State v. Jones

¶1 —Ajury found Darrell Jones guilty of possession of cocaine. At a separate trial, another jury found Reginald Thomas guilty of assault in the second degree. In each case, the sentencing court determined that the defendant before it was under community placement at the time of the offense for which he was being sentenced. Pursuant to former RCW 9.94A.525(17) (2002),1 the respective sentencing courts added one point to the defendants’ offender scores. Each defendant appealed to Division One of the Court of Appeals, and the appeals were consolidated. That court reversed the trial courts, holding that under Blakely v. Washington2 and Apprendi v. New Jersey,3 the jury, rather than the sentencing judge, must find that the defendant was on community placement before the sentenc*234ing judge may add a point to the offender score. We granted review and conclude that because community custody is directly related to and follows from the fact of a prior conviction and because the attendant factual determinations involve nothing more than a review of the nature of the defendant’s criminal history and the defendant’s offender characteristics, such a determination is properly made by the sentencing judge. Therefore, we reverse the Court of Appeals and uphold the sentences imposed on Jones and Thomas.

*234I

STATE v. JONES

¶2 Darrell Jones was charged with one count of unlawful possession of cocaine in violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. Following a jury trial, Jones was convicted. At his sentencing hearing, the trial court calculated Jones’s offender score as 7, based upon his four prior adult felony convictions and four prior juvenile felony convictions, and because Jones was on community placement at the time he committed the present offense. Jones’s Verbatim Report of Proceedings at 3 (Oct. 10, 2003). Jones disputed that he was on community placement, notwithstanding his admission that he reported to his community corrections officer shortly before the current offense occurred. The sentencing judge concluded by a preponderance of the evidence that Jones was on community placement at the time he committed the crime of possession of cocaine.

¶3 Jones’s standard range sentence, based on an offender score of 7, was 22 to 29 months in custody. Absent the community placement determination, Jones’s standard range sentence would have been 17 to 22 months. The sentencing court ultimately imposed a drug offender sentencing alternative of 12.75 months of incarceration and 12.75 months of community custody.

*235 STATE v. THOMAS

¶4 Reginald Thomas was found guilty by a jury of assault in the second degree. At sentencing, the trial court judge calculated Thomas’s offender score as 8, based upon his seven previous felony convictions and because he was on community placement at the time of the current assault offense. Thomas’s Verbatim Report of Proceedings at 2 (Feb. 13, 2004). Thomas did not object to the sentencing court’s calculation of his offender score.4

¶5 Based upon the offender score of 8, Thomas’s standard range sentence was 53 to 70 months. Without the community placement determination, his standard range sentence would have been 43 to 57 months. The sentencing court imposed a sentence of 60 months of incarceration and 18 to 36 months of community custody. Clerk’s Papers at 65, 67-68.

II

¶6 Jones and Thomas each appealed his sentence to the Court of Appeals, Division One, and their appeals were consolidated. They argued there that the respective sentencing judges violated their Sixth Amendment right to a jury trial when the judges, rather than a jury, determined that they were on community placement at the time of the present crimes and used that determination to increase their standard range sentences. The Court of Appeals reversed, *236concluding that a defendant’s status on community placement at the time of the current offense is a fact that must, under decisions of the United States Supreme Court in Apprendi and Blakely, be found by a jury beyond a reasonable doubt. In reaching its decision, the court read the prior conviction exception narrowly and rejected the State’s argument that the question of whether one convicted of a crime is on community placement at the time of the current offense is a determination that falls within the prior conviction exception set forth in Apprendi and Almendarez-Torres v. United States.5 State v. Jones, 126 Wn. App. 136, 107 P.3d 755 (2005).

¶7 The State petitioned our court for review, and we granted its petition. State v. Jones, 155 Wn.2d 1017 (2005). We also granted Jones’s and Thomas’s cross petition for review to address their contention that double jeopardy principles prevented the State from proving their community placement status to a jury on remand should we find constitutional error.6 We did, however, deny Jones’s request that we review the trial court’s denial of his motion to suppress.

