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WPIC 300.00 Introduction

11A WAPRAC WPIC 300.00Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 300.00 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVI. Exceptional Sentences—Aggravating Circumstances

WPIC CHAPTER 300. Exceptional Sentences—Aggravating Circumstances

WPIC 300.00 Introduction

Background. The Sentencing Reform Act (SRA) was adopted in 1981 as a determinate sentencing system for felonies. It took effect on July 1, 1984. RCW Chapter 9.94A.

Under the SRA, the period of confinement for most offenders is computed with reference to the seriousness level of the current offense and the defendant's “offender score.” The offender score is calculated based upon a determination of the defendant's prior convictions, and the age and type of those convictions. See generally, Fine, 13B Washington Practice, Criminal Law and Sentencing §§ 43:1–23 (3d ed.). A sentence based solely upon the seriousness level and the offender score is referred to as a “standard range” sentence.

The SRA allowed judges to impose a sentence outside the standard range if, considering the purposes of the SRA, the court found substantial and compelling reasons justifying such a sentence. RCW 9.94A.535. As originally enacted, the statute included a non-exclusive list of circumstances that would justify a sentence outside the standard range. The list was amended on numerous occasions, and courts frequently recognized other aggravating circumstances that would justify an exceptional sentence above the standard range. See generally, Fine, 13B Washington Practice, Criminal Law and Sentencing §§ 47:1–38 (3d ed.).

Prior to 2004, the sentencing judge determined by a preponderance of the evidence whether facts existed that would support an exceptional sentence above or below the standard range. Cases construing the SRA before its 2005 amendments should be viewed with caution.

Blakely. In 2004, the United States Supreme Court held that the Sixth Amendment right to jury applied to any facts, other than the existence of a prior conviction, that a judge might rely upon to impose a sentence above the standard range. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The Legislature amended the SRA to comply with the Blakely holding in Laws of 2005, Chapter 68, effective April 15, 2005, stating the intent of the new legislation as follows:

The legislature intends to conform the sentencing reform act, chapter 9.94A, RCW, to comply with the ruling in Blakely v. Washington, 542 U.S. … (2004). In that case, the United States [S]upreme [C]ourt held that a criminal defendant has a Sixth Amendment right to have a jury determine beyond a reasonable doubt any aggravating fact, other than the fact of a prior conviction, that is used to impose greater punishment than the standard range or standard conditions. The legislature intends that aggravating facts, other than the fact of a prior conviction, will be placed before the jury. The legislature intends that the sentencing court will then decide whether or not the aggravating fact is a substantial and compelling reason to impose greater punishment. The legislature intends to create a new criminal procedure for imposing greater punishment than the standard range or conditions and to codify existing common law aggravating factors, without expanding or restricting existing statutory or common law aggravating circumstances. The legislature does not intend the codification of common law aggravating factors to expand or restrict currently available statutory or common law aggravating circumstances. The legislature does not intend to alter how mitigating facts are to be determined under the sentencing reform act, and thus intends that mitigating facts will be found by the sentencing court by a preponderance of the evidence.
While the legislature intends to bring the sentencing reform act into compliance as previously indicated, the legislature recognizes the need to restore the judicial discretion that has been limited as a result of the Blakely decision.

Laws of 2005, Chapter 68, § 1 (effective April 15, 2005).

SRA amendments in response to Blakely. The 2005 Legislature amended the SRA in significant ways. See Laws of 2005, Chapter 68. First, the list of aggravating circumstances used to justify an upward departure from the standard sentence range is now an exclusive (not illustrative) list. RCW 9.94A.535(2) and (3). Second, the state must prove the existence of any aggravating circumstance beyond a reasonable doubt. RCW 9.94A.537(3). Third, a jury must unanimously find the existence of the aggravating circumstance except when the jury is waived, the parties stipulate to an exceptional sentence, or the exceptional sentence is based solely upon the existence of other convictions. RCW 9.94A.537(3) and RCW 9.94A.535(2).

