Facts: Petitioner Terrance Powell was convicted of murder in the Superior Court for Pierce County. An exceptional sentence was subsequently imposed by the judge based upon the presence of aggravating factors. Upon appeal, Powell’s sentence was vacated and the case remanded for resentencing in light of the United States Supreme Court’s decision in Blakely v. Washington, which held that any fact increasing the penalty for a crime beyond the prescribed maximum must be submitted to a jury and proven beyond a reasonable doubt. Prior to resentencing, the state notified Powell of its intention to seek an exceptional sentence. Powell responded by filing a motion seeking the imposition of a standard range sentence, asserting that the state could not retroactively seek to impose an exceptional sentence as to do so would be inconsistent with both the notice provision of Washington Revised Code §9.94A.537(1) and the right to be informed of the nature and cause of an accusation guaranteed by the 6^th Amendment to the United States Constitution and Article I §22 of the Washington State Constitution. The trial court concluded that the state could empanel a jury for the purpose of determining whether aggravating factors existed without violating either §9.94A.537(1) or constitutional guarantees of the right to be informed of the nature and cause of accusations. Powell appealed this decision to the Supreme Court of Washington.

Question(s): May the state, following a reversal of an exceptional sentence, subsequently empanel a jury to determine whether aggravating factors supporting an exceptional sentence exist when the state did not notify the defendant of its intention to seek an exceptional sentence prior to trial?

Conclusion: Chief Justice Alexander’s opinion for the Court ruled that the notice provision of §9.94A.537(1) was not intended to operate retroactively and that constitutional notice guarantees apply only to the underlying crime and its essential elements rather than to aggravating factors relevant only to sentencing. Thus, the Court affirmed the trial court’s decision.

Docket No. 80496-6 (from Pierce Case No. 97-1-02259-4)

Petitioner: Terrance Powell

(Counsel: Erik Louis Bauer, John Cain, and Rita Joan Griffith)

Respondent: State of Washington

(Counsel: Terry Lane, Kathleen Proctor, and Michelle Luna Green)

Briefs:

Argument: Thursday, May 8, 2008 9:20am

[Source: TVW, http://tvw.org]

Decided: Thursday, December 17th, 2009

Prevailing Party: State of Washington (Respondent)

Vote: 6-3

Citation: Pending

Court: Alexander4 Court (2008-2009)

Alexander
(Majority)

Johnson

Madsen

Sanders

Chambers

Owens
(Dissent)

Fairhurst

Johnson

Stephens
(Concurs)