Ill

¶8 Under this State’s determinant sentencing scheme, once a defendant has been convicted of a felony, the sentencing judge determines the defendant’s standard range sentence based on the seriousness level of the current offense and the defendant’s offender score. RCW 9.94A-.530(1), .510. The defendant’s offender score is determined by his or her other convictions, with the scoring of those prior convictions dependent upon the nature of the current offense. RCW 9.94A.525. One criterion used by a sentencing court to calculate the offender score is found in former RCW *2379.94A.525(17). It provides that one point shall be added to the defendant’s offender score “[i]f the present conviction is for an offense committed while the offender was under community placement.” The term “community placement” is defined as the “period during which the offender is subject to the conditions of community custody and/or postrelease supervision.” RCW 9.94A.030(7).

¶9 The primary question presented to us is whether a defendant has a right under the United States Constitution to have the jury that determined his guilt, rather than the sentencing judge, decide whether he was on community placement at the time he committed his current crime. This is an issue of first impression in Washington. Like all constitutional challenges, we review it de novo. State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005) (citing State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004)).

¶10 Jones and Thomas rely on the decisions of the United States Supreme Court in Apprendi and Blakely as support for the contention that it is the jury, rather than the sentencing judge, that must examine the documents outlining their criminal history to determine whether they were on community placement for prior offenses at the time they committed the current offenses. They contend additionally that this determination, though “related” to a prior conviction, does not fall within the Almendarez-Torres prior conviction exception to the jury trial requirement.

¶11 The Court of Appeals agreed with Jones and Thomas that under the Sixth Amendment to the United States Constitution, the jury is to make the community placement determination. Jones, 126 Wn. App. at 144. In reaching this conclusion, the Court of Appeals recognized that both Blakely (crime committed with deliberate cruelty) and Apprendi (crime committed with a racial hatred motivation) involved statutes that authorized the trial judge to increase punishment on the basis of a factual circumstance related to the current offense (as opposed to imposing increased punishment based upon facts related to the *238defendant’s recidivism, as is the case here). The court further recognized that the United States Supreme Court had been careful to preserve the prior conviction exception it articulated in Almendarez-Torres. Despite these acknowledgments, the Court of Appeals held that the prior conviction exception is limited to exempting from the reach of Apprendi and Blakely only the basic fact of a prior conviction and does not extend to cover the review and determination of the defendant’s community custody status. It concluded also that the question of whether the defendant is under community supervision at the time of the current offense is excluded from the prior conviction exception because that determination cannot be determined from the fact of a prior conviction as “[t]oo many variables are involved.” Id. at 143.

¶12 The State challenges what it claims is the Court of Appeals’ narrow reading of Almendarez-Torres, asserting that, as demonstrated by the decisions in Apprendi, Blakely, and, most recently, United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the United States Supreme Court continues to recognize the prior conviction exception and that a full consideration of the history and reasoning behind the exception reveals that it is not limited to the mere fact of the prior conviction. Suppl. Br. of Pet’r at 7. The State argues that the prior conviction exception broadly encompasses determinations flowing from the fact of a prior conviction, such as whether the defendant was still under supervision at the time of his current crime. Id. at 5. Furthermore, the State asserts that a defendant’s status on community placement is a recidivist fact question and, as such, is the type of inquiry that judges traditionally, and properly, perform as a part of their sentencing role. Finally, the State contends that because a defendant’s custody status has been established by procedures that satisfy and safeguard constitutional jury trial and reasonable doubt guaranties, Apprendi specifically allows the court, rather than the jury, to undertake and make the community placement determination as a matter of law. Id. at 13-14.

*239¶13 As the parties’ arguments suggest, resolution of the disputed issue in this case involves two related inquiries: (1) the breadth of the Almendarez-Torres prior conviction exception and (2) the safeguards associated with the inquiry that is to be made by the sentencing court under former RCW 9.94A.525(17). While we fully address each of these inquiries, for reasons"stated below, we conclude that the United States Constitution does not require a jury to examine the record associated with a prior criminal conviction to determine the defendant’s community placement status. In our view, the nature of the inquiry that must be conducted for the community placement determination — an examination strictly limited to a review and interpretation of documents (such as the prior judgment and sentence) that are part of the judicial record created by a prior conviction — is an issue of law that is properly entrusted to the sentencing court and falls within the prior conviction exception.

