direct review or not yet final."
re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326,
823 P.2d492 (1992) (citing Griffith v. Kentucky, 479
U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)).
question in this case is whether the rule in
Williams-Walker applies to appellate review of Marco
Wences's 2015 sentence. The obvious answer to this
question-yes-is obscured by the fact that Wences's
sentence was imposed for a conviction dating back to 2005.
Concluding that Wences "should not benefit from changes
in the law that apply to him solely because he absconded and
delayed his sentencing, " the Court of Appeals affirmed
the superior court's decision to impose a firearm
enhancement based on pre-Williams-Walker law.
State v. Wences, No. 73333-8-1, slip op. at 7
(Wash.Ct.App. July 25, 2016) (unpublished),
We hold that this result is impermissible under settled law.
We reverse the Court of Appeals and remand to the superior
court for resentencing consistent with
FACTS AND PROCEDURAL HISTORY
a search of Wences's car in 2003, the State charged him
with possession of a controlled substance (methamphetamine)
with intent to manufacture or deliver. The State also alleged
that Wences was armed with a firearm during the commission of
the crime. A jury convicted Wences of all charges in 2005.
The trial court instructed the jury that a firearm is a
deadly weapon, and the jury answered yes to a special verdict
form that asked whether Wences was "armed with a deadly
weapon at the time of the commission of the crime."
Clerk's Papers (CP) at 30.
did not appear for a scheduled sentencing hearing in 2005.
Starting around that time, our law on firearm and deadly
weapon enhancements was evolving. See State v.
Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005)
(Recuenco I), rev'd and remanded on other
grounds, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466
(2006) (Recuenco II), on remand, 163 Wn.2d
428, 180 P.3d 1276 (2008) (Recuenco III);
Williams-Walker, 167 Wn.2d 889. Our cases considered
the import of two earlier United States Supreme Court
decisions interpreting the Sixth . Amendment right to a jury
trial under the United States Constitution. U.S. Const.
amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an
impartial jury."). In those decisions, the Supreme Court
held "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." Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000). The '"statutory maximum'" in
this context is "the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.''''
Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct.
2531, 159 L.Ed.2d 403 (2004).
on these Supreme Court decisions, this court recognized that
"[i]n Washington there are two types of deadly weapon
sentence enhancements: firearm sentence enhancements and
enhancements." Eastmond, 173 Wn.2d at 635;
see also RCW 9.94A.533(3), (4). In two cases, we
specifically addressed whether a sentencing court can
constitutionally impose a firearm enhancement where the
jury's special verdict finding authorizes only a deadly
weapon enhancement. Recnenco I, 154 Wn.2d at 158-59;
Williams-Walker, 167 Wn.2d at 892.
Recuenco I, this court held that "[w]ithout an
explicit firearm finding by the jury, [a] court's
imposition of a firearm sentence enhancement violate[s] [a
defendant's constitutional right to a] jury trial."
154 Wn.2d at 162; Wash. Const. art. I, § 21 ("The
right of trial by jury shall remain inviolate."); Wash.
Const, art. I, § 22 ("In criminal prosecutions the
accused shall have the right... to have a speedy public trial
by an impartial jury."). Next, in
Williams-Walker, this court held that "[a]
sentence enhancement must not only be alleged, it also must
be authorized by the jury in the form of a special
verdict." 167 Wn.2d at 900 (emphasis added).
"Disregard of... the special verdicts violates [a]
defendant['s] right to a jury trial under article I,
sections 21 and 22 [of the Washington Constitution]."
Id. at 899-900. In sum, by 2010 it was clear under
Washington law that, "[w]hen the jury is instructed on a
specific enhancement and makes its finding, the sentencing
judge is bound by the jury's finding." Id.
2015, Wences appeared pursuant to a warrant for his arrest
and the court set a sentencing hearing on his 2005
conviction. Per the State's recommendation, the court
sentenced Wences to 100 months of confinement, including a
64-month standard range base sentence and a 36-month firearm
enhancement. The State noted that its recommendation was
"a lengthier recommendation than would have been made
had [Wences] not failed to appear [at his sentencing hearing
in 2005]." Verbatim Tr. of Proceedings on Appeal (VTP)
(Mar. 23, 2015) at 3.
appealed his sentence, arguing that because the jury verdict
authorized only a deadly weapon enhancement, the sentencing
court violated his constitutional right to a jury trial when
it imposed the lengthier firearm enhancement. Br. of
Appellant at 21-22 (relying on Williams-Walker, 167
Wn.2d at 897). The State countered that the jury
instructions, read together with the special verdict form,
authorized the firearm enhancement. See Br. of
Resp't at 14-17. Division One of the Court of Appeals
upheld Wences's sentence on grounds raised sua sponte.
Wences, slip op. at 6-8. That court stated:
While Wences' judgment and sentence was not final until
2015, it would have been final prior to both
Recuenco and Williams-Walker but for
Wences' flight and the consequent 11-year delay of his
sentencing. A defendant should not benefit from changes in
the law that apply to him solely because he absconded and
delayed his sentencing.
