STATE v. DAVID (2005)

 ¶ 1 This case was remanded to us following our Supreme Court's decision in State v. Hughes.¹  We withdraw the former unpublished section F of State v. David² relating to the exceptional sentence and replace it with this published section C.

C. Exceptional Sentence

¶ 2 David also contends that the trial court erred in imposing an exceptional sentence under RCW 9.94A.535.³ Recently, the Supreme Court in Blakely v. Washington⁴ held unconstitutional an exceptional sentence that is based on facts (other than prior convictions) not found by the jury beyond a reasonable doubt.   Blakely does not  invalidate RCW 9.94A.535 on its face, but it does provide for an as-applied challenge.⁵

¶ 3 None of the six aggravating factors used to lengthen David's sentence was found by the jury, and none was a prior conviction.   The exceptional sentence was improper in light of Blakely and is reversed.

¶ 4 The only remaining question is the appropriate sentencing procedure on remand.   To uphold the exceptional sentence, a jury would need to be empanelled to make the appropriate findings of fact.   In Hughes, our Supreme Court determined that only the Legislature may amend RCW 9.94A.535 to require this procedure.⁶  The Legislature recently did so, but whether the amendment applies retroactively has yet to be decided.

¶ 5 We affirm the judgment and remand for resentencing.

FOOTNOTES

1.   154 Wash.2d 118, 134, 110 P.3d 192 (2005).

2.   118 Wash.App. 61, 74 P.3d 686 (2003).

3.   RCW 9.94A.535 allows the court to “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.”

4.   542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

5.   Hughes, 154 Wash.2d at 134, 110 P.3d 192.

6.   Hughes, 154 Wash.2d at 149, 110 P.3d 192.

PER CURIAM.