A. The Scope of the Prior Conviction Exception

¶[14 The prior conviction exception arises from the United States Supreme Court’s decision in Almendarez-Torres, 523 U.S. 224.7 There, the Court rejected the defen*240dant’s claim that his prior felony convictions were elements of his current crime which had to be pleaded in the indictment and proved to a jury beyond a reasonable doubt. In reaching its conclusion that a prior felony conviction is a sentencing factor appropriate for the court’s determination and not a fact issue for the jury to determine, the Supreme Court recognized that a defendant’s recidivism “is a traditional, if not the most traditional, basis for a sentencing court[ ]” to increase the reoffender’s current sentence. Id. at 243. It indicated that were it to hold that the United States Constitution requires the defendant’s recidivism be deemed an element of the petitioner’s offense to be proved to the jury beyond a reasonable doubt, such a holding would mark an abrupt departure from a long-standing tradition of treating recidivism as “ ‘go[ing] to the punishment only.’ ” Id. at 244 (alteration in original) (quoting Graham v. West Virginia, 224 U.S. 616, 629, 32 S. Ct. 583, 56 L. Ed. 917 (1912)).

¶15 Some two years after its decision Almendarez-Torres, the United States Supreme Court decided Apprendi, 530 U.S. 466. The Court revisited the role of recidivism in sentencing. It held unconstitutional a New Jersey “hate crime” statute that allowed the trial court to decide the truth of a racial bias motivation allegation under a preponderance of the evidence standard. The Court determined that the defendant was entitled to a jury trial, with a beyond-a-reasonable-doubt standard of proof, on the question of whether the defendant was motivated by racial bias to commit the crime. In reaching its decision, however, the Court reaffirmed the Almendarez-Torres exception, noting that a prior conviction need not be determined by a jury because of the procedural safeguards attached to any fact of prior conviction and due to the traditional use by states of recidivism facts to provide for sentence enhancements. Although the Court of Appeals acknowledged here that it had no reason to question the prior conviction exception’s *241continued viability, it held that the community placement question does not fall within the exception because it should be read narrowly to include only the mere fact of a prior conviction and should not include facts that flow directly from the fact of a prior conviction. Jones, 126 Wn. App. at 144. We disagree.

¶16 In our judgment, the prior conviction exception encompasses a determination of the defendant’s probation status because probation is a direct derivative of the defendant’s prior criminal conviction or convictions, and the determination involves nothing more than a review of the defendant’s status as a repeat offender. In this regard, the community placement conclusion does not implicate the core concern of Apprendi and Blakely — that is, the determination does not involve in any way a finding relating to the present offense conduct for which the State is seeking to impose criminal punishment and/or elements of the charged crime or crimes. To give effect to the prior conviction exception, Washington’s sentencing courts must be allowed as a matter of law to determine not only the fact of a prior conviction but also those facts “intimately related to [the] prior conviction” such as the defendant’s community custody status. United States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005); accord United States v. Mattix, 404 F.3d 1037, 1038 (8th Cir. 2005) (per curiam) (Eighth Circuit notes that courts have long considered prior criminal history as a sentencing factor for a court to decide rather than a fact issue for the jury and that the Supreme Court has not changed that rule (pointing to Booker and Shepard v. United States, 544 U.S. 13, 27, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005))).

¶17 In support of our holding, we take note of and rely heavily upon the following considerations. First, former RCW 9.94A.525(17) is not an exceptional sentence statute and allows for a point to be added to the offender score only when the defendant is a recidivist. Thus, the statutory provision not only does not implicate exceptional sentences; it also falls squarely within the parameters of the prior *242conviction exception carved out by the United States Supreme Court. Accord Blakely, 542 U.S. 296 (judicial fact finding permitted when establishing the standard range sentence).

¶18 Second, our holding is consistent with Washington law. Since the Sentencing Reform Act of 1981, chapter 9.94ARCW, was enacted, sentencing courts have permissibly engaged in judicial fact finding about a defendant’s recidivism when arriving at a legal conclusion about the appropriate punishment to be imposed for the current crime. Accordingly, while the United States Supreme Court recognized in Apprendi that tension existed between the rationale of its underlying decision requiring a jury to find any fact that increases the maximum penalty for a crime and its rule permitting a court, rather than a jury, to determine sentence enhancements that are based upon a defendant’s prior convictions, the Court declined to overrule its prior case law pertaining to recidivist sentencing provisions. Apprendi, 530 U.S. at 489-90. We likewise decline to disturb the traditional role Washington’s judges play when considering the import of a defendant’s past unlawful conduct upon his current sentence. On this point, it is notable that another division of the Court of Appeals, Division Three, has recognized more recently that a sentencing court’s determination of an offender’s community placement status does not run afoul of Blakely because that determination falls within prior conviction exception. See State v. Brown, 128 Wn. App. 307, 116 P.3d 400 (2005) (Blakely does not compel a jury determination of the fact that the defendant was on probation at the time of his current offense); State v. Hunt, 128 Wn. App. 535, 116 P.3d 450 (2005) (the exception for prior convictions encompasses whether an accused is on community custody at the time of his current offense). We agree with that court’s reasoning.

