BILL REQ. #:  S-0428.3 

Read first time 01/26/2005.   Referred to Committee on Judiciary.

     AN ACT Relating to advisory sentencing guidelines; amending RCW 9.94A.030, 9.94A.480, 9.94A.530, and 9.94A.535; reenacting and amending RCW 9.94A.505; adding new sections to chapter 9.94A RCW; creating a new section; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   It is the intent of the legislature to restore the ability to impose an aggravated sentence lost by the superior court as a result of the decision of the United States supreme court in Blakely v. State of Washington, 542 U.S. ... (2004). The legislature finds that as the seriousness level of the crime and the criminal history of the offender increase, the need for an individualized and informed assessment of the circumstances of the crime, the offender, and the victim, by the judiciary, is necessary for justice to be obtained. The legislature further finds that the exercise of the judiciary's sentencing discretion over a broader range based upon the assessment of these circumstances is consistent with the policies supporting Washington's sentencing reform act.

NEW SECTION.  Sec. 2   A new section is added to chapter 9.94A RCW to read as follows:
     (1) For offenders convicted of an aggravated offense or for aggravated offenders, the standard sentencing range shall be advisory only. Notwithstanding any other provision of law, the maximum sentence that a court may impose for an aggravated offense or upon an aggravated offender is the maximum sentence for the current offense under chapter 9A.20 RCW, unless it is imposed on any offender sentenced under RCW 9.94A.712.
     (2) In making its determination of the sentence length to be imposed, the court shall consider the risk assessment prepared by the department of corrections, the presentence report and other materials provided by the offender, and any information provided by the victim or victims of the crime.
     (3) A sentence imposed under this section shall be a determinate sentence unless it is imposed on an offender sentenced under RCW 9.94A.712. The sentence may be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6).

Sec. 3   RCW 9.94A.030 and 2003 c 53 s 55 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Aggravated offender" means an offender who has been convicted, in this state or any other state, of three or more felonies prior to the current conviction and who is not a persistent offender. At least one of the prior convictions or the current conviction must be for a sex offense or violent offense as defined by Washington law.
     (2) "Aggravated offense" means an offense that is ranked at seriousness level VII or higher in RCW 9.94A.515.
     (3) "Board" means the indeterminate sentence review board created under chapter 9.95 RCW.
     (((2))) (4) "Collect," or any derivative thereof, "collect and remit," or "collect and deliver," when used with reference to the department, means that the department, either directly or through a collection agreement authorized by RCW 9.94A.760, is responsible for monitoring and enforcing the offender's sentence with regard to the legal financial obligation, receiving payment thereof from the offender, and, consistent with current law, delivering daily the entire payment to the superior court clerk without depositing it in a departmental account.
     (((3))) (5) "Commission" means the sentencing guidelines commission.
     (((4))) (6) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions.
     (((5))) (7) "Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time or imposed pursuant to RCW ((9.94A.505(2)(b),)) 9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the community subject to controls placed on the offender's movement and activities by the department. For offenders placed on community custody for crimes committed on or after July 1, 2000, the department shall assess the offender's risk of reoffense and may establish and modify conditions of community custody, in addition to those imposed by the court, based upon the risk to community safety.
     (((6))) (8) "Community custody range" means the minimum and maximum period of community custody included as part of a sentence under RCW 9.94A.715, as established by the commission or the legislature under RCW 9.94A.850, for crimes committed on or after July 1, 2000.
     (((7))) (9) "Community placement" means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.
     (((8))) (10) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender.
     (((9))) (11) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524. Where the court finds that any offender has a chemical dependency that has contributed to his or her offense, the conditions of supervision may, subject to available resources, include treatment. For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states.
     (((10))) (12) "Confinement" means total or partial confinement.
     (((11))) (13) "Conviction" means an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.
     (((12))) (14) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct. However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department.
     (((13))) (15) "Criminal history" means the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.
     (a) The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration.
     (b) A conviction may be removed from a defendant's criminal history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor's pardon.
