Blakely Strikes Again: Trial Courts Can Impanel Juries on Remand; RCW 9.94A.537 applies retroactively
In a 4-2-3, split, the Washington Supreme Court held: 1) RCW 9.94A.537, the statute allowing a court to impanel a jury to decide aggravating factors, applies retroactively and 2) because it applies retroactively, the trial court on remand from a Blakely PRP, could impanel one here.
The wrinkle comes from the fact that the amendment provides for notice that the state will be seeking aggravating factors. The court held that the amendment for notice includes the word may, not shall.
Quick mental check. Would a prosecutor EVER give notice then if they didn't have to? Seems you're pragmatically castrating the statute by interpreting may in such a way. But that's neither hear nor there, because, once it was realized that people who are on remand didn't get notice, another fix was initiated:
In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.
Essentially, the fact that you were convicted of them before is your notice. The lead opinion also held that there is no requirement to charge aggravating factors in the information.
Because this is a split decision, the limitations imposed by the concurrence make a huge difference:
I concur in the result reached by the lead opinion because I believe RCW 9.94A.537(2) provides a constitutionally permissible means for a trial court to impanel a jury for purposes of resentencing. I write separately, however, because the lead opinion is mistaken in its interpretation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The lead opinion interprets Blakely to require that aggravating factors be proved to the jury but not that they be charged in the information. Lead Opinion at 11. I disagree. Any facts justifying a sentence above an offense's standard sentencing range are functionally equivalent to elements of the crime. Blakely, 542 U.S. at 303; Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Such facts must be found by a jury beyond reasonable doubt. Blakely, 542 U.S. at 301.
Well now we're in a pickle. If JJ Stephens and C. Johnson are of the opinion they need to be in the information, the opinion of the dissenters, if concurring, could have an effect. The dissent was all piss and vinegar regarding the need to provide for the aggravating factors in the information. Justice Stephens notes that it is impossible to do so now, and the dissent's route wouldn't allow any resentencing procedure.
Essentially, from here on out, you must charge the aggravating factors in the information. But post-Blakely remands can still go forward with an impaneled jury.