¶19 Finally, our holding is also in line with numerous out-of-state and federal court decisions that have interpreted the Almendarez-Torres exception more broadly than did the Court of Appeals here. See United States v. *243Corchado, 427 F.3d 815, 820 (10th Cir. 2005) (holding that the enhancement of a defendant’s criminal history category based upon his probation status does not violate the Sixth Amendment), cert. denied, 547 U.S. 1086 (2006); State v. Stewart, 368 Md. 26, 791 A.2d 143 (2002) (the AlmendarezTorres exception covers questions related to recidivism, not merely the fact of a prior conviction); People v. Thomas, 91 Cal. App. 4th 212, 110 Cal. Rptr. 2d 571, 579 (2001) (concluding that in terms of recidivism findings that enhance a sentence and that are unrelated to the elements of a crime, Almendarez-Torres is the controlling authority and that the language in Apprendi relating to the “ ‘fact of a prior conviction’ ” should be read broadly to include all determinations involving recidivism); State v. Dixon, 346 N.J. Super. 126, 787 A.2d 211, 221 (2001) (“ ‘we read Apprendi as leaving to the judge, consistent with due process, the task of finding not only the mere fact of previous convictions but other related issues as well’ ” (quoting United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001))).

¶20 In sum, contrary to Division One of the Court of Appeals’ and Jones’s and Thomas’s narrow reading of the prior conviction exception, we read the Almendarez-Torres prior conviction exception to encompass facts that follow necessarily or as a matter of law from the fact of a prior conviction, such as the defendant’s community placement status.

B. The Community Placement Determination

¶21 The second reason identified by the United States Supreme Court in Apprendi for excluding a prior conviction related determination from a jury’s consideration is that prior convictions have been established by procedures that satisfy constitutional due process and Sixth Amendment guaranties. Apprendi, 530 U.S. at 488; accord Jones v. United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). In this case, Jones and Thomas do not *244challenge the fact that their status on community placement necessarily followed from a determination that they had prior convictions. They also do not argue that the prior convictions from which the sentencing courts in these cases based their community placement determinations lacked constitutionally required procedural safeguards.

¶22 Rather, Jones, Thomas, and the dissent argue more generally that the community placement determination under Washington law involves too many “variables” to be equivalent to finding the mere fact of a prior conviction. Resp’ts’ Answer to Pet. for Review at 9; see dissent at 250. In making this argument, they assert that because a sentencing judge may have to consider factors beyond the existence of the prior conviction and that because such considerations could be complex or even challenged,8 “[t]he procedural safeguards necessary to the prior conviction exception are not present” in the community placement determination. Resp’ts’ Answer to Pet. for Review at 10. Again, we disagree.

¶23 Similar to the determination of a fact or character of prior conviction, a sentencing judge can readily determine a defendant’s probation status on the date he committed the present crime merely by reviewing court records relating to that prior conviction. Washington law specifies that in making the community placement determination, the sentencing court is limited in the type of evidence that it may review. It may rely on the judgment and sentence from the prior crime, the criminal history submitted, and those documents flowing from the prior conviction and sentence, *245such as the presentence report and Department of Corrections’ records. See, e.g., RCW 9.94A.480, .500.