The 2005 law also set forth certain procedures for its implementation. The state is required to provide notice to the defendant that it is alleging specified aggravating circumstances. This notice must be provided prior to trial or guilty plea. RCW 9.94A.537(1). The jury's verdict regarding any alleged aggravating circumstance must be set forth on a special interrogatory. RCW 9.94A.537(3). The statute provides that evidence supporting all but four of the aggravating circumstances shall be presented to the jury during the trial of the alleged crime. When any of those four circumstances are alleged, the evidence may be presented to the jury in a separate proceeding that immediately follows the trial on the underlying conviction. RCW 9.94A.537(4) and (5). Finally, the trial judge retains the discretion to impose a standard range or an exceptional sentence when the jury finds, unanimously and beyond a reasonable doubt, one or more of the facts alleged by the state in support of an exceptional sentence. RCW 9.94A.537(6).

The Blakely decision made a substantial change in determinate sentencing procedures. Further, the Laws of 2005, Chapter 68 made substantial substantive changes to the exceptional sentencing circumstances. Prior to Blakely, a judge's determination of whether an exceptional sentence was appropriate required consideration of three questions: (1) Is there a factual basis for the departure? (2) Does the existence of those facts, as a matter of law, justify an exceptional sentence? and (3) How large of a departure is appropriate? Cf. State v. McAlpin, 108 Wn.2d 458, 462, 740 P.2d 824 (1987) (setting out the standard of review of an exceptional sentence); State v. Nordby, 106 Wn.2d 514, 517, 723 P.2d 1117 (1986) (same). The United States Supreme Court's Blakely opinion transferred the first question to the jury.

Many portions of the SRA remain unchanged. The decision did not impact the judge's duties to determine whether the jury's factual determination justifies an exceptional sentence and the length of any such sentence. Significantly, the standard sentence range is still presumed to be appropriate for the typical felony case. The decision made no change to the rule that an exceptional sentence must be for a determinate term and cannot exceed the statutory maximum for the crime.

Caveats. The full impact of both the Blakely decision and the 2005 legislation is unknown. It is not always easy, for example, to identify the demarcation between the factual question and the legal question in the published exceptional sentence cases. The WPI Committee strove to draft instructions correctly reflecting statutory language that was itself based on the sometimes vague and ill-defined common law circumstances developed under the prior sentencing practice.

In drafting these jury instructions, the WPI Committee noted that there were no published opinions explaining some of the aggravating circumstances. When published opinions did exist, the language and reasoning frequently did not translate well to a jury instruction. See, e.g., Turner v. City of Tacoma, 72 Wn.2d 1029, 1034, 435 P.2d 927 (1967) (“That [a court] may have used certain language in an opinion does not mean that it can be properly incorporated into a jury instruction.”); Swope v. Sundgren, 73 Wn.2d 747, 750, 440 P.2d 494 (1968) (the language used by the Supreme Court “is not ordinarily designed or intended as a model for jury instructions”).

Further, there is a paucity of decisional law regarding when a unitary or bifurcated trial of the sentencing circumstances is proper in light of evidentiary and due process considerations, notwithstanding the legislative preference. Cf. State v. Monschke, 133 Wn.App. 313, 135 P.3d 966 (2006) (addressing trial judge's inherent authority to bifurcate a proceeding in the context of an aggravated murder proceeding). There was considerable debate within the WPI Committee about whether the trial judge retains the authority to dismiss circumstances that are arguably not supported by law or fact before or during trial. See, e.g., State v. Brown, 64 Wn.App. 606, 825 P.2d 350 (1992) (holding that the Knapstad procedure for dismissing criminal prosecutions before trial based on the absence of disputed facts and the undisputed facts being legally insufficient to support a finding of guilt, did not apply to the dismissal of an aggravating circumstance alleged pursuant to RCW Chapter 10.95).

Practitioners need to carefully consider the scope of sentencing decisions to which Blakely applies. For example, although the constitutional principles of Blakely do not require any jury finding to impose consecutive sentences, jury findings are nonetheless required by statute whenever the exceptional sentence is based on any of the grounds listed in RCW 9.94A.535(3). Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009); State v. Vance, 168 Wn.2d 754, 230 P.3d 1055 (2010).

It appears likely that subsequent legislation and appellate decisions will give more guidance to the WPI Committee, practitioners, and the trial courts on these and other issues. In short, judges and parties are strongly advised to consult the recent case law and any legislative amendments when using these instructions.

[Current as of March 2019.]

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