Supreme Court of the State of Washington 

Opinion Information Sheet

Docket Number: 79068-0
Title of Case: State v. Davis
File Date: 05/22/2008
Oral Argument Date: 10/09/2007

Appeal from Spokane County Superior Court
Honorable Jerome J Leveque

Gerry L. Alexander Signed Majority
Charles W. Johnson Signed Majority
Barbara A. Madsen Majority Author
Richard B. Sanders Signed Majority
Tom Chambers Signed Dissent
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Dissent Author
Debra L. Stephens Did Not Participate
Bobbe J. Bridge,
Justice Pro Tem. Signed Majority


Counsel for Petitioner(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Steven J. Tucker
Attorney at Law
1100 W Mallon Ave
Spokane, WA, 99260-2043

Mark Erik Lindsey
Spokane County Prosecuting Attorneys
1100 W Mallon Ave
Spokane, WA, 99260-2043


) No. 79068-0
Respondent, )
v. ) En Banc
Petitioner. ) Filed May 22, 2008

MADSEN, J. -- Shortly after the United States Supreme Court issued

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),

Anthony Davis was tried and convicted of multiple offenses arising from a

domestic dispute involving Bobbi Dewey and her daughter, T.D.B. The State

alleged the crimes against T.D.B. were aggravated by her "particular

vulnerability." Under then-applicable provisions of chapter 9.94A RCW, the

Sentencing Reform Act of 1981 (SRA), the trial court was required to find the

existence of that statutory aggravating factor. In view of Blakely, however, the

trial court submitted the aggravating factor to the jury by special interrogatory

No. 79068-0

rather than make the factual determination itself. Based on the jury's response to

the special interrogatory, the trial court imposed an exceptional sentence. The

Court of Appeals affirmed. State v. Davis, 133 Wn. App. 415, 138 P.3d 132


We hold the jury's response to the special interrogatory is void and cannot

support Davis's exceptional sentence because the trial court exceeded its authority

by delegating its fact-finding duty to the jury. Trial courts may not deviate from

the legislatively prescribed exceptional sentencing procedures, whether at trial or

on remand. Thus, we vacate Davis's exceptional sentence and remand for



By amended information, the State charged Davis with two counts each of

second degree assault and unlawful imprisonment (against Dewey and T.D.B.),

and one count each of harassment, third degree malicious mischief, and violation

of a domestic violence criminal protection order. Clerk's Papers (CP) at 2-3. The

State alleged the assault and unlawful imprisonment offenses against T.D.B. were

aggravated by her particular vulnerability, "as provided by RCW
9.94A.535(2)(b)."1 CP at 2-3.

1 Former RCW 9.94A.535 (2003) provides: "The court may impose a sentence outside
the standard sentence range for an offense if it finds, considering the purpose of this
chapter, that there are substantial and compelling reasons justifying an exceptional
sentence." (Emphasis added.) Former RCW 9.94A.535(2)(b) (2003) provides: "The
defendant knew or should have known that the victim of the current offense was


No. 79068-0

The jury found Davis guilty of harassment, malicious mischief, violation of

a protection order, the lesser-included offenses of fourth degree assault, and
unlawful imprisonment of T.D.B.2

By special interrogatory, the jury found that when Davis unlawfully

imprisoned T.D.B., he knew or should have known "the victim was particularly

vulnerable and incapable of resistance due to extreme youth." CP at 55.

Based on the jury's response to the special interrogatory, the court imposed

an exceptional sentence of 12 months on the unlawful imprisonment conviction or

four months above the maximum standard range sentence for that offense. The

court imposed a 365-day suspended sentence for each of the gross misdemeanor

offenses, consecutive to the felony offenses, for a total term of 24 months. CP at


On appeal, Davis argued the trial court impermissibly altered the sentencing
procedures of the SRA by submitting the special interrogatory to the jury.3 The

Court of Appeals disagreed. The court held a trial court could submit aggravating

factors to a jury during the guilt phase of a trial even though, following State v.

particularly vulnerable or incapable of resistance due to extreme youth, advanced age,
disability, or ill health." The legislature further provided the existence of facts supporting
an exceptional sentence need not be proved beyond a reasonable doubt, but only by a
preponderance of the evidence. Former 9.94A.530(2) (2002).
2 The jury found Davis not guilty of unlawful imprisonment of Dewey.
3 Davis also argued that prosecutorial misconduct requires reversal of his convictions and
that insufficient evidence supports the unlawful imprisonment conviction. The Court of
Appeals rejected those arguments and they are not at issue here.


No. 79068-0

Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), it lacked authority to impanel a

special sentencing jury for that purpose on remand. Davis, 133 Wn. App. 415.

