Opinion Information Sheet

			

  IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,

                Respondent,                                    No. 84554-9

        v.                                                       En Banc

 JAMES L. GRIFFIN,                                        Filed January 5, 2012

                Petitioner.

       J.M. JOHNSON, J. --  The question in this case is whether a fact-

finding hearing of rapid recidivism under RCW 9.94A.537 is a "sentencing" 

hearing  exempt from the  Washington State Rules of Evidence under ER 

1101(c)(3).  We hold that RCW 9.94A.537 sets out a special category of 

sentencing where the rules of evidence do apply.

       At a bench trial, after waiver of a jury, the  Grays Harbor County 

Superior Court found the petitioner, James L.  Griffin, guilty of residential 

burglary.  At sentencing, the judge imposed an exceptional sentence above  

State v. Griffin, No. 84554-9

the standard range, finding the existence of the aggravating circumstance 

codified at RCW 9.94A.535(3)(t).  In making its determination that the 

aggravating circumstance existed, the court relied on inadmissible hearsay

from the trial.

       Griffin appealed his exceptional sentence.  The Court of Appeals 

agreed with Griffin that the trial court relied on inadmissible hearsay; 

however, it affirmed his exceptional sentence.  It determined that, pursuant to 

ER 1101, the rules of evidence do not apply to sentencing and thus, the trial 

court did not err in relying on the inadmissible hearsay.

       We reverse the Court of Appeals, vacate Griffin's exceptional 

sentence, and remand for resentencing.  On remand the trial court may 

receive evidence to justify imposition of the exceptional sentence, and the 

rules of evidence apply to Griffin's resentencing.  Because proper 

interpretation of ER 1101 results in reversal of Griffin's exceptional sentence, 

we do not address his constitutional claims.

                            Facts and Procedural History

       The State charged Griffin with residential burglary.  Griffin waived his 

right to a trial by jury.  At the bench trial, the court found Griffin guilty and 

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State v. Griffin, No. 84554-9

determined that he committed the charged offense on October 2, 2008.  

Additionally, the court found that an aggravating circumstance existed that 

justified a sentence above the standard range.

       The aggravating circumstance identified by the court, codified at RCW 

9.94A.535(3)(t), was that Griffin committed the residential burglary shortly 

after his release from incarceration.  The court based this conclusion on its 

finding that Griffin committed his current offense shortly after his release 

from the Grays Harbor County jail on August, 19, 2008.  Based on this 

aggravating circumstance, the court imposed an exceptional sentence of 30 

months of confinement.  The standard range sentence was 15 to 20 months of 

confinement.

       The issue in this case involves the State's proof of the aggravating 

circumstance.  As proof of Griffin's release on August 19, 2008, the State

offered  only  the testimony of Sergeant Travis Davis of the Grays Harbor 

Sheriff's Department.  Sergeant Davis testified that he worked in corrections 

and that his regular duties involved checking and maintaining records.  He 

further testified that he looked up Griffin's records prior to the trial and the 

sheriff's office assigned Griffin the unique identifying number "41408" in a 

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State v. Griffin, No. 84554-9

database that he referred to as "Spillman."  Verbatim Report of Proceedings 

(VRP) at 62-63.

       The defense objected when the prosecutor asked Sergeant Davis when 

Griffin was released.  The defense said, "Your honor, I would object as to 

[whether he] is testifying to his memory of when he was there, or is there 

some other form that he is testifying to?"  VRP at 63.  The court overruled the 

objection, stating that the defense could cross-examine the witness on the 

basis of his knowledge.

       Sergeant Davis testified that the county jail released Griffin on 

August 19, 2008 at "approximately 21 hundred hours."  Id.  When asked how 

he knew what Griffin's release date was, Sergeant Davis testified that "[i]t's 

what time he was signed out of the Spillman system by, looks like Officer - -

"; however, before he finished his answer the defense objected stating:  

"Then I continue my objection as what he is testifying to is based on [the] 

Spillman record.  We don't have any sort of authentication or certification of 

what he testifying to is the actual record or - -."  VRP at 63-64.

       The trial judge interrupted and asked the prosecutor, "[D]o you wish to 

lay a foundation?"  Id. at 64.  The prosecutor confirmed that he did wish to 

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State v. Griffin, No. 84554-9

lay a foundation and asked three questions: (1) whether Sergeant Davis 

looked up previous commitments for name number 41408, (2) whether he 

was able to locate a previous commitment for 41408, and (3) whether he 

knew the release date for the prior commitment.  Sergeant Davis answered 

the first two questions affirmatively and answered the third with the same 

date he previously testified to: August 19, 2008.

