Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 66057-8-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            )
CLINTON ROBINSON,                           )       UNPUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED: March 19, 2012

       Spearman, J.  --  A jury convicted Clinton Robinson of second degree trespass, 

residential burglary, and making a false statement to an officer. The jury found in a 

special verdict that he committed the burglary "shortly after" being released from 

incarceration on a prior burglary sentence, and the trial court imposed an exceptional

sentence on that basis.  Robinson challenges the exceptional sentence on grounds that 

the rapid recidivism enhancement statute is unconstitutionally vague.  We reject this 

argument because the mere fact that a law requires subjective evaluation to determine 

whether it has been violated does not mean the law is unconstitutional.   

       We must nevertheless reverse the exceptional sentence because the jury 

instruction for the special verdict was faulty.  Under State v. Ryan, 160 Wn. App. 944,  

No. 66057-8-I/2

252 P.3d 895, rev. granted, 172 Wn.2d 1004, 258 P.3d 676 (2011) and State v. 

Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), it is manifest constitutional error to 

instruct a jury that it must be unanimous in order to find the State failed to prove an 

aggravating factor.  As was the case in Ryan, the jury was so instructed here.  We 

vacate the exceptional sentence and remand for further proceedings.   

                                            FACTS
       A jury convicted Clinton Robinson of second degree trespass, residential 

burglary, and making a false statement to an officer. The jury was then charged with 

answering the special verdict of whether Robinson committed the burglary "shortly after 

being released from incarceration."  The evidence showed that Robinson was released 

from confinement on June 14, 2009 and he committed the crime of residential burglary 

on August 23, 2009.  The instructions for the special verdict informed the jury that it 

must unanimously agree before it could return the special verdict:

       You must fill in the blank provided in the special verdict form the 
       word "yes" or "no," according to the decision you reach.

       Because this is a criminal case, each of you must agree for you to 
       return a verdict. When all of you have so agreed, fill in the special 
       verdict form[s] to express your decision. . . .

The jury found Robinson had committed the burglary shortly after being released from 

incarceration. On the basis of the special verdict finding, the trial court imposed an 

exceptional sentence. Robinson appeals the exceptional sentence.

                                        DISCUSSION

       Robinson first argues that RCW 9.94A.535(3)(t), which permits an aggravating 

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No. 66057-8-I/3

factor of commission of an offense "shortly after" release from confinement, is 

unconstitutionally vague and therefore violates the Due Process clause of the 

Fourteenth Amendment. We disagree.

       We review de novo a challenge to the constitutionality of a statute. State v. 

Shultz, 138 Wn.2d 638, 643, 980 P.2d 1265 (1999). Where the statute does not 

impinge on First Amendment rights, we evaluate a vagueness challenge "by examining 

the statute as applied under the particular facts of the case." State v. Coria, 120 Wn.2d 

156, 163, 839 P.2d 890 (1992). Statutes are presumed constitutional. City of Spokane 

v. Vaux, 83 Wn.2d 126, 129, 516 P.2d 209 (1973). When a statute does not define 

terms alleged to be unconstitutionally vague, we "may 'look to existing law, ordinary 

usage, and the general purpose of the statute' to determine whether 'the statute meets 

constitutional requirements of clarity.'" State v. Hunt, 75 Wn. App. 795, 801, 880 P.2d 

96 (1994) (quoting State v. Russell, 69 Wn. App. 237, 245, 848 P.2d 743 (1993)).

       A statute violates the due process clause if (1) it "does not define the criminal 

offense with sufficient definiteness that ordinary people can understand what conduct is 

proscribed;" or (2) it "does not provide ascertainable standards of guilt to protect 

against arbitrary enforcement." State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 

(2001) (internal quotation marks omitted) (quoting City of Bellevue v. Lorang, 140 

Wn.2d 19, 30, 992 P.2d 496 (2000)); see also State v. Zigan, 2012 WL 504606, at *3,

(No. 29464-1, filed Feb. 16, 2012).

