Opinion
Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, Pattie Mhoon, Attorney at Law, Fife, WA, Rita Joan Griffith, Attorney at Law, Seattle, WA, Mary Katherine Young High, Attorney at Law, Tacoma, WA, for Appellants.
Kathleen Proctor, Pierce County Prosecuting Atty Office, Tacoma, WA, John Martin Neeb, Attorney at Law, Tacoma, WA, for Respondent.
PUBLISHED IN PART
ARMSTRONG, J.
¶ 1 Campbell Alefaio, Alaivaa "Junior" Tauese, and Fred and Todd Titialii moved for accelerated review of their exceptional sentences for conspiracy to commit perjury and first degree perjury. We vacate the exceptional sentences, holding that under recent United States and Washington Supreme Court authority, all the reasons the trial court gave for imposing exceptional sentences must be found by a jury. We remand to the trial court for further sentencing procedures in accordance with this opinion.
FACTS
¶ 2 On March 29, 1997, the passenger in the front seat of a vehicle occupied by Fred Titialii, Campbell Alefaio, Ken Tuialuuluu and Alaivaa "Junior" Tauese, Jr. fired a single gunshot into a vehicle driven by Casey Harrell. The shot killed Ann Marie Harris, a passenger in Harrell's vehicle. ¶ 3 In their interviews with police, Fred, Campbell, Ken, and Junior all said that Campbell fired the shot. The police arrested Campbell and charged him with first degree murder.
¶ 4 In August 1998, shortly Before trial, Campbell told his attorney that he was not the shooter and that Ken had fired the shot. Campbell explained that he had admitted the shooting to give Ken time to speak with his family and put his affairs in order. Ken was then supposed to have come forward.
¶ 5 Campbell's attorney interviewed Lawrence Fetui, Todd Titialii, Fred, and Junior, who also said that Ken had fired the shot; they initially had agreed to say Campbell had done it and that Campbell was taking responsibility for Ken's actions.
¶ 6 At his murder trial, Campbell testified that Ken had fired the shot and that he had agreed to admit to the shooting to give Ken time to say goodbye. Fred, Lawrence, and Junior also testified that Ken was the shooter. Todd testified that he thought Ken was the shooter from the way Ken talked about it afterwards. After Campbell's acquittal, the police began a perjury investigation.
¶ 7 As a result of this investigation, the police charged Campbell, Fred, Todd, Lawrence, and Puni Alefaio, Campbell's brother, with first degree perjury and conspiracy to commit perjury. Before trial, Lawrence agreed to plead guilty to the conspiracy charge and testify for the State.
¶ 8 Lawrence testified that about a week Before he talked with Campbell's attorney, he met with Fred, Todd, and Puni, who suggested that they "flip the script" and substitute Ken's name for Campbell's and to lie if called to testify in Campbell's trial. XXXVII Report of Proceedings (RP) at 5359. Ken also testified that Campbell fired the shot.
¶ 9 A jury convicted Campbell, Junior, Todd, and Fred as charged. The jury acquitted Puni on the perjury charge and could not reach a verdict on his conspiracy charge.
¶ 10 The trial court gave each defendant an exceptional sentence. Campbell received a 180-month sentence, Fred received a 120-month sentence, and Junior and Todd received 60-month sentences.
¶ 11 To support the exceptional sentences, the court found that the crimes were substantially more egregious than in typical perjury and conspiracy cases because (1) they occurred in a first degree murder case, (2) the defendants intended Campbell to escape conviction for the killing and identified an innocent person as the killer, and (3) the defendants perjury substantially impacted the Harris family, the witnesses and their families, and the community. The court reasoned that standard range sentences were clearly too lenient in light of the Sentencing Reform Act's purposes because the standard range for first degree perjury did not account for the seriousness of the proceeding in which the perjury occurred. Thus, the disparity between the sentences for perjury and murder would reward the defendants for their conduct. The court stated that it would have imposed the same exceptional sentences under any one of these factors.
Chapter 9.94A RCW.
ANALYSIS
I. Blakely
¶ 12 The defendants argue that the sentencing court lacked the authority to find the grounds to support an exceptional sentence, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)
¶ 13 In Blakely, the Court held that " '[o]ther 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.' " Blakely, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The statutory maximum "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, 124 S.Ct. at 2537. In other words, the "statutory maximum" is the sentence a judge may impose without any additional findings, not the maximum sentence he may impose after finding additional facts. Blakely, 124 S.Ct. at 2537. When a judge inflicts punishment that the jury's verdict alone does not allow, "the jury has not found all the facts 'which the law makes essential to the punishment' and the judge exceeds his proper authority." Blakely, 124 S.Ct. at 2537 (quoting 1 J. BISHOP, CRIMINAL PROCEDURE, § 87, at 55 (2d ed. 1872)). Because the facts supporting the exceptional sentence were neither admitted by Blakely nor found by a jury, the sentence violated the defendants' Sixth Amendment rights. Blakely, 124 S.Ct. at 2538.
¶ 14 The trial court's second and third factors clearly violate Blakely. The second factor dealt with what the defendants intended by perjuring themselves; although it is reasonably obvious, the jury was not asked to and did not find beyond a reasonable doubt what the defendants intended. And the jury did not find how the perjury impacted the Harris family, the witnesses, and the community. This leaves only the trial court's finding that an aggravated sentence is appropriate because the defendants perjured themselves in a first degree murder case.
