BILL REQ. #:  S-5102.1 



_____________________________________________ 

SECOND SUBSTITUTE SENATE BILL 6497
_____________________________________________
State of Washington59th Legislature2006 Regular Session

By Senate Committee on Ways & Means (originally sponsored by Senators Kline, Franklin and Hargrove)

READ FIRST TIME 02/7/06.   



     AN ACT Relating to felony sentences; amending RCW 9.94A.510, 9.94A.535, 9.94A.537, 9.94A.190, and 9.94A.850; creating a new section; and prescribing penalties.

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

NEW SECTION.  Sec. 1   The legislature finds that statutorily granted judicial discretion in sentencing has been limited by appellate court decisions requiring jury findings prior to imposing sentences above the standard sentence ranges. The legislature further finds that expanding the sentencing ranges is the most appropriate method of increasing judicial discretion while retaining commensurate and appropriate punishment for similarly situated offenders as well as assuring the frugal use of state and local government resources. The legislature intends to provide judges with increased discretion and decrease the need to impose exceptional sentences. The legislature further intends that sentencing courts have the authority and power to adopt suitable processes of proceeding in cases where exceptional sentences are appropriate to the extent that such procedures are mandated by the United States Constitution or Washington state Constitution.

Sec. 2   RCW 9.94A.510 and 2002 c 290 s 10 are each amended to read as follows:


     ((TABLE 1



     Sentencing Grid


SERIOUSNESS

LEVEL

OFFENDER SCORE
 
0

1

2

3

4

5

6

7

8
9 or
more
XVILife Sentence without Parole/Death Penalty
XV23y4m24y4m25y4m26y4m27y4m28y4m30y4m32y10m36y40y
 240-250-261-271-281-291-312-338-370-411-
 320 333 347 361 374 388 416 450 493548
XIV14y4m15y4m16y2m17y17y11m18y9m20y5m22y2m25y7m29y
 123-134-144-154-165-175-195-216-257-298-
 220234244254265275295316357397
XIII12y13y14y15y16y17y19y21y25y29y
 123-134-144-154-165-175-195-216-257-298-
 164178192205219233260288342397
XII9y9y11m10y9m11y8m12y6m13y5m15y9m17y3m20y3m23y3m
 93-102-111-120-129-138-162-178-209-240-
 123136 147 160 171 184 216 236 277 318
XI7y6m8y4m9y2m9y11m10y9m11y7m14y2m15y5m17y11m20y5m
 78-86-95-102-111-120-146-159-185-210-
 102 114 125 136 147 158 194 211 245 280
X5y5y6m6y6y6m7y7y6m9y6m10y6m12y6m14y6m
 51-57-62-67-72-77-98-108-129-149-
 6875828996102130144171198
IX3y3y6m4y4y6m5y5y6m7y6m8y6m10y6m12y6m
 31-36-41-46-51-57-77-87-108-129-
 414854616875102116144171
VIII2y2y6m3y3y6m4y4y6m6y6m7y6m8y6m10y6m
 21-26-31-36-41-46-67-77-87-108-
 27344148546189102116144
VII18m2y2y6m3y3y6m4y5y6m6y6m7y6m8y6m
 15-21-26-31-36-41-57-67-77-87-
 2027344148547589102116
VI13m18m2y2y6m3y3y6m4y6m5y6m6y6m7y6m
 12+-15-21-26-31-36-46-57-67-77-
 14 2027344148617589102
V9m13m15m18m2y2m3y2m4y5y6y7y
 6-12+-13-15-22-33-41-51-62-72-
 12141720294354688296
IV6m9m13m15m18m2y2m3y2m4y2m5y2m6y2m
 3-6-12+-13-15-22-33-43-53-63-
 9121417202943577084
III2m5m8m11m14m20m2y2m3y2m4y2m5y
 1-3-4-9-12+-17-22-33-43-51-
 3 8 1212162229435768
II 4m6m8m13m16m20m2y2m3y2m4y2m
 0-902-3-4-12+-14-17-22-33-43-
 Days6 9 12141822294357
I  3m4m5m8m13m16m20m2y2m
 0-600-902-2-3-4-12+-14-17-22-
 DaysDays5 6 8 1214 182229))



