                                                                                                               ED
                                                                                                Cou"RT OF APPEALS
                                                                                                       DIVJISIO J IJ
                                                                                               20, 13 Noy 13     AM 11: 14
                                                                                                   T     F 7 S      NGTOIN


                                                                                                            UT



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                 DIVISION II

STATE OF WASHINGTON,                                      I                      No. 43207 - -II
                                                                                           2


                                        Respondent,


          V.




LARRY ALAN HAYES,                                         I               PUBLISHED OPINION




            JOHANSON, A. C.J. —         We are asked to decide whether a major economic offense sentence


enhancement may be imposed when the trial court instructed the jury that the underlying

conviction could be based on accomplice liability. Because the major economic offense sentence

enhancement does not indicate legislative intent to extend the enhancement to accomplices, we


vacate      the   sentence   enhancement     and remand       for resentencing.     We also direct the court on


remand to correct the judgment and sentence consistent with this opinion.


                                                      FACTS


            In May 2009, Larry Alan Hayes went to trial after police found evidence that he, or an

accomplice, manufactured several false identifications and credit cards and failed to return

vehicles rented under a         false   name.   State v. Hayes, 164 Wn. App. 459, 464 -66, 262 P.3d 538

 2011).        The State alleged that Hayes, or an accomplice, committed several offenses, including

but   not   limited to,   leading   organized crime and six     identity theft   counts.   Hayes, 164 Wn.   App.    at
No. 43207 -2 -II



463 -64.    Regarding the first degree identity theft charge at issue here, the court instructed the

fury:


                      1)    That on or about [ the] period [ between August 26 and September 11,
           2007],     the   defendant,       or   an     accomplice,         knowingly     obtained,   possessed,   or

           transferred a means of identification or financial information of Scott Mutter;
                    2) That the defendant acted with the intent to commit or aid or abet any
           crime;

                    3) That the defendant, or an accomplice, obtained credit, money, goods,
           or services that have in excess of $1500 value from the acts described in element
            1) and;
                      4)    That any of these acts occurred in the State of Washington.

Resp' t   Suppl. Clerk'      s   Papers ( CP)     at   146 (   Jury   Instruction No. 15) (   emphasis added).




           The   court      also   defined    accomplice         liability: " A person is guilty of a crime if it is

committed by the conduct of another person for which he or she is legally accountable. A person

is legally accountable for the conduct of another person when he or she is an accomplice of such
other person     in the     commission of         the   crime."       Resp' t Suppl. CP at 142 ( Jury Instruction No. 11).

           The State alleged that each count, except for one drug charge, was aggravated by being a

major economic offense.              Hayes, 164 Wn.            App.    at   463.   The trial court instructed the jury that to

find that Hayes' s crimes were major economic offenses, 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.
                      The    above    factors     are alternatives.          This means that if you find from the
           evidence that any one of the alternative factors has been proven beyond a
           reasonable doubt, then it will be your duty to answer " yes" on the special verdict
           form.   To return a verdict of "yes" the jury need not be unanimous as to which
           alternative has been proved beyond a reasonable doubt, as long as each juror finds
           that at least one alternative has been proven beyond a reasonable doubt.




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No. 43207 -2 -II




Resp' t Suppl. CP at 177 ( Jury Instruction No. 45).

        The jury found Hayes guilty of all counts except one and found that each count, except

one, was a major economic offense.           Hayes, 164 Wn.            App.       at   466.   The trial court imposed a


180 -month exceptional sentence on the leading organized crime conviction and concurrent

sentences within the standard range on the other convictions. Hayes, 164 Wn. App. at 466.

        On   appeal,    this court reversed the leading organized crime conviction and two stolen

vehicle possession convictions.        Hayes, 164 Wn.          App.    at    463.       This court held in part that the


trial court erred in permitting Hayes to be convicted of leading organized crime even if the jury

found that Hayes       was   merely aiding    and   abetting the leader.                Hayes,   164 Wn. App. at 463.

Hayes also argued that the exceptional sentence could not stand because it was impermissibly

premised on accomplice        liability.   Hayes, 164 Wn.           App.    at   483.    This court declined to address


the sentencing issue after reversing the organized crime conviction on which the exceptional

sentence   was     based.    Hayes,    164 Wn.      App.       at   483.         This court affirmed the remaining


convictions. Hayes, 164 Wn. App. at 485.