     (c) The determination of a defendant's criminal history is distinct from the determination of an offender score. A prior conviction that was not included in an offender score calculated pursuant to a former version of the sentencing reform act remains part of the defendant's criminal history.
     (((14))) (16) "Day fine" means a fine imposed by the sentencing court that equals the difference between the offender's net daily income and the reasonable obligations that the offender has for the support of the offender and any dependents.
     (((15))) (17) "Day reporting" means a program of enhanced supervision designed to monitor the offender's daily activities and compliance with sentence conditions, and in which the offender is required to report daily to a specific location designated by the department or the sentencing court.
     (((16))) (18) "Department" means the department of corrections.
     (((17))) (19) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community restitution work, or dollars or terms of a legal financial obligation. The fact that an offender through earned release can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.
     (((18))) (20) "Disposable earnings" means that part of the earnings of an offender remaining after the deduction from those earnings of any amount required by law to be withheld. For the purposes of this definition, "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy a court-ordered legal financial obligation, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type, but does not include payments made under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW.
     (((19))) (21) "Drug offender sentencing alternative" is a sentencing option available to persons convicted of a felony offense other than a violent offense or a sex offense and who are eligible for the option under RCW 9.94A.660.
     (((20))) (22) "Drug offense" means:
     (a) Any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.4013) or forged prescription for a controlled substance (RCW 69.50.403);
     (b) Any offense defined as a felony under federal law that relates to the possession, manufacture, distribution, or transportation of a controlled substance; or
     (c) Any out-of-state conviction for an offense that under the laws of this state would be a felony classified as a drug offense under (a) of this subsection.
     (((21))) (23) "Earned release" means earned release from confinement as provided in RCW 9.94A.728.
     (((22))) (24) "Escape" means:
     (a) Sexually violent predator escape (RCW 9A.76.115), escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful failure to return from work release (RCW 72.65.070), or willful failure to be available for supervision by the department while in community custody (RCW 72.09.310); or
     (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as an escape under (a) of this subsection.
     (((23))) (25) "Felony traffic offense" means:
     (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW 46.52.020(4)); or
     (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a felony traffic offense under (a) of this subsection.
     (((24))) (26) "Fine" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specific period of time.
     (((25))) (27) "First-time offender" means any person who has no prior convictions for a felony and is eligible for the first-time offender waiver under RCW 9.94A.650.
     (((26))) (28) "Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance.
     (((27))) (29) "Legal financial obligation" means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction. Upon conviction for vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial obligations may also include payment to a public agency of the expense of an emergency response to the incident resulting in the conviction, subject to RCW 38.52.430.
     (((28))) (30) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies:
     (a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;
     (b) Assault in the second degree;
     (c) Assault of a child in the second degree;
     (d) Child molestation in the second degree;
     (e) Controlled substance homicide;
     (f) Extortion in the first degree;
     (g) Incest when committed against a child under age fourteen;
     (h) Indecent liberties;
     (i) Kidnapping in the second degree;
     (j) Leading organized crime;
     (k) Manslaughter in the first degree;
     (l) Manslaughter in the second degree;
     (m) Promoting prostitution in the first degree;
     (n) Rape in the third degree;
     (o) Robbery in the second degree;
     (p) Sexual exploitation;
     (q) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner;
     (r) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;
     (s) Any other class B felony offense with a finding of sexual motivation;
     (t) Any other felony with a deadly weapon verdict under RCW 9.94A.602;
     (u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection;
     (v)(i) A prior conviction for indecent liberties under RCW 9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988;
     (ii) A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988, if: (A) The crime was committed against a child under the age of fourteen; or (B) the relationship between the victim and perpetrator is included in the definition of indecent liberties under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993, through July 27, 1997.
     (((29))) (31) "Nonviolent offense" means an offense which is not a violent offense.
     (((30))) (32) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case is under superior court jurisdiction under RCW 13.04.030 or has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. Throughout this chapter, the terms "offender" and "defendant" are used interchangeably.
     (((31))) (33) "Partial confinement" means confinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of government, or, if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community. Partial confinement includes work release, home detention, work crew, and a combination of work crew and home detention.
