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State v. Wences

Supreme Court of Washington, En Banc

November 30, 2017

STATE OF WASHINGTON, Respondent,
v.
MARCO BAILON WENCES, Petitioner.

          STEPHENS, JUDGE

         In 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."

         In 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)).

         The 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 July 25, 2016) (unpublished), https://www.courts.wa.gov/opinions/pdf/733338.pdf. 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 Williams-Walker.

         BACKGROUND FACTS AND PROCEDURAL HISTORY

         Following 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.

         Wences 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).

         Building 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 deadly-weapon-other-than-a-firearm sentence 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.

         In 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. at 899.

         In 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.

         Wences 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.[1]

         Wences 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.

         ANALYSIS

         We must 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[2] 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 of Williams-Walker.

         As 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).[3] 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).

         Applying 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 sentence).

         Our 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.[4] 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 3.

         Applying 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.[5] 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 ...


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