¶ 15 The State proved that the defendants committed the perjury and conspiracy in a first degree murder case to the jury beyond a reasonable doubt. The first element in Todd's "to convict" instruction was:
(1) That on or about the 26th or 27th day of October, 1998, TODD TITIALII made a materially false statement when he testified that Ken Tuialuuluu was in the front passenger seat when the car from which Ann Marie Harris was shot returned to Campbell Alefaio's residence and/or when he testified that Ken Tuialuuluu admitted firing the shot that killed Anne Marie Harris.
Clerk's Papers (CP) at 166.
¶ 16 The first element in Campbell, Fred, and Junior's instructions was:
(1) That on or about the 26th or 27th day of October, 1998, [the defendant] made a materially false statement when he testified that Ken Tuialuuluu fired the shot that killed Ann Marie Harris.
CP at 167-69.
¶ 17 Thus, the State proved to the jury beyond a reasonable doubt as Blakely requires that the defendants perjured themselves during the first degree murder trial. But the trial court also found that because of this, the defendants' conduct was "substantially more egregious than in the typical case" and the "standard range sentence is clearly too lenient in light of the purposes of the Sentencing Reform Act." LVIII RP at 8075-76.
¶ 18 The Washington Supreme Court recently overruled our "clearly too lenient" analysis from State v. Van Buren, 123 Wash.App. 634, 652-53, 98 P.3d 1235 (2004). State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 202 (2005). In Van Buren, we held that the "free crimes" analysis is a legal inquiry that trial courts may continue to make after Blakely. Van Buren, 123 Wash.App. at 653, 98 P.3d 1235. We reasoned that the "free crime" analysis involves legal reasoning only, combining the defendant's criminal history with the rule that substantial reasons exist automatically for an exceptional sentence when the defendant's high offender score coupled with multiple current offenses results in an unpunished crime. Van Buren, 123 Wash.App. at 652-53, 98 P.3d 1235.
¶ 19 The Supreme Court held that we had incorrectly interpreted State v. Smith, 123 Wash.2d 51, 864 P.2d 1371 (1993); that SmithHughes, actually held that the finding of some " 'extraordinarily serious harm or culpability resulting from multiple offenses which would not otherwise be accounted for in determining the presumptive sentencing range' was automatically satisfied." 110 P.3d at 203 (quoting Smith, 123 Wash.2d at 55-56, 864 P.2d 1371). Nonetheless, the Court overruled Smith and held that the "too lenient" conclusion based on an unpunished current offense is a factual question for the jury to resolve. Hughes, 110 P.3d at 203.
¶ 20 We can find no meaningful distinction between the "too lenient" finding based on unpunished crimes and the "too lenient" finding here based on the nature of the crime at which the defendants perjured themselves. Thus, Hughes requires that we vacate the defendants' exceptional sentences. And although Hughes also held that the superior court lacks the inherent authority to convene a jury to try a jury trial issue, the legislature has now granted the superior court such authority. Because the parties have not briefed whether the legislative amendment applies to cases on appeal, we remand for further proceedings. Hughes, 110 P.3d at 209.
¶ 21 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
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II. Same Criminal Conduct
¶ 22 The defendants argue that the trial court erred when it found that the conspiracy and perjury were not the same criminal conduct. The trial court found that the crimes were not the same criminal conduct because they did not occur at the same time and place. The defendants' principal argument is that Campbell and Junior's substantial step in the conspiracy occurred when they perjured themselves at trial.
¶ 23 The trial court must count a criminal defendant's current offenses separately when it calculates the offender score unless it finds that the offenses encompass the same criminal conduct. RCW 9.94A.589(1)(a), recodified by LAWS OF 2001, ch. 10, § 6. Multiple crimes encompass the same criminal conduct if they (1) have the same objective criminal intent, (2) are committed at the same time and place, and (3) have the same victim. State v. Lessley, 118 Wash.2d 773, 778, 827 P.2d 996 (1992). If any of these elements is missing, the crimes do not encompass the same criminal conduct and must be counted separately. Lessley, 118 Wash.2d at 778, 827 P.2d 996. We review a sentencing court's decision on same criminal conduct for an abuse of discretion or misapplication of the law. State v. Haddock, 141 Wash.2d 103, 110, 3 P.3d 733 (2000).
¶ 24 Here, the crimes did not occur at the same time. Fred and Todd were present at the meeting where the conspiracy was formed and both testified at the murder trial that Ken was the shooter. The meeting occurred around August 1998, and Fred and Todd testified in October. Campbell and Junior were not at the meeting, but Campbell told his attorneys to contact the other defendants Before trial to verify his story that Ken was the actual shooter. The attorneys did and the defendants, including Junior, verified Campbell's story. Necessarily then, Campbell and Junior had joined the conspiracy by the time the attorneys interviewed Junior. And although the conspiracy was a continuing offense from the pretrial meetings through the testimony, the actual perjured testimony occurred at trial. Under these circumstances, the conspiracy and the actual perjured testimony occurred at different times. See State v. Price, 103 Wash.App. 845, 856, 14 P.3d 841 (2000).
¶ 25 We vacate the exceptional sentences and remand to the trial court.
We concur: MORGAN, A.C.J., and HUNT, J.