        Hayes returned to superior court for resentencing. The State asked the court to impose an

exceptional sentence again based on the jury' s major economic offense aggravating factor

finding for all the remaining counts and because the facts at trial showed that Hayes deserved an
exceptional sentence.        The trial court determined that an exceptional sentence was appropriate


for the first degree identity theft charge based on the jury' s special verdicts that all the crimes

were major economic offenses. Hayes appeals his exceptional sentence.




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No. 43207 -2 -II



                                                  ANALYSIS


                         I. EXCEPTIONAL SENTENCE AND ACCOMPLICE LIABILITY


         Hayes argues that the trial court erroneously imposed an exceptional sentence because it

did not have statutory authority to enter an exceptional sentence when his conviction was based

on accomplice       liability.'   The State' s sole argument is that the court may rely on accomplice

liability as a. basis for an exceptional sentence when the jury' s special verdict findings support
                              2
the   exceptional    sentence .     We agree with Hayes and hold that the trial court did not have


statutory authority to rely on the major economic offense sentence enhancement to impose an

exceptional sentence when the jury was instructed that guilt for the underlying offense could be

based on accomplice liability: Accordingly, we vacate the sentence enhancement.

                                           A. Standard of Review


         A trial court may sentence a defendant to an exceptional sentence if (1) the jury finds by
special verdict, beyond a reasonable doubt, one or more aggravating factors alleged by the State;

and ( 2) the trial court determines that the facts are substantial and compelling reasons justifying

                                                        RCW 9. 94A. 537( 3), ( 6); State v. Stubbs, 170 Wn.2d
                                                5353;

an exceptional sentence.          RCW 9. 94A.


 117, 123 -24, 240 P. 3d 143 ( 2010).      To reverse an exceptional sentence, we must find either that




  A party generally may not raise issues for the first time on appeal. RAP 2. 5( a); State v. Ford,
 137 Wn.2d 472, 477, 973 P. 2d 452 ( 1999).       But an illegal or erroneous sentence may be
 challenged for the first time on appeal. Ford, 137 Wn.2d at 477.

 2 The State does not argue that sufficient evidence exists to find that Hayes himself committed
 the conduct that would support the major economic crime enhancement. Accordingly, we do not
 address this issue.


 3 RCW 9. 94A.535 has been amended several times since 2009, but these amendments do not
 affect our analysis.




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No. 43207 -2 -II



the trial court record does not support the sentencing court' s articulated reasons, that those

articulated reasons do not justify a sentence outside the standard range for that offense, or that

the length of-the exceptional sentence was clearly excessive. RCW 9. 94A.585( 4).

                                                          B. Analysis


          The trial court' s imposition of a sentence enhancement generally must depend on the

defendant'    s own conduct.         State   v.   McKim, 98 Wn.2d 111, 117, 653 P. 2d 1040 ( 1982).                    Thus a


defendant' s culpability for an aggravating factor cannot be premised solely on accomplice

liability for the underlying substantive crime without explicit evidence of the legislature' s intent
to   create strict    liability.   McKim, 98 Wn.2d           at    117.    In McKim, our Supreme Court held that an


accomplice must have knowledge that another participant was armed with a weapon in order to

apply the     deadly     weapon enhancement              to the   accomplice.       98 Wn.2d      at   117.   But the jury was

not so instructed and the Supreme Court vacated the enhancement. McKim, 98 Wn.2d at 118. In

response,      the    legislature    amended       the    deadly        weapon    statute   to   specifically apply to " the


defendant     or an accomplice."        State v. Bilal, 54 Wn. App 778, 780, 776 P. 2d 153, review denied,

 113 Wn.2d 1020 ( 1989).


          In State v. Pineda -
                             Pineda, Division One of this court explained that without. explicit


 statutory authorization for accomplice liability to support a sentence enhancement, a defendant' s
 own acts must        forin the basis for the       sentence enhancement.             154 Wn. App. 653, 657, 226 P. 3d

 164 ( 2010).        The issue there was whether the school bus zone enhancement could apply to an

 accomplice      who was       not   physically     present       in the   school   bus   zone.    Pineda- Pineda, 154 Wn.


