WA Supreme Court: Accomplice Aggravating Factors Require Knowledge Informing the Factor
This is a case all about sentencing aggravators. For those that follow this blog, you know that sentences can be adjusted one way or another pursuant to a series of aggravating and mitigating factors that apply in certain situations. These are all governed by statute.
In this case, Hayes was charged with quite a few things, including leading organized crime, identity theft, possession of stolen property, possession of stolen vehicles, and (no surprise here) possession of meth. On the identity theft charge, the trial court gave an instruction on an aggravating factor regarding ‘major economic offense’:
The trial court also instructed the jury that to find the count was a major economic offense, the jury had to find at least one of two factors beyond a reasonable doubt: (1) the crime involved multiple victims or multiple incidents per victim or (2) the crime involved a high degree of sophistication or planning or occurred over a lengthy period of time.
Now, some of these offenses were based on accomplice liability. So back in the day, the code specifically said that accomplices were punished the same as the main person doing the crime. It used the language “every person concerned in the commission of a felony . . . is a principal, and shall be proceeded against and punished as such.” The “and punished as such” language was removed in 1975, thus allowing discretion with the trial court judge.
Now, the Court has held that an aggravator for an accomplice can only be applied if the statute allowing the aggravator specifically says it applies to accomplices. Here’s the interesting part, the supreme court acknowledged that its cases had allowed exceptional sentences absent express language before, but is diverting in this case. So how much are they diverting?
Turns out not much. What they are actually saying is to apply the aggravating factor to the accomplice absent the language, you have to look to what role the accomplice played. An accomplice can’t get an aggravating factor for deadly weapon if they didn’t use a deadly weapon personally, because there was no accomplice language in the aggravating factor, “any sentence enhancement must depend on the accused’s misconduct.” McKim, 98 Wn.2d 111, 653 P.2d 1040 (1982). But even there, the court stretched it to include not just the accomplice being armed, but having knowledge the other person was armed. This has also been applied to drug free zone enhancements, where the accomplice didn’t do anything in a drug free zone.
So basically, for an aggravating factor, knowledge regarding the factor is the standard. If the accomplice knew, for example, that this was being committed against a bunch of people, then the factor would apply.
We cannot tell from the jury's special verdict if it found that Hayes had any knowledge that informs the aggravating factors for a major economic offense, such as whether he knew the offense would involve multiple victims or would involve a high degree of sophistication. The jury was instructed on two factors phrased in relation to "the current offense," not in relation to "the defendant." In essence, the aggravating factors and special verdict form asked the jury about the nature of the offense, not about Hayes's role in it. It is this critical question that the jury's special verdict does not answer. Without a finding of knowledge that indicates that the jury found the aggravating factors on the basis of Hayes's own conduct, they cannot apply to Hayes. Because we cannot determine from the jury findings whether the exceptional sentence was based improperly on automatic liability for the offense, we vacate his exceptional sentence.
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