       "The requirement that penal statutes define a criminal offense with sufficient 

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No. 66057-8-I/4

definiteness, i.e., provide fair warning, protects individuals from being held criminally 

accountable for conduct which a person of ordinary intelligence could not reasonably 

understand to be prohibited." City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 

P.2d 693 (1990) (citing Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 46 L.Ed.2d 185

(1975)). "Accordingly, the test for whether the penal statute is sufficiently definite is 

common intelligence." Douglass, 115 Wn.2d at 179 (citing State v. Motherwell, 114 

Wn.2d 353, 369, 788 P.2d 1066 (1990). 

       "This test, however, does not demand impossible standards of specificity or 

absolute agreement." Douglass, 115 Wn.2d at 179 (citing Kolender v. Lawson, 461 

U.S. 352, 361, 103 S.Ct. 1855 (1983)).  Thus, "the due process requirement that a 

penal statute define a criminal offense with sufficient definiteness does not extend to 

invalidating statutes which a reviewing court believes could have been drafted with 

greater precision." Id. (citing Rose, 423 U.S. at 49). "In other words, 'vagueness in the 

constitutional sense is not mere uncertainty.'" Id. (quoting State v. Smith, 111 Wn.2d 1, 

10, 759 P.2d 372 (1988). "Vagueness in the constitutional sense means that persons of 

ordinary intelligence are obliged to guess as to what conduct the ordinance 

proscribes." Id.

       Under RCW 9.94A.535(3)(t), a sentencing court may impose an aggravated 

exceptional sentence after a finding that "[t]he defendant committed the current offense 

shortly after being released from incarceration." The term, "shortly after" is not defined. 

Division Three of this court recently held this statute is not unconstitutionally vague in 

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No. 66057-8-I/5

State v. Zigan, 2012 WL 504606, (No. 29464-1, filed Feb. 16, 2012).  In Zigan, the 

court reviewed multiple appellate court decisions on this issue, including State v. 

Butler, 75 Wn. App. 47, 876 P.2d 481 (1994) (affirming rapid recidivism exceptional 

sentence after defendant committed robbery and attempted rape on same day he was 

released from prison); State v. Saltz, 137 Wn. App. 576, 154 P.3d 282 (2007) (affirming 

rapid recidivism exceptional sentence after defendant committed malicious mischief 30

days after release); and State v. Combs, 156 Wn. App. 502, 232 P.3d 1179 (2010)

(eluding offense committed six months after release from prison is not committed 

"'shortly after being released.'")  Combs, 156 Wn. App. at 506.1

       The Zigan court concluded the fact that the rapid recidivism statute requires

some subjective evaluation does not make it unconstitutionally vague:

       Based on the above cases, RCW 9.94A.535(3)(t) requires some 
       subjective evaluation. But that a law requires subjective evaluation 
       to determine whether the enactment has been violated does not 
       mean the law is unconstitutional. City of Spokane v. Douglass, 115 
       Wn.2d 171, 181, 795 P.2d 693 (1990). As applied here, RCW 
       9.94A.535(3)(t) is not vague. Mr. Zigan committed the offense just 
       over two months after his incarceration. No reasonable person 
       could believe that the circumstances presented here constitute 
       anything other than "[t]he defendant committed the current offense 
       shortly after being released from incarceration." RCW 
       9.94A.535(3)(t). Thus, the term is not unconstitutionally vague as 
       applied to the facts.

Zigan, 2012 WL 504606, at *4.  Here, as in Zigan, Robinson committed the burglary 

just over two months after being released from a prior burglary incarceration. The facts 

in these two cases are markedly similar, and we adhere to Zigan.

       1 Although we reversed the exceptional sentence in Combs, we also held "[w]e do not set an 
outer time limit on what constitutes a short period of time. That period will vary with the circumstances of 
the crime involved[.]" Combs, 156 Wn. App. at 506.

