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ISSAQUAH LAW GROUP

Issaquah Law Group: Experienced Counsel; Client Focus

PHILOSOPHY: Formed in 2014, Issaquah Law Group is a law firm with one focus: providing businesses and insurers with high quality legal representation with the responsiveness of a smaller firm. ILG was founded on the principle that strong client relationships are the key to successful legal representation and strong relationships are built upon clear and consistent communication. 

LITIGATION: We work closely with our clients to fully and accurately understand their goals, work collaboratively to formulate specific legal strategies, and execute the agreed plan of action utilizing methods most likely to result in the efficient and effective resolution of the matter. ILG attorneys have a broad base of litigation experience to draw on in all Federal and State courts from on-the-ground investigations to Supreme Court appeals in the areas of personal injury and wrongful death, product liability, commercial general liability, labor & employment, construction litigation, and catastrophic losses due to fire and explosion.

BUSINESS LAW: Rarely is the path from point A to point B a straight line, so our role in a business law practice is to find alternatives, devise workable strategies, and keep your business ideas, goals and objectives moving toward realization. ILG’s business attorneys help clients achieve their goals with respect to business formation, intellectual property, labor and employment, CAN-SPAM, copyright and trademark

COMMUNITY: In addition, the Lawyers at Issaquah Law Group remain active in the legal and civic community. A core commitment of our Issaquah Attorneys is community service. Our attorneys' civic involvement includes the King County Civil Rights Commission; the City of Issaquah Planning Policy Commission; the Northwest Screenwriters Guild, service as a pro tem judge. We live and work in the Pacific Northwest, and we aim to make it a better place.

In addition, through The Amateur Law Professor Blog and LinkedIn postings, we share pertinent opinions and decisions of the Washington State Supreme Court, as well as the pertinent opinions and decisions of the Washington State Courts of Appeal so that our clients can be as update to date on cutting legal issues as we are.

WA Supreme Court: Accomplice Aggravating Factors Require Knowledge Informing the Factor

State v. Hayes

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. 

While the lawyers at Issaquah Legal Services do not currently practice criminal law, we expect to add an Issaquah Attorney practicing in the area soon. In the meantime, please contact us for a referral to other qualified attorneys.

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