 App.    at   660.     Division One      noted      that the "      accomplice liability statute does not contain a

 triggering     device      for    penalty    enhancement[ s;             thus]   the authority to impose a sentence



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No. 43207 -2 -II




enhancement on the basis of accomplice liability must come from the specific enhancement

statute."           Pineda, 154 Wn.
             Pineda -                        App.   at   661.   As an example, the firearm enhancement statute,


RCW     9. 94A.533( 3)     contains language showing legislative intent to extend the firearm

enhancement to accomplice liability by referring specifically to " the offender or an accomplice."

Division One concluded that the school zone enhancement statute did not contain a triggering

device for accomplice liability. Pineda- Pineda, 154 Wn. App. at 664 -65.

            Similarly, we conclude that the major economic offense sentence enhancement statute

does not contain a triggering device that would extend its application to a conviction based on

accomplice      liability. Hayes' s exceptional sentence was based on the major economic offense

enhancement as       defined in RCW 9. 94A.535( 3)( d). It provides, in pertinent part, that


            T] he following circumstances are an exclusive list of factors that can support a
            sentence above the standard range[:]


                    d)   The current offense was a major economic offense or series of

            offenses, so identified by a consideration of any of the following factors:
                            i)     The current offense involved multiple victims or multiple
                   incidents per victim;
                            ii)     The current offense involved attempted or actual monetary
                   loss substantially greater than typical for the offense;
                            iii) The current offense involved a high degree of sophistication
                   or planning or occurred over a lengthy period of time; or
                            iv) The defendant used his or her position of trust, confidence, or
                   fiduciary responsibility to facilitate the commission of the current offense.

RCW 9. 94A. 535( 3)( d).         Nothing in RCW 9. 94A.535( 3)( d) explicitly extends responsibility to an

 accomplice.




            The State urges us not to follow Pineda -
                                                    Pineda and argues that in Pineda -
                                                                                     Pineda

 Division One      misconstrued      State   v.   Silva- Baltazar, 125 Wn.2d 472, 886 P. 2d 138 ( 1994),    and




 McKim, 98 Wn.2d 111.             The State also cites Division One' s opinion in In re Pers. Restraint of



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No. 43207 -2 -II



Howerton, 109 Wn.                 App.   494, 36 P. 3d 565 ( 2001), to support its argument to extend the major


economic offense sentence enhancement to accomplices.


          But the major economic offense enhancement is unlike the aggravating statutes in

Howerton because there the pertinent statute actually mentioned accomplices, 109 Wn. App. at

499,    and     here RCW 9. 94A.535 does                  not mention accomplice              liability   at all.   Nonetheless, the


State argues that the legislature intended for RCW 9. 94A.535 to apply equally to accomplice

liability because the applicable portion of the statute refers to the circumstances of "the current

offense"        rather   than " the defendant."            Br.   of   Resp' t   at   7.   The State argues that this signals the


legislative intent that the              enhancement can         be    applied    to any    participant   in the    crime.   The State


is    correct ' that     three of the         four    alternatives     in RCW 9. 94A.535( 3)( d)             mention "   the   current



offense" rather than " the defendant:"

                         i)      The current offense involved multiple victims or multiple incidents
           per victim;

                         ii)      The current offense involved attempted or actual monetary loss
           substantially greater than typical for the offense;
                         iii)     The current offense involved a high degree of sophistication or
           planning or occurred over a lengthy period of time; or
                         iv)      The defendant used his or her position of trust, confidence, or
           fiduciary responsibility to facilitate the commission of the current offense.

