                                                                  2015 JUL-6 am3:



      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                        No. 71408-2-1
                       Respondent,
                                                        DIVISION ONE
       v.



LELAND DULANI HARRIS,                                   UNPUBLISHED OPINION

                       Appellant.                       FILED: July 6. 2015

       Spearman, C.J. — Pursuant to plea negotiations, Leland Dulani Harris

waived his right to a jury trial and entered an Alford1 plea of guilty to the charge

of attempted murder in the second degree, while armed with a deadly weapon,

and to the aggravating factor that the crime involved domestic violence and

occurred within sight or sound of his minor children. The sentencing court

imposed an exceptional sentence above the standard range. Harris appeals,

contending that the exceptional sentence violated his rights under the Sixth

Amendment of the United States Constitution and the Sentencing Reform Act of

1981 (SRA), chapter 9.94A RCW. Finding no error, we affirm.

                                           FACTS


       In early 2013, Leland Harris and Carmen Young had been in a dating

relationship in New Jersey for about six years and had two children together,



       1 North Carolina v. Alford. 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d. 162 (1970).
No. 71408-2-1/2


ages five and three. The relationship was marred by domestic violence and

eventually Harris was incarcerated. While he was serving his sentence, Young

moved to Washington. After Harris's release from custody, Young allowed him to

come to Washington to visit her and the children for a week. At the end of the

week, Harris refused to leave, but he eventually agreed to do so and Young

bought him a return ticket to New Jersey.

       The day before Harris was scheduled to leave, Young returned home from

work to find him drinking outside her apartment building. Harris followed Young

into her apartment and they sat quietly on the sofa for a while. Suddenly, Harris

grabbed her by the hair and said "Bitch, I'm not going to let you take my kids from

me." Clerk's Papers (CP) at 7. He then dragged her into the kitchen by her hair.

Harris pulled a knife from the kitchen drawer and dragged Young to the bedroom.

The younger child came running into the bedroom and as Young "was holding

her, telling her to calm down and stop crying and go in her room ... [tjhat's when

he stabbed [her] the first time, when I was holding H.H           He stabbed me on

my left side and said 'I'm going to kill you bitch.'" Ia\ Their older child started to
enter the bedroom and Young told the two to leave. Harris kicked both children

out of the room and closed the door. He then stabbed Young again, this time in

the chest, before fleeing with Young's cell phone.

       A neighbor found Young bleeding profusely and called the police. When
the police arrived, they found the children shaking and distraught. As Young
explained that she had been stabbed by Harris, Harris returned to the scene and
confessed to the crime. He was placed under arrest. Young was taken to
No. 71408-2-1/3


Harborview Medical Center and treated for injuries to her kidney, spleen

pancreas and lung.

          Harris was charged with attempted murder in the second degree-

domestic violence, while armed with a deadly weapon and an aggravating factor

that the crime involved domestic violence and occurred within sight or sound of

his minor children. He was also charged with two counts of fourth degree

assault-domestic violence. Pursuant to plea negotiations, the State agreed to

dismiss the fourth degree assault charges and Harris agreed to plead guilty to

the remaining allegations by way of an Alford plea. In the statement of defendant

on plea of guilty he stated:

          I plead guilty to the crime(s) of [ajttempted murder 2 with domestic
          violence allegation under RCW 10.99.020; an aggravating factor
          under RCW 9.94A.535(3)(h)(ii) of the crime involving domestic
          violence and being committed in the presence of the victim or
          offender's minor children and a special allegation of being armed
          with a deadly weapon, to wit: a knife (sic) as charged in the
          information, including all charged enhancements and domestic
          violence designations.

CP at 22. In addition, the form asks Harris to "state briefly in [his] own words

what [he] did that makes [him] guilty of this (these) crime(s), including

enhancements and domestic violence relationships, if they apply[,]. . ." Harris

stated:

          This is an Alford Plea. I wish to plead guilty without having to admit
          that I committed the acts. I have reviewed the police reports in this
          case and believe that there is a substantial probability that I would
          be convicted if this matter went to trial. The court can review the
          certification of probable cause to determine that there is a factual
          basis for this plea.

CP at 22.
No. 71408-2-1/4


Harris also stipulated that "[f]or purposes of the plea ... the knife used was 3

inches or longer."2 jd.

        The trial court reviewed the certification of probable cause and found a

factual basis for the plea. The court accepted Harris's guilty plea after

determining that it was knowingly, intelligently and voluntarily made.3 jd. At the

conclusion of the hearing Harris refused to sign the State's felony "plea

agreement." Harris acknowledged that in exchange for his plea of guilty the State

agreed to dismiss the assault charges as to the children. But he contended there

was no plea agreement and that he "was just pleading to the mercy of the court,

though, and to the judge's discretion." VRP at 48. Although the "plea agreement"

is not part of the record on appeal, the parties appear to agree that it contained

language which would have expressly permitted the court to consider the

certification for determination of probable cause for sentencing purposes.