This court granted Davis's petition for discretionary review on the

exceptional sentence issue. State v. Davis, 159 Wn.2d 1019, 157 P.3d 404 (2007).


On June 24, 2004, the United States Supreme Court issued its decision in

Blakely. Blakely rendered the mechanism for imposing an exceptional sentence

under the SRA unconstitutional in certain applications. The legislature responded

to Blakely by enacting Laws of 2005, chapter 68 (2005 amendment), which

became effective on April 15, 2005. The 2005 amendment provides a valid

procedure whereby juries may be charged with making findings in support of an

exceptional sentence. State v. Pillatos, 159 Wn.2d 459, 473, 150 P.3d 1130

(2007). However, the 2005 amendment expressly provides the statute applies only

to cases where trial has not yet begun, or a guilty plea accepted, on its effective

date. Id. at 474. Davis was tried in January 2005, several months before the

effective date of the 2005 amendment, so the statute does not apply to him.

In both Pillatos and Hughes, we rejected the argument that a trial court

could deviate from legislatively prescribed exceptional sentencing procedures

during the period between Blakely and the effective date of the 2005 amendment.

Before the legislature enacted the 2005 amendment, this court held that trial courts


No. 79068-0

could not impanel sentencing juries, on remand, to find the facts necessary to

support an exceptional sentence, because the SRA "explicitly directs the trial court

to make the necessary factual findings and does not include any provision allowing

a jury to make those determinations during trial, during a separate sentencing

phase, or on remand." Hughes, 154 Wn.2d at 149 (emphasis added). Following

the enactment of the 2005 amendment, we concluded, consistently with Hughes,

that trial courts lack authority during trial to submit special interrogatories to juries

in deviation from the SRA's exceptional sentence procedures. Pillatos, 159

Wn.2d at 474.

The State attempts to distinguish Pillatos on the ground it addresses only

the court's authority to impanel a sentencing jury, not a court's authority to submit

a special interrogatory to a guilt-phase jury.

Pillatos cannot be read so narrowly. Indeed, we accepted review in Pillatos

to address whether juries could be asked to find statutory aggravating factors

during trial or at sentencing. Following the enactment of the 2005 amendment,

this court expanded review to include the validity and applicability of that


Pillatos involved the consolidated appeals of four defendants. Two of the

defendants were not yet sentenced while two were not yet convicted, including

James Metcalf. The State charged Metcalf with second degree murder. Following


No. 79068-0

Blakely, the State amended the information to add the statutory aggravating factors

of "deliberate cruelty" and the victim's "particular vulnerability." Pillatos, 159

Wn.2d at 467. The trial court denied the motion, concluding it lacked the

authority to submit those factors to the jury. This court affirmed the trial court's

decision. Id. at 480. Thus, in Pillatos, we rejected the use of special

interrogatories during the guilt phase of the trial, in deviation from applicable

exceptional sentence procedures.

The Court of Appeals, which did not have the benefit of Pillatos when it

decided this case, agreed with the State that "Hughes is inapplicable" because it

dealt only with a trial court's authority "on remand," while expressly reserving the

question "'whether juries may be given special verdict forms or interrogatories to

determine aggravating factors at trial.'" Davis, 133 Wn. App. at 427 (quoting

Hughes, 154 Wn.2d at 149). The Court of Appeals reasoned that RCW 2.28.150

and CrR 6.16(b) supplied the necessary authority. Davis, 133 Wn. App. at 427.

RCW 2.28.150 provides that "if the course of proceeding is not specifically

pointed out by statute, any suitable process or mode of proceeding may be adopted

which may appear most conformable to the spirit of the laws." The Court of

Appeals appears to have reasoned that an unconstitutional statute is not a "statute"

within the meaning of RCW 2.28.150. Davis, 133 Wn. App. at 427. Thus,

following Blakely, there was no longer a procedure "'specifically pointed out by


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statute'" for finding facts in support of an exceptional sentence. Id. (quoting RCW


CrR 6.16(b) authorizes a trial court to submit special interrogatories to

juries to make special findings "which may be required or authorized by law."

The Court of Appeals agreed with the State that the use of special interrogatories

to find aggravating factors was "required" by law, following Blakely. Davis, 133

Wn. App. at 428.

Division One of the Court of Appeals applied the same reasoning in State v.