     (((32))) (34) "Persistent offender" is an offender who:
     (a)(i) Has been convicted in this state of any felony considered a most serious offense; and
     (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted; or
     (b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree; or (C) an attempt to commit any crime listed in this subsection (((32))) (34)(b)(i); and
     (ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection or any federal or out-of-state offense or offense under prior Washington law that is comparable to the offenses listed in (b)(i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under (b)(i) of this subsection only when the offender was sixteen years of age or older when the offender committed the offense. A conviction for rape of a child in the second degree constitutes a conviction under (b)(i) of this subsection only when the offender was eighteen years of age or older when the offender committed the offense.
     (((33))) (35) "Postrelease supervision" is that portion of an offender's community placement that is not community custody.
     (((34))) (36) "Restitution" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specified period of time as payment of damages. The sum may include both public and private costs.
     (((35))) (37) "Risk assessment" means the application of an objective instrument supported by research and adopted by the department for the purpose of assessing an offender's risk of reoffense, taking into consideration the nature of the harm done by the offender, place and circumstances of the offender related to risk, the offender's relationship to any victim, and any information provided to the department by victims. The results of a risk assessment shall not be based on unconfirmed or unconfirmable allegations.
     (((36))) (38) "Serious traffic offense" means:
     (a) Driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502), actual physical control while under the influence of intoxicating liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5)); or
     (b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection.
     (((37))) (39) "Serious violent offense" is a subcategory of violent offense and means:
     (a)(i) Murder in the first degree;
     (ii) Homicide by abuse;
     (iii) Murder in the second degree;
     (iv) Manslaughter in the first degree;
     (v) Assault in the first degree;
     (vi) Kidnapping in the first degree;
     (vii) Rape in the first degree;
     (viii) Assault of a child in the first degree; or
     (ix) An attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or
     (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious violent offense under (a) of this subsection.
     (((38))) (40) "Sex offense" means:
     (a)(i) A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(11);
     (ii) A violation of RCW 9A.64.020;
     (iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.070 or 9.68A.080; or
     (iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;
     (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection;
     (c) A felony with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135; or
     (d) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.
     (((39))) (41) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.
     (((40))) (42) "Standard sentence range" means the sentencing court's discretionary range in imposing a nonappealable sentence.
     (((41))) (43) "Statutory maximum sentence" means the maximum length of time for which an offender may be confined as punishment for a crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other statute defining the maximum penalty for a crime.
     (((42))) (44) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060.
     (((43))) (45) "Transition training" means written and verbal instructions and assistance provided by the department to the offender during the two weeks prior to the offender's successful completion of the work ethic camp program. The transition training shall include instructions in the offender's requirements and obligations during the offender's period of community custody.
     (((44))) (46) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged.
     (((45))) (47) "Violent offense" means:
     (a) Any of the following felonies:
     (i) Any felony defined under any law as a class A felony or an attempt to commit a class A felony;
     (ii) Criminal solicitation of or criminal conspiracy to commit a class A felony;
     (iii) Manslaughter in the first degree;
     (iv) Manslaughter in the second degree;
     (v) Indecent liberties if committed by forcible compulsion;
     (vi) Kidnapping in the second degree;
     (vii) Arson in the second degree;
     (viii) Assault in the second degree;
     (ix) Assault of a child in the second degree;
     (x) Extortion in the first degree;
     (xi) Robbery in the second degree;
     (xii) Drive-by shooting;
     (xiii) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; and
     (xiv) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;
     (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in (a) of this subsection; and
     (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under (a) or (b) of this subsection.
     (((46))) (48) "Work crew" means a program of partial confinement consisting of civic improvement tasks for the benefit of the community that complies with RCW 9.94A.725.
     (((47))) (49) "Work ethic camp" means an alternative incarceration program as provided in RCW 9.94A.690 designed to reduce recidivism and lower the cost of corrections by requiring offenders to complete a comprehensive array of real-world job and vocational experiences, character-building work ethics training, life management skills development, substance abuse rehabilitation, counseling, literacy training, and basic adult education.