        The standard range for Harris's charges, based on the seriousness level

and his offender score, including the twenty-four month deadly weapon

enhancement, was 124.5-199.5 months. But the court imposed an exceptional


         2Harris's stipulation to the knife having a blade longer than three inches was necessary
because the certification of probable cause did not specify the length of the knife, and thus, could
not by itself establish a factual basis for the court to find that the knife qualified as a deadly
weapon under RCW 9.94A.825. The finding required the court to add twenty-four months to
Harris's standard range under RCW 9.94A.533(4)(a).
        3During an extensive colloquy at the guilty plea hearing, the court specifically asked
Harris several times whether he was pleading guilty to the "aggravating factor of the crime
involving domestic violence, and being committed in the presence ofthe victim or offender's
minor children     " Verbatim Record of Proceedings (VRP) at 58. (See also VRP at 25, 61, 67,
68.) After the court answered several of Harris's questions and allowed him opportunities to
speak privately with his attorney, he answered "I plead guilty." VRP at 68. He also acknowledged
that he was "giving up [his] rights to trial, giving up [his] rights to fight the charges, understanding
all the consequences" and agreed the court could "review the Certification ofProbable Cause to
determine that there is a factual basis for this plea." VRP at 61, 66.
No. 71408-2-1/5


sentence of 216 months, finding that "[t]he crime was committed in the presence

of the victim and defendant's minor children." CP at 41. The finding was based

"solely on the fact that there was a plea to an aggravating factor. . . ." VRP at

132. Harris appeals.

                                    DISCUSSION

       Harris contends the trial court was without authority to impose an

exceptional sentence. He claims he is entitled to a jury trial on the aggravating

factor because he did not stipulate to the facts relied upon by the judge to impose

the exceptional sentence. The State argues that Harris pled guilty as charged,

including to the aggravating factor. By pleading guilty, the State claims that Harris

established the aggravating factor as a matter of law, despite his Alford plea and

refusal to sign the felony plea agreement.

       We review de novo whether a court was authorized to impose an

exceptional sentence. State v. Hughes, 154 Wn.2d 118, 132, 110 P.3d 192

(2005). abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212,

126 S.Ct. 2546, 165 L.Ed.2d 466 (2006).

       Under the SRA, a sentencing court may impose an exceptional sentence

"if it finds ... that there are substantial and compelling reasons justifying an

exceptional sentence." RCW 9.94A.535. The statute sets forth a number of

factors that would support an aggravated sentence. RCW 9.94A.535(2). RCW

9.94A.537(3) states that "[t]he 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
No. 71408-2-1/6


waived, proof shall be to the court beyond a reasonable doubt, unless the

defendant stipulates to the aggravating facts."

       The Sixth Amendment requires that any fact, other than the fact of a prior

conviction, that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury and proved beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000). The relevant "statutory maximum" is the maximum sentence a judge may

impose on the basis of facts reflected in the jury verdict or admitted by the

defendant. Blakelv v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004). Nothing, however prevents a defendant from waiving his

Apprendi rights. Jd at 310. "When a defendant pleads guilty, the State is free to

seek judicial sentence enhancements so long as the defendant either stipulates

to the relevant facts or consents to judicial factfinding. If appropriate waivers are

procured, States may continue to offer judicial factfinding as a matter of course to

all defendants who plead guilty." jU (internal citations omitted).

       Harris argues that the trial court violated Blakelv and the SRA because it

imposed an exceptional sentence in reliance on facts that were not found by a
jury or a court beyond a reasonable doubt and not stipulated to by Harris. But the

record shows that as part of his Alford plea of guilty to the underlying crime and

the aggravating factor, Harris stipulated that the court could consider the

certificate for determination of probable cause to find a factual basis for both

pleas. Harris does not dispute that based on that stipulation and the finding ofa
factual basis for the plea to the underlying crime that he is guilty of that crime as
No. 71408-2-1/7


a matter of law or that the court may constitutionally sentence him for that crime.

But he argues these same principles do not apply to his Alford plea of guilty to

the aggravating factor. The argument is unconvincing because Harris does not

explain why his plea of guilty to the aggravating factor should be treated

differently than his plea of guilty to the underlying crime.

        Harris's reliance on State v. Suleiman, 158 Wn.2d 280, 143 P.3d 795

(2006), is misplaced. In that case, the defendant was charged with three counts

of vehicular assault. The victims were passengers in the car Suleiman was

driving. Suleiman entered an Alford plea of guilty to the charges. The State

indicated that at sentencing it would seek an exceptional sentence on the ground

that Suleiman knew or should have known that one of the victims, K.D., was

particularly vulnerable. Suleiman stipulated that the facts set forth in the
certification for determination of probable cause and the prosecutor's summary

were real and material facts for sentencing purposes. However, he did not agree

that those facts formed a legal basis for an exceptional sentence.