Harris, 123 Wn. App. 906, 922-26, 99 P.3d 902 (2004), overruled by Hughes, 154

Wn.2d 118, in the context of deciding whether trial courts could impanel special

sentencing juries to find statutory aggravating factors. Harris was one of the first

published cases following Blakely to provide guidance to lower courts pending a

legislative solution. In Harris, the court sanctioned the use of special sentencing

juries to conform exceptional sentencing procedures to constitutional

requirements. In the court's view, the unconstitutional provisions in the SRA,

requiring judicial fact-finding of aggravating factors according to a preponderance

of the evidence standard of proof, were severable from the rest of the exceptional

sentencing scheme. Once severed, trial courts had authority under RCW 2.28.150

and CrR 6.16(b) to supply procedures necessary to correct the constitutional

deficiencies identified in Blakely. Harris, 123 Wn. App. at 923-25.


No. 79068-0

This court overruled Harris in Hughes, stating:

[W]e disagree with that conclusion as well as the court's reasoning
supporting it -- that because there is nothing in the statute to prohibit
the procedure and because trial courts have some inherent authority
to imply procedures where they are absent, that we could do so here
in the face of legislative intent to the contrary. We reach the
opposite conclusion.

Hughes, 154 Wn.2d at 152 n.16.

The State cites to numerous cases where this court has validated a trial

court's authority to imply a procedural mechanism for enforcing a defendant's jury

trial right. However, these cases all involve situations where the statute was silent

or ambiguous with respect to the relevant procedure. State v. Becker, 132 Wn.2d

54, 61, 935 P.2d 1321 (1997) (use of special verdict to determine school drug zone

sentence enhancement; statute silent regarding procedure); State v. Rivers, 129

Wn.2d 697, 703, 921 P.2d 495 (1996) (use of special sentencing jury to determine

persistent offender status under the "three strikes" law; statute silent regarding

procedure); Abad v. Cozza, 128 Wn.2d 575, 588, 911 P.2d 376 (1996) (district

court had authority to adopt local rule to implement deferred prosecution statute;

statute silent regarding procedure); State v. Frederick, 100 Wn.2d 550, 553, 674

P.2d 136 (1983) (use of special jury to adjudicate habitual offender status; statute

silent regarding procedure), overruled in part on other grounds by Thompson v.

Dept. of Licensing, 138 Wn.2d 783, 982 P.2d 601 (1999); State v. Courser, 199

Wash. 559, 560, 92 P.2d 264 (1939) (use of jury to adjudicate habitual offender


No. 79068-0

status; statute silent regarding procedure); State v. Fowler, 187 Wash. 450, 451, 60

P.2d 83 (1936) (use of jury to adjudicate habitual offender status; statute silent

regarding procedure); Rogoski v. Hammond, 9 Wn. App. 500, 503-04, 513 P.2d

285 (1973) (trial court had authority to hold a prejudgment attachment hearing;

statute silent regarding procedure).

In contrast, in 1981 our legislature made a deliberate decision to adopt a

determinate sentencing scheme, the SRA, which intentionally narrowed judicial

discretion. Central to the SRA is a detailed sentencing matrix, which yields a

standard range sentence. The sentencing court is bound to impose a standard

range sentence unless the statutory requirements for an aggravated or mitigated

sentence are established. In Blakely, the United States Supreme Court held that

aggravating factors which increase the sentence above the standard range are in the

nature of additional elements that must be proved beyond a reasonable doubt. See

Blakely, 542 U.S. at 301-02. After Blakely, our legislature was required to make a

policy decision about the role of judges in sentencing. It could have rendered

exceptional sentences discretionary, as in the analogous federal sentencing

scheme. Alternatively, the legislature could have elected to limit judicial

discretion, necessitating jury trials on aggravating elements with proof beyond a

reasonable doubt. See United States v. Booker, 543 U.S. 220, 250, 258, 265, 125

S. Ct. 738, 160 L. Ed. 2d 621 (2005) (setting forth these alternatives and inferring


No. 79068-0

Congress would have given judges discretion in sentencing rather than allocate

fact-finding to juries had it known mandatory federal sentencing guidelines were

unconstitutional). In light of the policy judgments reflected in the SRA, and its

detailed nature, this court has deferred to the legislature to decide on a procedure

following Blakely.

As we explained in Hughes, when the legislature provides a detailed

procedure, later deemed invalid, courts should refrain from creating a procedure

from "'whole cloth'" in order to "'rescue[] a statute from a charge of

unconstitutionality.'" Hughes, 154 Wn.2d at 151 (quoting State v. Martin, 94

Wn.2d 1, 18, 614 P.2d 164 (1980) (Horowitz, J., concurring)); see also Booker,

543 U.S. at 250 (declining to engraft a constitutional jury trial requirement onto

the federal sentencing guidelines as plainly contrary to legislative intent). Thus, in

Hughes, this court declined to imply a procedure for allowing juries to find

statutory aggravating factors on remand. Hughes, 154 Wn.2d at 150 ("'it would be

a clear judicial usurpation of legislative power for us to correct [a] legislative

oversight'" (quoting Martin, 94 Wn.2d at 8 (refusing to imply a procedure for

impaneling a sentencing jury in capital cases where defendant pleads guilty))); see

also State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981) (refusing to infer such

a sentencing procedure from a general statute where the legislature failed to

provide a procedure in a more specific statute relating to death penalty).