     TABLE 1



     Sentencing Grid


SERIOUSNESS

LEVEL

OFFENDER SCORE
 
0

1

2

3

4

5

6

7

8

9
10 or
more
XVILife Sentence without Parole/Death Penalty
XV225-233-243-262-272-289-289-315-345-383-383-
 337 350 365 393 408 435 435 473 518575862
XIV123-134-144-154-165-175-195-216-257-298-298-
 220234244254265275295316357397595
XIII115-125-134-144-154-163-182-201-238-277-277-
 172187202216230245273301357416624
XII88-95-103-112-120-128-151-166-193-222-222-
 132143 155 168 180 194 227 248 290 333500
XI72-80-88-95-100-112-136-148-172-196-196-
 107 120 132 143 150 168 204 222 257 295442
X43-47-52-56-61-64-79-90-108-127-127-
 71798693100107132150180208312
IX26-29-34-38-43-47-64-72-90-108-108-
 435057647179107120150180270
VIII17-21-26-30-34-38-56-64-72-90-90-
 28364350576493107120150225
VII14-17-21-26-30-34-47-55-64-72-72-
 2128364350577993107120180
VI10+-14-17-21-26-30-38-47-55-64-64-
 17 2128364350647993107157
V6-10+-12+-14-17-27-34-43-52-61-61-
 121718213045577186100120
IV3-6-10+-12+-14-17-27-34-44-52-52-
 9121718213045577486120
III1-3-4-9-10+-16-17-27-36-43-43-
 3 8 1212172330456071120
II0-902-3-4-10+-13-16-17-27-36-36-
 Days6 9 12171923304560120
I0-600-902-2-3-4-10+-13-16-17-17-
 DaysDays5 6 8 1217 19233060


Numbers in the first and second horizontal rows of each seriousness category ((represent sentencing midpoints in years(y) and months(m). Numbers in the second and third rows)) represent standard sentence ranges in months, or in days if so designated. 12+ equals one year and one day. 10+ equals ten months and one day.

Sec. 3   RCW 9.94A.535 and 2005 c 68 s 3 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 RCW 9.94A.537.
     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.
     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).
     (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.
     (i) The offender score due to other current offenses, as opposed to prior offenses, results in a presumptive sentence that is clearly excessive.
     (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 RCW 9.94A.537.
     (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.
     (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 offense resulted in the pregnancy of a child victim of rape.
     (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.
     (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.
     (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).
     (z) 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.
     (aa) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
     (bb) 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.

Sec. 4   RCW 9.94A.537 and 2005 c 68 s 4 are each amended 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. A jury may be empaneled to find aggravating facts if the defendant pleads guilty to the underlying crime but not to the aggravating factor.
     (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.
     (6) If the defendant enters a guilty plea to the charged crime or the case is remanded for a new sentencing hearing, the court may empanel a jury for the purpose of considering any aggravating circumstances alleged by the state. The trial on the aggravating circumstances should occur within ninety days of the entry of the guilty plea, or the filing of an appellate court mandate. Upon a showing of good cause, the court may extend the time for the trial on aggravating circumstances. The time limit for holding a sentencing hearing, set forth in RCW 9.94A.500, shall not begin to run until the jury renders a verdict on the aggravating circumstances.

Sec. 5   RCW 9.94A.190 and 2001 2nd sp.s. c 12 s 313 are each amended to read as follows:
     (1) A sentence that includes a term or terms of confinement totaling more than one year, or a sentence set under RCW 9.94A.510 based on a sentence range with a minimum sentence of more than ten months, shall be served in a facility or institution operated, or utilized under contract, by the state. Except as provided in this subsection or subsection (3) or (5) of this section, a sentence of not more than one year of confinement shall be served in a facility operated, licensed, or utilized under contract, by the county, or if home detention or work crew has been ordered by the court, in the residence of either the offender or a member of the offender's immediate family.
     (2) If a county uses a state partial confinement facility for the partial confinement of a person sentenced to confinement for not more than one year, the county shall reimburse the state for the use of the facility as provided in this subsection. The office of financial management shall set the rate of reimbursement based upon the average per diem cost per offender in the facility. The office of financial management shall determine to what extent, if any, reimbursement shall be reduced or eliminated because of funds provided by the legislature to the department for the purpose of covering the cost of county use of state partial confinement facilities. The office of financial management shall reestablish reimbursement rates each even-numbered year.
     (3) A person who is sentenced for a felony to a term of not more than one year, and who is committed or returned to incarceration in a state facility on another felony conviction, either under the indeterminate sentencing laws, chapter 9.95 RCW, or under this chapter shall serve all terms of confinement, including a sentence of not more than one year, in a facility or institution operated, or utilized under contract, by the state, consistent with the provisions of RCW 9.94A.589.
     (4) Notwithstanding any other provision of this section, a sentence imposed pursuant to RCW 9.94A.660 which has a standard sentence range of over one year, regardless of length, shall be served in a facility or institution operated, or utilized under contract, by the state.
     (5) Sentences imposed pursuant to RCW 9.94A.712 shall be served in a facility or institution operated, or utilized under contract, by the state.