       The defense chose not to cross examine Sergeant Davis but maintained 

its objection stating, "I still maintain my objection as far as he doesn't have 

personal knowledge of it.  And the foundation hasn't been laid as to the 

record."  Id. at 64.  The court overruled the objection:

       He testified regarding their system, the name number system assigned.  
       That 41408 was assigned to Mr. Griffin, and that he more recently 
       reviewed the records in the database maintained by the sheriff's office, 
       and for that number determined that the most recent release date was 
       August 19, 2008.  So I don't find any of that objectionable.  You may 
       cross examine him if you wish.

Id. at 64-65.  The defense again declined cross-examination.

       Following closing arguments, the trial court made oral findings on the 

record.  The court determined that the State satisfied its burden and proved all 

of the elements of residential burglary beyond a reasonable doubt.  The court 

found Griffin guilty as charged.  The court then asked the prosecutor, "[H]ow 

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State v. Griffin, No. 84554-9

much time did you need to prepare findings and conclusions and to be ready - - 

to proceed to sentencing[?]  I will make a finding regarding the aggravated 

circumstances."  Id. at 74.

       After a brief exchange between the court and the prosecutor regarding 

scheduling, the court stated:

       I am    satisfied beyond a reasonable doubt that the aggravating 
       circumstances  has  [sic]  been proven, that is, namely under RCW 
       [9.94A.535], subsection 3[(t)] that it has been proven that the 
       defendant committed the current offense shortly after being released 
       from incarceration, and I will make that special finding.  Sentencing 
       will be continued to . . . .

Id. at 74.  At sentencing the court imposed an exceptional sentence of 30 

months of confinement.

       Griffin appealed his exceptional sentence arguing that, by only 

presenting inadmissible hearsay, the State presented insufficient evidence to 

support the aggravating circumstance.  In an unpublished opinion, the Court 

of Appeals rejected Griffin's argument and affirmed his conviction and 

sentence.  The Court of Appeals determined that Sergeant Davis' testimony 

was inadmissible hearsay.  State v. Griffin, noted at 153 Wn. App. 1049 

(2009)   (unpublished).   However, because ER 1101 does not require 

application of the hearsay rules at sentencing proceedings, the court 

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State v. Griffin, No. 84554-9

determined that the trial court did not err in relying on the hearsay statements 

to find the aggravating circumstance.

       Griffin petitioned this court for review, alleging that the United States 

Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 

2531, 159 L. Ed. 2d 403 (2004), and our decision in State v. Bartholomew, 

101 Wn.2d 631, 683 P.2d 1079 (1984), required the trial court to base its 

finding of the aggravating circumstance on evidence admissible under the 

rules of evidence.  We granted review.  State v. Griffin, 169 Wn.2d 1021, 

238 P.3d 503 (2010).

                                       Analysis

       We reverse the Court of Appeals, vacate Griffin's exceptional 

sentence, and remand for resentencing.  On remand the trial court may 

receive evidence to justify imposition of the exceptional sentence, and the 

rules of evidence apply to Griffin's resentencing.  We hold that RCW 

9.94A.537 sets out a special category of sentencing, where  the rules of 

evidence  do  apply.     Because proper interpretation of ER 1101 results in 

reversal of Griffin's exceptional sentence, we do                   not address his 

constitutional claims.

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State v. Griffin, No. 84554-9

1.     Standard of Review

Griffin's case involves proper interpretation of the rules of evidence.  

"Interpretation of an evidentiary rule is a question of law, which we review de 

novo."  State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007).  

"Once the rule is correctly interpreted, the trial court's decision to admit or 

exclude evidence is reviewed for an abuse of discretion."  State v. 

DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).  "Failure to enforce the 

requirements of rules can constitute an abuse of discretion."  State v. Neal, 

144 Wn.2d 600, 609, 30 P.3d 1255 (2001).  An abuse of discretion occurs if 

the court's decision is manifestly unreasonable or rests on untenable grounds.  

State v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991 (2006).  A decision rests 

on untenable grounds if it "'rests on facts unsupported in the record or was 

reached by applying the wrong legal standard.'"  Id. at 76 (quoting State v. 

Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).  A decision is manifestly 

unreasonable if it adopts a view that no reasonable person would take.  Id.

To reverse an exceptional sentence,

       the reviewing court must find:  (a) Either that the reasons supplied by 
       the sentencing court are not supported by the record which was before 
       the judge or that those reasons do not justify a sentence outside the 
       standard sentence range for that offense; or (b) that the sentence 
       imposed was clearly excessive or clearly too lenient.

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State v. Griffin, No. 84554-9

RCW 9.94A.585(4).1

RCW 9.94A.585(4)(a) contains both a factual and a legal component.  State 

v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d 143 (2010).  The factual component 

(i.e., whether the record supports the reasons supplied by the sentencing 

court) is reviewed under the sufficiency of the evidence standard.  Id.  Under 

the sufficiency of the evidence standard, "'[t]he record must contain a 

sufficient quantity of evidence to persuade a rational, fair-minded person of 

the truth of the premise in question.'"  Winbun v. Moore, 143 Wn.2d 206, 

213, 18 P.3d 576 (2001) (quoting Canron, Inc. v. Fed. Ins. Co., 82 Wn. App. 