¶24 The sentencing court’s review of the records submitted does not contemplate that the court will make an independent determination regarding the defendant’s culpability with respect to the current offense. Instead, as was the nature of the sentencing court’s review in this case, the community placement review simply consists of an examination of criminal history and a determination by the sentencing court of whether that record demonstrates that the defendant before it was or was not on community placement at the time he or she committed the current crime for which he or she is being sentenced. Like the inquiry associated with the fact of a prior conviction, this type of inquiry (1) is inherently reliable, (2) arises out of a prior conviction based upon a finding of guilt by a trier of fact or the defendant’s guilty plea, and (3) is the type of inquiry traditionally performed by judges as part of the sentencing function. Accord United States v. Carrillo-Beltran, 424 F.3d 845, 848 (8th Cir. 2005) (“A court must be allowed to determine not only the Tact of a prior conviction’ but also those facts so ‘intimately related’ to the prior conviction to [give meaning to] the Apprendi exception.”), cert. denied, 546 U.S. 1193 (2006); State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005) (given that the fact that defendant is on probation is analogous to the fact of a prior conviction and can be determined by reviewing court records relating to the prior conviction, “constitutional considerations do not require [probation status] to be determined by a jury”), cert. denied, 547 U.S. 1106 (2006).

¶25 Despite acknowledging that a defendant’s community placement status is a determination about a prior conviction, Jones and Thomas argue, based on the United States Supreme Court’s decision in Shepard, 544 U.S. at 25, that the community placement determination is not the actual fact of a prior conviction and, consequently, is too far removed to have the conclusive significance of a conviction document. See Suppl. Br. of Resp’ts at 10. We are not *246persuaded that Shepard controls the precise issue before us. We say that because that case involved whether, under the federal Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e), a later court could look to police reports or complaint applications in determining whether a guilty plea in an earlier criminal proceeding formed the basis for a conviction of “generic” burglary, thereby qualifying the defendant for a minimum 15-year sentence. Furthermore, the case was ultimately resolved as a matter of federal statutory interpretation. Shepard, 544 U.S. at 16. However, to the extent that case applies, it favors our holding.

¶26 Not only did the United States Supreme Court in Shepard once again acknowledge the “prior conviction” exception, the Court also held that later sentencing courts may consider documents beyond the prior judgment and sentence to support prior-offense-based sentencing determinations. Specifically, the Court held that the sentencing court may make the relevant prior conviction determination by looking to the jury instructions, the charging documents, the plea agreement, the transcript of plea colloquy, any explicit factual finding by the trial judge to which the defendant assented, and any “comparable judicial record.” Id. at 26. It did say that police reports and complaint applications run afoul of Apprendi because disputed facts in those types of reports are “too much like the findings subject to .. .Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id. at 25.

¶27 Police reports and complaint applications are not at issue here. The record shows the respective sentencing courts reviewed the defendants’ criminal history and community placement status, as contained in the presentence report, when determining whether each was under community placement at the time he committed the present offenses. This is the type of judicial inquiry that guarantees the conclusive significance that is the focus of Apprendi and that also contains the procedural safeguards established by the fact of the prior conviction.

*247¶28 In sum, because the community placement sentence determination is a determination about a defendant’s status as recidivist, does not require the independent judgment of a fact finder about facts related to a defendant’s commission of the current offense, and can be readily determined by a limited examination of the record flowing from the prior conviction, we conclude that a court, rather than a jury, may, pursuant to Almendarez-Torres, make, constitutionally, the former RCW 9.94A.525(17) community placement determination.

IV

¶29 In light of our determination that Jones and Thomas were not entitled to have a jury, rather than the sentencing court, determine whether they were under community placement at the time they committed the present crimes for which they were convicted, we do not reach the State’s alternative argument that any error committed by the sentencing court in this regard was harmless. In addition, our holding has rendered moot Jones and Thomas’s challenge that double jeopardy would prevent the State from proving their community placement status to a jury on remand.

V

¶30 Unlike the criminal defendants in Blakely and Apprendi, neither Jones nor Thomas improperly received an exceptional sentence based on an aggravating fact relating to his current offense. Rather, under Washington law, a condition of a prior conviction and sentence served to increase their standard range sentences in the same way as the fact of their prior convictions did. The community placement status determination under former RCW 9.94A-.525(17) relates only to the defendant’s status as a recidivist and is readily established as a matter of law by a review of criminal history that incorporates constitutional safeguards. Therefore, we conclude that determination properly *248falls within the Almendarez-Torres prior conviction exception. Because the Court of Appeals held otherwise and thereby extended Blakely’s jury trial requirement to the community placement determination, we reverse the Court of Appeals and affirm Thomas’s and Jones’s sentences.

C. Johnson, Bridge, Chambers, Owens, Fairhurst, and J.M. Johnson, JJ., concur.