No. 79068-0

Although we limited our holding to the facts of that particular case, our

reasoning in Hughes applies with equal force to proceedings at trial. See In re

Pers. Restraint of Hall, No. 75800-0 (Wash. Apr. 3, 2008); State v. Womac, 160
Wn.2d 643, 160 P.3d 40 (2007); Pillatos, 159 Wn.2d 459.4

At the time Davis was tried, the SRA required the judge, not the jury, to

find the existence of the statutory aggravating factor at issue, according to the

preponderance of the evidence standard of proof. Former RCW 9.94A.530(2)

(2002); former RCW 9.94A.535(2) (2003); Hall, No. 75800-8, slip op. at 7, 9.

The trial court could neither delegate its fact-finding duty to the jury, nor impose a

more demanding standard of proof. Id. at 9. Even though Davis's jury expressly

found, beyond a reasonable doubt, the victim was "particularly vulnerable," that

finding cannot support the imposition of an exceptional sentence under then-
existing law.5 See id. at 10 (concluding "it was procedurally impossible" for a jury

4 The dissent's analysis amounts to a reiteration of the Court of Appeals' reasoning in
Harris, 123 Wn. App. 906, which we rejected first in Hughes, and again in Pillatos,
Womac, and Hall. Although the dissent considers these cases "wrongly decided," it offers
no previously unconsidered rationale or legal authority to justify overruling them. Dissent
at 5. The dissent attempts to distinguish Pillatos on the ground this case involves "an
already impaneled jury, the commonly used procedural mechanism of a special
interrogatory, and a valid jury finding (rendered beyond a reasonable doubt)." Dissent at
6. Yet James Metcalf's case, which we decided in Pillatos, presented a nearly identical
factual scenario, the only difference being that Metcalf's trial judge denied the State's
request for a special interrogatory while Davis's trial judge granted it. Following Pillatos,
Davis's trial court lacked authority to delegate its fact-finding duty to the jury by way of a
special interrogatory. The fact that Davis's jury was allowed to enter a finding while
Metcalf's was not makes no difference.
5 The dissent characterizes our holding as a refusal to allow an exceptional sentence
"because one procedure is problematic." Dissent at 4. The dissent fails to recognize the
"one procedure" at issue is the only statutorily authorized procedure for imposing an


No. 79068-0

to make the requisite factual findings in support of an exceptional sentence);

Womac, 160 Wn.2d at 663 (same).

The State argues, however, that even if the trial court erred in submitting

the special interrogatory to the jury, the error is harmless in view of the

legislature's enactment of Engrossed House Bill 2070, effective April 27, 2007

(2007 amendment). Laws of 2007, ch. 205. That statute allows superior courts, in

cases where an exceptional sentence was imposed and where a new sentencing

hearing is required, to impanel a jury to consider any alleged aggravating

circumstances listed in RCW 9.94A.535(3) that were relied upon by the superior

court in imposing the previous sentence. Anticipating the State's argument, Davis

challenges the constitutionality of the 2007 amendment.

The applicability and constitutionality of the 2007 amendment is not

properly before this court. See Pillatos, 159 Wn.2d at 478 (declining to decide

whether the State must charge aggravating factors in the information as unripe for

review). The statute has not been applied to Davis. Considering Davis has

already served the exceptional sentence, it appears doubtful the State will invoke

the new sentencing procedures on remand. If it does, Davis may challenge the

legislation at that time. The trial court should have the first opportunity to pass on

its applicability and constitutionality.


exceptional sentence based on the victim's particular vulnerability.


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Consistent with Hughes, Pillatos, Womac, and Hall, we hold trial courts

lacked authority to submit special interrogatories to juries at trial in deviation from

legislatively prescribed exceptional sentence procedures, during the period

between the Supreme Court's issuance of Blakely and the effective date of the

2005 amendment. We further hold the jury's response to the special interrogatory

is void. We vacate Davis's exceptional sentence and remand for resentencing,

while expressing no opinion on the applicability or constitutionality of the Laws of

2007, chapter 205.

Justice Barbara A. Madsen

Chief Justice Gerry L. Alexander Justice Susan Owens

Justice Charles W. Johnson Justice Mary E. Fairhurst

Bobbe J. Bridge, Justice Pro Tem.

Justice Richard B. Sanders