Opinion Information Sheet

			

In the Matter of the Personal Restraint Petition of Scott (Joshua Dean)

                                        No.  82951-9

       C. JOHNSON, J. (dissenting) -- The issue in this case, properly 

framed, is whether a judgment and sentence could ever be valid when a 

judge sentences someone for something the jury did not find.  The answer 

to that question is, and should always be, no.

       The lead opinion concludes correctly that we may consult the verdict 

forms to illuminate whether the defendant's judgment and sentence is valid 

on its face.  The lead opinion then proceeds, however, to incorrectly apply 

the information the verdict forms disclose.  It is, or at least should be, self-

evident that a judge lacks authority to impose a sentence in excess of that 

legally authorized.  Yet that is precisely what the judge in this case did.  And 

the lead opinion, after consulting the verdict forms evidencing this  

In the Matter of the Personal Restraint Petition of Scott (Joshua Dean)

unauthorized act, concludes the trial court did not exceed its authority.  This 

conclusion is vexing.  

       That the judgment and sentence in this case was final before 

Recuenco III is not dispositive of whether the trial court exceeded its 

authority, which it necessarily did when it sentenced the defendant for a 

crime not found by the jury.  State v. Recuenco, 163 Wn.2d 428, 442, 180 

P.3d 1276 (2008) (Recuenco III). Incredibly, the lead opinion concludes the 

defendant in this case is not entitled the "benefit" of our holding in Recuenco 

III.  The lead opinion bases this conclusion on its view that our opinion in 

that case is a static point on a Blakely Sixth Amendment jurisprudential 

timeline.  Because the defendant's judgment and sentence became final 

prior to Recuenco III, the lead opinion reasons, the principles supporting our 

holding in that case do not apply.  Blakely v. Washington, 542 U.S. 296, 124 

S. Ct. 2531, 159 L. Ed. 2d 403 (2004). This view is incorrect.  In Recuenco 

III, we concluded the error occurred when "the trial judge imposed a 

sentence enhancement for something the State did not ask for and the jury 

did not find.  The trial court simply exceeded its authority in imposing a 

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In the Matter of the Personal Restraint Petition of Scott (Joshua Dean)

sentence not authorized by the charges."  Recuenco, 163 Wn.2d at 442.  In 

other words, we recognized that the error occurred after the jury verdict, that 

is, after the rights the Sixth Amendment protects had been upheld.  

Recuenco, 163 Wn.2d at 441.  An error at sentencing, therefore, does not 

implicate the Sixth Amendment exclusively.  I believe it is also a due 

process violation to convict a defendant of one offense and sentence for 

another.  That such a violation existed prior to Recuenco III should not be 

remarkable or, in my opinion, even questionable.  And our recognition of this 

type of violation in Recuenco III did not somehow make it "new."

       "[A] careful review of our cases reveals that we have only found errors 

rendering a judgment invalid under RCW 10.73.090 where a court has in 

fact exceeded its statutory authority in entering the judgment or sentence."  

In re Pers. Restraint of Coats, 173 Wn.2d 123, 135, 267 P.3d 324 (2011).  

The lead opinion's conclusion that a court does not exceed its authority by 

sentencing someone for something the jury did not find borders on 

absurdity.  A judgment and sentence should always be invalid following such 

an act, regardless of when the judgment and sentence became final.

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In the Matter of the Personal Restraint Petition of Scott (Joshua Dean)

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In the Matter of the Personal Restraint Petition of Scott (Joshua Dean)

AUTHOR:
       Justice Charles W. Johnson

WE CONCUR:
       Gerry L. Alexander, Justice Pro Tem.

       Richard B. Sanders, Justice Pro 
       Tem.

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