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No. 66057-8-I/6

       Robinson next argues that his exceptional sentence must be reversed because 

the jury instruction for the aggravating factor of rapid recidivism was faulty under 

Bashaw and Ryan.  We agree and vacate the exceptional sentence on that ground.

       The trial court in this case instructed the jury that, given Robinson was previously

found guilty of residential burglary, it was to determine whether Robinson committed the 

crime "shortly after being released from incarceration." The instructions for this special 

verdict informed the jury that it must unanimously agree before it could return the special

verdict:

       You must fill in the blank provided in the special verdict form the 
       word "yes" or "no," according to the decision you reach.
       Because this is a criminal case, each of you must agree for you to 
       return a verdict. When all of you have so agreed, fill in the special 
       verdict form[s] to express your decision. . . .

       But "'special verdicts do not need to be unanimous in order to be final.'" State v. 

Campbell, 163 Wn. App. 394, 402, 260 P.3d 235 (2011) (quoting State v. Goldberg, 149 

Wn.2d 888, 895, 72 P.3d 1083 (2003); see also Bashaw, 169 Wn.2d at 146. "In 

Goldberg, the court concluded that the trial court erred by treating a jury's 

nonunanimous decision on a special verdict as an indication of a deadlocked jury rather 

than as a final answer of 'no.'" Campbell, 163 Wn. App. at 402-03 (citing Goldberg, 149 

Wn.2d at 893). As the court in Campbell pointed out, "[o]ur Supreme Court has since 

made clear that a nonunanimous jury determination on a special verdict operates as an 

acquittal as to the allegation at issue." Id. at 403 (citing Bashaw, 169 Wn.2d at 146). 

       Likewise, in State v. Ryan, we held that language instructing the jury it must be 

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No. 66057-8-I/7

unanimous to answer "no" on a special verdict amounted to constitutional error.  In that 

case, the jury convicted Ryan of second-degree assault and felony harassment, and 

found Ryan committed the crimes with the aggravating circumstances of a pattern of 

abuse and domestic violence.  Ryan, 160 Wn. App. at 947.  We held the instruction 

relieved the State of its burden to prove its allegations beyond a reasonable doubt:

       The State's burden is to prove to the jury beyond a reasonable 
       doubt that its allegations are established.  If the jury cannot 
       unanimously agree that the State has done so, the State has 
       necessarily failed in its burden.  To require the jury to be unanimous 
       about the negative -- to be unanimous that the State has not met its 
       burden -- is to leave the jury without a way to express a reasonable 
       doubt on the part of some jurors.

Id.  

       The State argues Bashaw does not apply here, because the rapid recidivism 

enhancement statute, RCW 9.94A.535(3)(t), "expressly requires jury unanimity for a 

finding of 'no.'" According to the State, this is unlike the school bus stop sentencing 

enhancement at issue in Bashaw, RCW 69.50.435, which is silent as to unanimity. Id. 

But as the State concedes, we previously addressed and rejected this argument in 

Ryan. The State also contends any error was not of constitutional magnitude, and as 

such, cannot be raised for the first time on appeal.  We disagree.  As we held in Ryan, 

our Supreme Court's decision in Bashaw, "compels the conclusion the error is both 

manifest and constitutional" and can be raised for the first time on appeal.  Ryan, 160 

Wn. App. at 948.  We acknowledge that Division Three of this court has reached the 

opposite conclusion on this issue.  See State v. Nunez, 160 Wn. App. 150, 248 P.3d 

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No. 66057-8-I/8

103, rev. granted, 172 Wn.2d 1004, 258 P.3d 676 (2011).  But we disagree with Nunez, 

adhere to Ryan, and vacate the exceptional sentence.2

       Remanded for further proceedings consistent with this opinion.

WE CONCUR:

       2 On remand, the trial court may impanel a jury to consider the aggravating factor with proper 
instructions.  State v. Reyes-Brooks, 164 Wn. App. 193, 267 P.3d 465, 469 (2011).

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