RCW 9. 94A. 535( 3)( d) (               emphasis added).         And the two that the court instructed Hayes' s jury on

 were (    i)   and (    iii).    But    we   are    unpersuaded.        Because Pineda -
                                                                                        Pineda directs us to look for


     triggering language" in a statute, we must look for language specifically invoking accomplice

 liability. We do not agree that using the term " the current offense" equates to legislative intent to
 apply the        sentence enhancement               to   accomplices.          Instead, if the legislature wanted this major


 economic         offense         enhancement        to   apply to      accomplices,         it could have easily and clearly




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No. 43207 -2 -II



mentioned accomplice               liability   in RCW 9. 94A.535         as   it did in the firearm                    if
                                                                                                         enhancement — "     the


offender or an accomplice was armed with a                        firearm."     RCW 9. 94A. 533( 3).        The legislature also


clearly provided for accomplice liability in the sentence enhancement for crimes committed

while   in jail     or     state   correctional      facility — if the offender or an accomplice committed the
                                                                "

offense     while     in   a   county jail     or    state    correctional    facility."   RCW 9. 94A. 533( 5).        Thus, the


State' s argument regarding legislative intent is not persuasive.

            Further, the State argues that Pineda -
                                                  Pineda incorrectly made a sweepingly broad ruling .

by treating all enhancement statutes the same when it made its decision based on whether the

enhancement statute mentioned accomplice liability and that instead we should read the

particular enhancement statute as                   a whole      to determine the legislature'       s   intent.   But other than


                                                                                 than " the defendant,"        the State does not
pointing to the language              of " the current offense"        rather




argue   how RCW 9. 94A. 535               applied as a whole supports accomplice                  liability.   We disagree with


the State because every time that " the defendant" is referenced, the legislature chose not to say

 the defendant           or an accomplice."            Also, we must read the entire RCW 9. 94A.535 as a whole

and nowhere in RCW 9. 94A.535 did the legislature choose to reference accomplices.

            Thus, the State rests its argument in support of the exceptional sentence solely on the

basis that the major economic offense enhancement applies. to Hayes even when the jury was

instructed that Hayes could be found guilty of the underlying offense based on accomplice

 liability. We must reverse a sentence enhancement if the sentencing court' s articulated reasons

 do                                                 the standard range for that                    RCW 9. 94A. 585( 4).     Here
      not   justify   a sentence outside                                               offense.




 the sentencing court based the exceptional sentence on the jury' s special verdict that Hayes' s
 crime was a major             economic    offense.          But because Hayes'      s conviction was      based   on accomplice
No. 43207 -2 -II




liability and the major economic offense sentence enhancement statute contains no triggering

language for     accomplice          liability,   the   exceptional sentence was         improper. We vacate the major


economic offense sentence enhancement and remand for resentencing.

                             II. CLERICAL ERROR ON JUDGMENT AND SENTENCE


         Next, Hayes argues that his judgment and sentence erroneously lists four offenses as

current offenses in his criminal history. Hayes asserts that this court reversed counts 9 ( unlawful

possession of a stolen vehicle),              21 (     leading   organized crime),      and 22 ( unlawful possession of a


stolen vehicle);    and the resentencing court dismissed count 20 ( second degree stolen property

possession)     on remand.           The State concedes error and agrees that the error must be corrected.

The State also argues that Hayes' s first degree identity theft conviction was inadvertently

omitted    from the defendant'           s criminal         history   and should   be   added.   We agree and accept the


State' s concession.


          A   clerical   error   is    one   that,     if   amended, "    correctly convey[ s] the intention of the court

based    on other evidence."            State     v.   Davis, 160 Wn.       App.   471, 478, 248 P. 3d 121 ( 2011).   The


record reflects the court' s intention here that it did not consider the reversed and dismissed

                                 4
charges at    resentencing.           And the record reflects the court' s intention to consider the first degree

identity theft charge as a current conviction at resentencing. .

          Because the error is clerical in nature, it does not provide an independent ground for

 resentencing.      We remand to the trial court to enter a corrected judgment and sentence.



 4
     One unlawful stolen vehicle possession count was charged under a separate cause number and
 the court signed a dismissal order on the day of resentencing and indicated that it was doing so at
 the resentencing hearing.



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No. 43207 -2 -II



Reference to the two unlawful stolen vehicle possession counts, one second degree stolen

property possession count, and one leading organized crime count should be stricken from
Hayes' s judgment and sentence on remand. And reference to one first degree identity theft count

should be added to the judgment and sentence' s criminal history section as a current charge.

        We   vacate   Hayes'   s sentence enhancement and remand   for resentencing.   We also direct


the court on remand to correct the judgment and sentence consistent with this opinion.




                                                                    Johanson, A.C.J.




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