Sec. 6   RCW 9.94A.850 and 2005 c 282 s 19 are each amended to read as follows:
     (1) A sentencing guidelines commission is established as an agency of state government.
     (2) The legislature finds that the commission, having accomplished its original statutory directive to implement this chapter, and having expertise in sentencing practice and policies, shall:
     (a) Evaluate state sentencing policy, to include whether the sentencing ranges and standards are consistent with and further:
     (i) The purposes of this chapter as defined in RCW 9.94A.010; and
     (ii) The intent of the legislature to emphasize confinement for the violent offender and alternatives to confinement for the nonviolent offender.
     The commission shall provide the governor and the legislature with its evaluation and recommendations under this subsection not later than December 1, 1996, and every two years thereafter;
     (b) Recommend to the legislature revisions or modifications to the standard sentence ranges, state sentencing policy, prosecuting standards, and other standards. If implementation of the revisions or modifications would result in exceeding the capacity of correctional facilities, then the commission shall accompany its recommendation with an additional list of standard sentence ranges which are consistent with correction capacity;
     (c) Study the existing criminal code and from time to time make recommendations to the legislature for modification;
     (d)(i) Serve as a clearinghouse and information center for the collection, preparation, analysis, and dissemination of information on state and local adult and juvenile sentencing practices; (ii) develop and maintain a computerized adult and juvenile sentencing information system by individual superior court judge consisting of offender, offense, history, and sentence information entered from judgment and sentence forms for all adult felons; and (iii) conduct ongoing research regarding adult and juvenile sentencing guidelines, use of total confinement and alternatives to total confinement, plea bargaining, and other matters relating to the improvement of the adult criminal justice system and the juvenile justice system;
     (e) Assume the powers and duties of the juvenile disposition standards commission after June 30, 1996;
     (f) Evaluate the effectiveness of existing disposition standards and related statutes in implementing policies set forth in RCW 13.40.010 generally, specifically review the guidelines relating to the confinement of minor and first-time offenders as well as the use of diversion, and review the application of current and proposed juvenile sentencing standards and guidelines for potential adverse impacts on the sentencing outcomes of racial and ethnic minority youth;
     (g) Solicit the comments and suggestions of the juvenile justice community concerning disposition standards, and make recommendations to the legislature regarding revisions or modifications of the standards. The evaluations shall be submitted to the legislature on December 1 of each odd-numbered year. The department of social and health services shall provide the commission with available data concerning the implementation of the disposition standards and related statutes and their effect on the performance of the department's responsibilities relating to juvenile offenders, and with recommendations for modification of the disposition standards. The administrative office of the courts shall provide the commission with available data on diversion, including the use of youth court programs, and dispositions of juvenile offenders under chapter 13.40 RCW; and
     (h) Not later than December 1, 1997, and at least every two years thereafter, based on available information, report to the governor and the legislature on:
     (i) Racial disproportionality in juvenile and adult sentencing, and, if available, the impact that diversions, such as youth courts, have on racial disproportionality in juvenile prosecution, adjudication, and sentencing;
     (ii) The capacity of state and local juvenile and adult facilities and resources; and
     (iii) Recidivism information on adult and juvenile offenders.
     (3) Each of the commission's recommended standard sentence ranges shall include one or more of the following: Total confinement, partial confinement, community supervision, community restitution, and a fine.
     (4) The standard sentence ranges of total and partial confinement under this chapter, except as provided in RCW 9.94A.517, are subject to the following limitations:
     (a) If the maximum term in the range is one year or less, the minimum term in the range shall be no less than one-third of the maximum term in the range, except that if the maximum term in the range is ninety days or less, the minimum term may be less than one-third of the maximum;
     (b) If the maximum term in the range is greater than one year, the minimum term in the range shall be no less than ((seventy-five)) sixty percent of the maximum term in the range, except that for murder in the second degree in seriousness level XIV under RCW 9.94A.510, the minimum term in the range shall be no less than fifty percent of the maximum term in the range and except that for any offense with an offender score of ten or more, the minimum term in the range shall be no less than twenty-five percent of the maximum term in the range; and
     (c) The maximum term of confinement in a range may not exceed the statutory maximum for the crime as provided in RCW 9A.20.021.
     (5)(a) Not later than December 31, 1999, the commission shall propose to the legislature the initial community custody ranges to be included in sentences under RCW 9.94A.715 for crimes committed on or after July 1, 2000. Not later than December 31 of each year, the commission may propose modifications to the ranges. The ranges shall be based on the principles in RCW 9.94A.010, and shall take into account the funds available to the department for community custody. The minimum term in each range shall not be less than one-half of the maximum term.
     (b) The legislature may, by enactment of a legislative bill, adopt or modify the community custody ranges proposed by the commission. If the legislature fails to adopt or modify the initial ranges in its next regular session after they are proposed, the proposed ranges shall take effect without legislative approval for crimes committed on or after July 1, 2000.
     (c) When the commission proposes modifications to ranges pursuant to this subsection, the legislature may, by enactment of a bill, adopt or modify the ranges proposed by the commission for crimes committed on or after July 1 of the year after they were proposed. Unless the legislature adopts or modifies the commission's proposal in its next regular session, the proposed ranges shall not take effect.
     (6) The commission shall exercise its duties under this section in conformity with chapter 34.05 RCW.

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