     (((48))) (50) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school.

Sec. 4   RCW 9.94A.480 and 2002 c 290 s 16 are each amended to read as follows:
     (1) A current, newly created or reworked judgment and sentence document for each felony sentencing shall record any and all recommended sentencing agreements or plea agreements and the sentences for any and all felony crimes kept as public records under RCW 9.94A.475 shall contain the clearly printed name and legal signature of the sentencing judge. The judgment and sentence document as defined in this section shall also provide additional space for the sentencing judge's reasons, if any, for going either above or below the presumptive or advisory sentence range for any and all felony crimes covered as public records under RCW 9.94A.475. Both the sentencing judge and the prosecuting attorney's office shall each retain or receive a completed copy of each sentencing document as defined in this section for their own records.
     (2) The sentencing guidelines commission shall be sent a completed copy of the judgment and sentence document upon conviction for each felony sentencing under subsection (1) of this section and shall compile a yearly and cumulative judicial record of each sentencing judge in regards to his or her sentencing practices for any and all felony crimes involving:
     (a) Any violent offense as defined in this chapter;
     (b) Any most serious offense as defined in this chapter;
     (c) Any felony with any deadly weapon special verdict under RCW 9.94A.602;
     (d) Any felony with any deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both; and/or
     (e) The felony crimes of possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first or second degree, and/or use of a machine gun in a felony.
     (3) The sentencing guidelines commission shall compare each individual judge's sentencing practices to the standard ((or)), presumptive, or advisory sentence range for any and all felony crimes listed in subsection (2) of this section for the appropriate offense level as defined in RCW 9.94A.515 or 9.94A.518, offender score as defined in RCW 9.94A.525, and any applicable deadly weapon enhancements as defined in RCW 9.94A.533 (3) or (4), or both. These comparative records shall be retained and made available to the public for review in a current, newly created or reworked official published document by the sentencing guidelines commission.
     (4) Any and all felony sentences which are either above or below the standard ((or)), presumptive, or advisory sentence range in subsection (3) of this section shall also mark whether the prosecuting attorney in the case also recommended a similar sentence, if any, which was either above or below the standard, presumptive, or advisory sentence range and shall also indicate if the sentence was in conjunction with an approved alternative sentencing option including a first-time offender waiver, sex offender sentencing alternative, or other prescribed sentencing option.
     (5) If any completed judgment and sentence document as defined in subsection (1) of this section is not sent to the sentencing guidelines commission as required in subsection (2) of this section, the sentencing guidelines commission shall have the authority and shall undertake reasonable and necessary steps to assure that all past, current, and future sentencing documents as defined in subsection (1) of this section are received by the sentencing guidelines commission.

Sec. 5   RCW 9.94A.505 and 2002 c 290 s 17, 2002 c 289 s 6, and 2002 c 175 s 6 are each reenacted and amended to read as follows:
     (1) When a person is convicted of a felony, the court shall impose punishment as provided in this chapter.
     (2)(a) The court shall impose a sentence as provided in the following sections and as applicable in the case:
     (i) Unless another term of confinement applies, the court shall impose a sentence within the standard sentence range established in RCW 9.94A.510 or 9.94A.517;
     (ii) RCW 9.94A.700 and 9.94A.705, relating to community placement;
     (iii) RCW 9.94A.710 and 9.94A.715, relating to community custody;
     (iv) RCW 9.94A.545, relating to community custody for offenders whose term of confinement is one year or less;
     (v) RCW 9.94A.570, relating to persistent offenders;
     (vi) RCW 9.94A.540, relating to mandatory minimum terms;
     (vii) RCW 9.94A.650, relating to the first-time offender waiver;
     (viii) RCW 9.94A.660, relating to the drug offender sentencing alternative;
     (ix) RCW 9.94A.670, relating to the special sex offender sentencing alternative;
     (x) RCW 9.94A.712, relating to certain sex offenses;
     (xi) RCW 9.94A.535, relating to exceptional sentences;
     (xii) RCW 9.94A.589, relating to consecutive and concurrent sentences;
     (xiii) Section 2 of this act relating to aggravated offenses and aggravated offenders.