480, 486, 918 P.2d 937 (1996)).  The legal component (i.e., whether the 

reasons justify a sentence outside the standard range) is reviewed de novo.  

Stubbs, 170 Wn.2d at 124.

2.     The Rules of Evidence Applied to Sergeant Davis' Testimony

The only evidence in support of the trial court's finding of a statutory 
aggravating circumstance under RCW 9.94A.535(3)(t)2 was the testimony of 

1 Appellate courts review exceptional sentences outside of the standard sentence range 
pursuant to the standards set forth in RCW 9.94A.585(4).  RCW 9.94A.535.
2 The aggravating circumstance codified at RCW 9.94A.535(3)(t) is commonly known as 
"rapid recidivism."  State v. Williams, 159 Wn. App. 298, 309, 244 P.3d 1018 (2011).

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State v. Griffin, No. 84554-9

Sergeant Davis.  The Court of Appeals determined that Sergeant Davis' 

testimony was inadmissible hearsay.  However, it also determined that the 

trial court did not err in relying on Sergeant Davis' testimony because, 

pursuant to ER 1101, the rules of evidence do not apply at sentencing.3

It is unnecessary to reach the constitutional claims raised by Griffin because 

the Court of Appeals incorrectly applied ER 1101.  Generally, the rules of 

evidence apply to "all actions and proceedings in the courts of the state of 

Washington."  ER 1101(a).  However, other than rules governing privileges, 

the rape shield statute and ER 412, the rules need not be applied at several 

miscellaneous types of proceedings.  ER 1101(c)(3).  One type of proceeding 

identified under this exception is a sentencing proceeding.  Id.

       A fact-finding hearing under RCW 9.94A.537, however, is not the sort 

of "sentencing" hearing to which the evidence rules do not apply.  Use of the 

term "sentencing" in ER 1101(c)(3) predates RCW 9.94A.537, which was 

3 In his petition for review, Griffin implicitly accepts the Court of Appeals' understanding 
of ER 1101 but argues that the federal and state constitutions require application of the 
rules of evidence to findings in support of statutory aggravating circumstances.  In 
response to Griffin's petition, the State does not challenge the Court of Appeals' 
determination that Sergeant Davis' testimony was inadmissible hearsay.  Rather, the State 
reiterates the Court of Appeals' argument that, pursuant to ER 1101, the rules of evidence 
did not apply to Sergeant Davis' testimony.  Because neither party challenges the Court of 
Appeals' determination that Sergeant Davis' testimony was inadmissible hearsay, we
assume for purposes of our analysis that the evidence was inadmissible and that the 
defense properly preserved its objections for appeal.

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State v. Griffin, No. 84554-9

crafted to respond to the Blakely problem.  The statute created a special 

category of sentencing hearing, which involves jury fact finding (unless a jury 

is waived).  The trier of fact at a section .537 hearing must find the defendant 

"guilty" of committing the aggravator.  We do not read the term "sentencing" 

in ER 1101(c) to encompass this evidentiary hearing under section .537, and 

thus the long-standing exemption in section (c) does not apply.  Instead, 

under ER 1101(a), the evidence rules continue to apply ("[e]xcept as 

otherwise provided in section (c), these rules apply to all actions and 

proceedings in the courts of the state of Washington").  For this reason, it is 

unnecessary to reach Griffin's argument that due process also would require

application of the evidence rules at sentencing hearings.

The only evidence in support of the aggravating circumstance identified by 

the trial court was the testimony of Sergeant Davis.  The Court of Appeals 

held, and the parties do not dispute, that Sergeant Davis' testimony was 

inadmissible under the rules of evidence.  Because the only evidence 

supporting the trial court's finding of an aggravating circumstance was 

inadmissible, there is no evidence in the record supporting the trial court's 

aggravating circumstance finding.             Accordingly, Griffin's exceptional 

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State v. Griffin, No. 84554-9

sentence must be vacated.

                                         Conclusion

       We reverse the Court of Appeals, vacate Griffin's exceptional 

sentence, and remand for resentencing.  On remand the trial court may 

receive evidence to justify imposition of an exceptional sentence, and the 

rules of evidence apply to Griffin's resentencing.  See RCW 9.94A.537(2).  

Because proper interpretation of ER 1101 results in reversal of Griffin's 

exceptional sentence, we do not address his constitutional claims.

AUTHOR:

        Justice James M. Johnson

WE CONCUR:

        Chief Justice Barbara A. Madsen

        Justice Charles W. Johnson

        Justice Tom Chambers                             Justice Debra L. Stephens

        Justice Susan Owens                              Justice Charles K. Wiggins

        Justice Mary E. Fairhurst                        Gerry L. Alexander, Justice Pro Tem.

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