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Washington Supreme Court Remands for Resentencing Where State Failed to Prove Criminal History

by Douglas Ankney

In an enbanc decision, the Supreme Court of Washington reversed and remanded for resentencing where the State failed to prove a defendant’s criminal history beyond a reasonable doubt.

A jury convicted Brandon Cate of burglary, theft, and malicious mischief in Okanogan County Superior Court. Cate testified that he “remembered” a conviction for second-degree burglary and second-degree theft in 2015; he also “believed” he was convicted of third-degree theft in 2016. He agreed that in 2017 he was convicted of three counts of second-degree burglary and two counts of second-degree theft. The prosecutor provided a sentencing memorandum that summarized Cate’s alleged criminal history. The memorandum listed the foregoing convictions plus additional convictions that included assaulting a law enforcement officer, intimidating a public servant, and felony bail jumping.

The prosecutor did not present to the trial court any judgment and sentence documents proving the existence of the alleged convictions. At sentencing, the trial court listed 10 different prior criminal convictions in Cate’s history and calculated his offender score as the highest category of 9+. Cate made no objection to the court’s summary of his criminal history, nor did he object to the calculated score. The court sentenced Cate to 60 months of imprisonment. On appeal, he argued that the calculated sentencing range was erroneous because the State failed to meet its burden of proving his criminal history at sentencing.

The Court of Appeals disagreed and affirmed his sentence. The Washington Supreme Court granted Cate’s petition for review.

The Court observed that “[i]t is irrelevant that the prosecutor summarized [Cate’s] criminal history since such a summary does not satisfy the State’s burden of proof.” State v. Hunley, 287 P.3d 584 (Wash. 2012).

And Cate’s failure to object to the summary could not be construed as a waiver of the issue because he did not affirmatively acknowledge the criminal history. Id. Cate had only admitted to two convictions and vaguely acknowledged two more. The judgment and sentence, however, listed numerous convictions not admitted to by Cate, including felony bail jumping and intimidating a public servant. While RCW 9.94A.530(2) does state that a defendant’s failure to object at the sentencing hearing amounts to an acknowledgment of his criminal history, the Court had previously held that portion of the statute unconstitutional because it risked shifting the burden to prove criminal history from the State to the defendant. Id.

Accordingly, the Court reversed the judgment of the Court of Appeals and remanded to the superior court for resentencing consistent with the Court’s decision. See: State v. Cate, 2019 Wash. LEXIS 822 (2019). 

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Related legal case

State v. Cate

 

 

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