     (b) If a standard sentence range has not been established for the offender's crime, the court shall impose a determinate sentence which may include not more than one year of confinement; community restitution work; until July 1, 2000, a term of community supervision not to exceed one year and on and after July 1, 2000, a term of community custody not to exceed one year, subject to conditions and sanctions as authorized in RCW 9.94A.710 (2) and (3); and/or other legal financial obligations. The court may impose a sentence which provides more than one year of confinement if the court finds reasons justifying an exceptional sentence as provided in RCW 9.94A.535.
     (3) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days. A sentence requiring more than thirty days of confinement shall be served on consecutive days. Local jail administrators may schedule court-ordered intermittent sentences as space permits.
     (4) If a sentence imposed includes payment of a legal financial obligation, it shall be imposed as provided in RCW 9.94A.750, 9.94A.753, 9.94A.760, and 43.43.7541.
     (5) Except as provided under RCW 9.94A.750(4) and 9.94A.753(4), a court may not impose a sentence providing for a term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.
     (6) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.
     (7) The court shall order restitution as provided in RCW 9.94A.750 and 9.94A.753.
     (8) As a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter.
     (9) The court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense. An order requiring mental status evaluation or treatment must be based on a presentence report and, if applicable, mental status evaluations that have been filed with the court to determine the offender's competency or eligibility for a defense of insanity. The court may order additional evaluations at a later date if deemed appropriate.
     (10) In any sentence of partial confinement, the court may require the offender to serve the partial confinement in work release, in a program of home detention, on work crew, or in a combined program of work crew and home detention.
     (11) In sentencing an offender convicted of a crime of domestic violence, as defined in RCW 10.99.020, if the offender has a minor child, or if the victim of the offense for which the offender was convicted has a minor child, the court may, as part of any term of community supervision, community placement, or community custody, order the offender to participate in a domestic violence perpetrator program approved under RCW 26.50.150.

Sec. 6   RCW 9.94A.530 and 2002 c 290 s 18 are each amended to read as follows:
     (1) The intersection of the column defined by the offender score and the row defined by the offense seriousness score determines the standard sentence range (see RCW 9.94A.510, (Table 1) and RCW 9.94A.517, (Table 3)). The additional time for deadly weapon findings or for ((those offenses enumerated)) other adjustments as specified in RCW 9.94A.533(((4) that were committed in a state correctional facility or county jail)) shall be added to the entire standard sentence range. The court may impose any sentence within the range that it deems appropriate. All standard sentence ranges are expressed in terms of total confinement.
     (2) In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to section 8 of this act. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence, except as otherwise specified in section 8 of this act.
     (3) In determining any sentence above the standard sentence range, the court shall follow the procedures set forth in section 8 of this act. Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the standard sentence range except upon stipulation or when specifically provided for in RCW 9.94A.535(2) (d), (e), (g), and (h).

Sec. 7   RCW 9.94A.535 and 2003 c 267 s 4 are each amended to read as follows:
     The court may 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. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of section 8 of this act.
     Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard sentence range shall be a determinate sentence ((unless it is imposed on an offender sentenced under RCW 9.94A.712. An exceptional sentence imposed on an offender sentenced under RCW 9.94A.712 shall be to a minimum term set by the court and a maximum term equal to the statutory maximum sentence for the offense of conviction under chapter 9A.20 RCW)).
     If the sentencing court finds that an exceptional sentence outside the standard sentence range should be imposed, the sentence is subject to review only as provided for in RCW 9.94A.585(4).
     A departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6).
     ((The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.))
     (1) Mitigating Circumstances - Court to Consider
The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.
     (a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.
     (b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.
     (c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.
     (d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
     (e) The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded.
     (f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.
     (g) The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
     (h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
     (2) Aggravating Circumstances - Considered and Imposed by the Court
     The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
     (a) The defendant and the state both stipulate that justice is best served by the imposition of an exceptional sentence outside the standard range, and the court finds the exceptional sentence to be consistent with and in furtherance of the interests of justice and the purposes of the sentencing reform act.