       The stipulated documents established that as Suleiman was driving

aggressively and at excessive speeds, the passengers yelled at him to slow
down and stop so they could get out. Suleiman ignored their pleas and told them
to shut up. He eventually lost control of the car and crashed into an embankment,
causing serious injuries to the passengers, including K.D. who was paralyzed
from the neck down. The sentencing court determined that K.D. was particularly

vulnerable and the defendant knew or should have known of that vulnerability
No. 71408-2-1/8


and imposed an exceptional sentence of twenty-eight months beyond the high

end of the standard range.4

       On appeal, the Washington Supreme Court agreed with Suleiman and

found that the real and material facts to which he had stipulated were insufficient

by themselves to establish a factual basis for the conclusion that the victim was

particularly vulnerable. The court stated:

              While the documents imply that Suleiman knew or should
      have known that [K.D.] was particularly vulnerable, they do not say
      so specifically, nor do they state that vulnerability was a substantial
      factor in the crime. In addition, Suleiman did not stipulate that the
      record supported a finding that [K.D.] was a particularly vulnerable
      victim. Even assuming Suleiman's stipulation is valid, the trial court
      still had to make these factual conclusions to support an exceptional
      sentence based on victim vulnerability. Because these factual
      conclusions were not part of the stipulation and they were not found
      by a jury beyond a reasonable doubt, we conclude that Suleiman's
      exceptional sentence violates Blakelv.

jU at 293. Thus, the error in Suleiman was that the sentencing court had to find
facts beyond those set forth in the stipulated documents in order to establish the
aggravating factor and Suleiman had neither agreed to those facts nor waived his
right to have a jury determine their existence.

        In this case, however, Harris pleaded guilty to the aggravating factor and

agreed that the court could determine whether the facts set out in the certification
for determination of probable cause were sufficient to establish that he had
committed a crime of domestic violence within sight and sound of his minor




        4The sentencing court also found two other aggravating factors, but the Court ofAppeals
affirmed only on the ground ofthe victim's particular vulnerability and the State relied solely on
that ground before the Supreme Court.
No. 71408-2-1/9


children. The court did so and concluded the facts were sufficient. Unlike in

Suleiman, here, the court did not have to rely on inferences or implications

beyond those explicitly stated in the certification to find the requisite factual basis

for the aggravating factor. The certification clearly established that the crime was

one of domestic violence ("Leland Dulani Harris (07-22-75) and Carmen Rae

Young (10-29-84) have had a 6 year dating relationship and two children in

common; 5 year old R.H. and 3 year old H.H." CP at 5) and that it was committed

within sight and sound of his minor children ("So I was holding [H.H.], telling her

to calm down and stop crying and go in her room.. . That's when he stabbed me

the first time, when I was holding H.H. ... He stabbed me on my left side and said

'I'm going to kill you bitch.'... R.H. was about to start coming out too and he

kicked R.H. back and closed the door." CP at 7)

       Harris also points out that he refused to sign a document summarizing his

plea agreement with the State that expressly permitted the court to consider the
certification for determination of probable cause for sentencing purposes. He

argues that as a result, the court was prohibited from relying on that document to
find facts supporting the aggravating factor. But it is clear from the record that the
court did not rely on the certification as a basis for imposing the exceptional
sentence. The court noted it was "clear" that Harris "pled to the aggravating

factor and he waived his right to a jury trial to find the aggravating factor." VRP at
131. The court then stated that its decision to impose an exceptional sentence

was based "solely on the fact thatthere was a plea to an aggravating factor...."
VRP at 132.
No. 71408-2-1/10


        Harris does not contest his plea of guilty to the aggravating factor. He

appears to argue only that his failure to sign the State's document summarizing

the plea agreement somehow negates his express agreement to permit the court

to review the certification to determine if it contained facts sufficient to support his

plea of guilty to the aggravating factor. The argument is untenable and we reject

it.

        Because Harris pleaded guilty to the aggravating factor and consented to

judicial determination of whether the facts set for in the certification for

determination of probable cause were sufficient to establish the aggravating

factor and because those facts, without the necessity of additional judicial fact

finding, support the trial court's conclusion that the aggravating factor was

present, we affirm the exceptional sentence imposed in this case.5
        Affirmed.




WE CONCUR:




         5Harris also claims that he received ineffective assistance of counsel at trial because his
 attorney agreed oracquiesced to the exceptional sentence. Because we find that the trial court
 did not err, we decline to review the issue of ineffective assistance of counsel.


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