Id. at 7.
filed a petition for review in this court, which we granted.
State v. Wences, 187 Wn.2d 1016, 388 P.3d 761
(2017). He challenges only the lawfulness of his enhanced
sentence. Pet. for Review at 14.
decide whether the rule in Williams-Walker applies
to appellate review of Wences's sentence. But for the
fact that Wences was convicted in 2005, this would be a
straightforward case because the judgment and sentence under
review were entered in 2015, five years after the decision in
Williams-Walker See, e.g., State v.
Taylor, 150 Wn.2d 599, 601, 80 P.3d 605 (2003) ("In
a criminal proceeding, a final judgment 'ends the
litigation, leaving nothing for the court to do but execute
the judgment.'" (internal quotation marks omitted)
(quoting In re Det. of Petersen, 138 Wn.2d 70, 88,
980 P.2d 1204 (1999))); see also State v. Siglea,
196 Wash. 283, 286, 82 P.2d 583 (1938) ("In a criminal
case, it is the sentence that constitutes the judgment
against the accused, and, hence, there can be no judgment
against him until sentence is pronounced."). Given that
"the rule announced in Williams-Walker is a new
rule" of criminal procedure, Eastmond, 173
Wn.2d at 634, settled precedent required the Court of Appeals
to consider Wences's challenge to his sentence in light
noted, "[a] new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review or not yet
final." St. Pierre, 118 Wn.2d at 326 (citing
Griffith, 479 U.S. at 328). Simply stated, "[A]ll
new rules . . . must be applied to all cases subject to
direct review at the time the rule is announced."
Id. at 325-26; see id. at 324-26
(describing the evolution of the Supreme Court's
retroactivity analysis, which this court has "attempted
from the outset to stay in step with"). "The
critical issue in applying the current retroactivity analysis
is whether the case was final when the new rule was
announced." Id. at 327. '"[F]inal'
for the purposes of retroactivity analysis . . . 'mean[s]
a case in which a judgment of conviction has been rendered,
the availability of appeal exhausted, and the time for a
petition for certiorari elapsed or a petition for certiorari
finally denied.'" Id. (quoting
Griffith, 479 U.S. at 321 n.6).
new law that arises during the pendency of a direct appeal,
appellate courts regularly reverse sentences that would have
been valid under former law and remand for resentencing.
See, e.g., State v. Hanson, 151 Wn.2d 783, 791, 91
P.3d 888 (2004) (vacating the defendant's sentence and
remanding for further proceedings because the defendant's
case was not final when the new rule was announced); see
also State v. McNeal, 142 Wn.App. 777, 786-87, 787 n.13,
175 P.3d 1139 (2008) (holding Blakely applies on
remand when the defendant's sentence is vacated on appeal
and resentencing on remand constitutes a new sentencing
proceeding). But see State v. Rowland, 174 Wn.2d
150, 155-56, 272 P.3d 242 (2012) (holding Blakely
does not apply on remand when the trial court does not
disturb factual findings or increase the defendant's
precedent makes clear that we "prefer the bright line
established by St. Pierre." Hanson, 151 Wn.2d
at 791. While we may sympathize with the desire of the lower
court and the dissent to find an exception for Wences's
particular situation, given his decision to abscond, creating
an exception for this unusual case comes at too high a cost
to established principles of finality and standards for
applying new rules of criminal procedure to cases on direct
appeal. Because we have previously recognized that
the "State may pursue [separate, ] additional charges
for the act of fleeing, " we reject introducing a
punishment paradigm into our analysis. State v.
French, 157 Wn.2d 593, 602, 141 P.3d 54 (2006); see
also Ortega-Rodriguez v. United States, 507 U.S. 234,
247, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) ("flight is
a separate offense punishable" by the trial court). At
any rate, the State acknowledges that it has accounted for
Wences's flight insofar as the State's sentencing
recommendation was "a lengthier recommendation than
would have been made had [Wences] not failed to appear [at
his sentencing hearing in 2005]." VTP (Mar. 23, 2015) at
the rule of Williams-Walker to the facts of this
case, we hold that the jury's special verdict finding
authorized only a deadly weapon enhancement, not a firearm
enhancement. See 167 Wn.2d at 899-900; see
also CP at 30 (jury finding that Wences was armed with a
"deadly weapon"). Former RCW 9.94A.510(4)(b)
(2001), recodified as RCW 9.94A.533(4)(b),
authorized a one-year deadly weapon sentence enhancement if
the defendant was armed with a deadly weapon during the
commission of a class B felony or a crime with a statutory
maximum sentence of 10 years. This stands in contrast to former
RCW 9.94A.510(3)(b) (2001), recodified as RCW
9.94A.533(3)(b), which authorized a three-year firearm
sentence enhancement if the defendant was armed with a
firearm during the commission of such a crime. Possession of
methamphetamine with intent to deliver or manufacture carried
a statutory maximum of 10 years at the time Wences committed