     (b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
     (c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
     (d) The failure to consider the defendant's prior criminal history which was omitted from the offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.
     (3) Aggravating Circumstances - Considered By A Jury - Imposed by the Court
     Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. Such facts should be determined by procedures specified in section 8 of this act.
     (a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.
     (b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance ((due to extreme youth, advanced age, disability, or ill health)).
     (c) The current offense was a violent offense, and the defendant knew that the victim of the current offense was pregnant.
     (d) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:
     (i) The current offense involved multiple victims or multiple incidents per victim;
     (ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;
     (iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; or
     (iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
     (e) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:
     (i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so;
     (ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use;
     (iii) The current offense involved the manufacture of controlled substances for use by other parties;
     (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;
     (v) The current offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement; or
     (vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional).
     (f) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.835.
     (g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time.
     (h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:
     (i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;
     (ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years; or
     (iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.
     (i) ((The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
     (j) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
     (k))) The offense resulted in the pregnancy of a child victim of rape.
     (((l))) (j) The defendant knew that the victim of the current offense was a youth who was not residing with a legal custodian and the defendant established or promoted the relationship for the primary purpose of victimization.
     (((m))) (k) The offense was committed with the intent to obstruct or impair human or animal health care or agricultural or forestry research or commercial production.
     (((n))) (l) The current offense is trafficking in the first degree or trafficking in the second degree and any victim was a minor at the time of the offense.
     (m) The offense involved a high degree of sophistication or planning.
     (n) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
     (o) The defendant committed a current sex offense, has a history of sex offenses, and is not amenable to treatment.
     (p) The offense involved an invasion of the victim's privacy.
     (q) The defendant demonstrated or displayed an egregious lack of remorse.
     (r) The offense involved a destructive and foreseeable impact on persons other than the victim.
     (s) The defendant committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group.
     (t) The defendant committed the current offense shortly after being released from incarceration.
     (u) The current offense is a burglary and the victim of the burglary was present in the building or residence when the crime was committed.
     (v) The offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim's status as a law enforcement officer is not an element of the offense.
     (w) The defendant committed the offense against a victim who was acting as a good samaritan.
     (x) The defendant committed the offense against a public official or officer of the court in retaliation of the public official's performance of his or her duty to the criminal justice system.
     (y) The victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. This aggravator is not an exception to RCW 9.94A.530(2).

NEW SECTION.  Sec. 8   A new section is added to chapter 9.94A RCW to read as follows:
     (1) At any time prior to trial or entry of the guilty plea if substantial rights of the defendant are not prejudiced, the state may give notice that it is seeking a sentence above the standard sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based.
     (2) The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.
     (3) Evidence regarding any facts supporting aggravating circumstances under RCW 9.94A.535(3) (a) through (y), shall be presented to the jury during the trial of the alleged crime, unless the state alleges the aggravating circumstances listed in RCW 9.94A.535(3) (e)(iv), (h)(i), (o), or (t). If one of these aggravating circumstances is alleged, the trial court may conduct a separate proceeding if the evidence supporting the aggravating fact is not part of the res geste of the charged crime, if the evidence is not otherwise admissible in trial of the charged crime, and if the court finds that the probative value of the evidence to the aggravated fact is substantially outweighed by its prejudicial effect on the jury's ability to determine guilt or innocence for the underlying crime.
     (4) If the court conducts a separate proceeding to determine the existence of aggravating circumstances, the proceeding shall immediately follow the trial on the underlying conviction, if possible. If any person who served on the jury is unable to continue, the court shall substitute an alternate juror.
     (5) If the jury finds, unanimously and beyond a reasonable doubt, one or more of the facts alleged by the state in support of an aggravated sentence, the court may sentence the offender pursuant to RCW 9.94A.535 to a term of confinement up to the maximum allowed under RCW 9A.20.021 for the underlying conviction if it finds, considering the purposes of this chapter, that the facts found are substantial and compelling reasons justifying an exceptional sentence.

NEW SECTION.  Sec. 9   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 10   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.