                                                       :OURT OF APPEALS Di\
                                                        STATE OF V/A3H1HGTO:

                                                       2013 NOV 12 AH 9=00




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 DIVISION ONE
              Respondent,
                                                 No. 69102-3-1
                   v.

                                                 UNPUBLISHED OPINION
ARTHUR EUGENE BUZZELLE,

             Appellant.                          FILED: November 12, 2013


       Dwyer, J. — Arthur Buzzelle appeals from the exceptional sentence

imposed upon him for one count of rape of a child in the first degree and one

count of child molestation in the third degree. Buzzelle contends that the trial

court's sentencing determination should be reversed and the cause remanded for

sentencing within the standard range. This is so, Buzzelle asserts, because the

trial court should have found facts supporting the aggravating circumstances in

the same proceeding in which it found facts supporting his guilty plea.

Additionally, Buzzelle avers that the Supreme Court's holding in State v. Siers,

174 Wn.2d 269, 274 P.3d 358 (2012), is contrary to the constitution and,

accordingly, the State was required to arraign him on the amended information

alleging the aggravating circumstances. Because this court has no authority to
No. 69102-3-1/2



overrule decisions made by the Supreme Court and because the trial court did

not err in the procedures utilized in imposing the exceptional sentence, we affirm.

                                                 I


        On January 13, 2012, the State charged Buzzelle with one count of rape

of a child in the first degree and one count of child molestation in the third

degree, based on a series of sexual encounters between Buzzelle and his

daughter A.M.B.1 On May 25, 2012, the State moved for leave to amend the
information in order to provide Buzzelle with notice of the State's intent to argue

for an exceptional sentence. The motion set forth the following aggravating

factors with respect to both counts:

   •    Deliberate cruelty - RCW 9.94A.535(3)(a);

   •    Particularly vulnerable victim - RCW 9.94A.535(3)(b);

   • Ongoing pattern of sexual abuse - RCW 9.94A.535(3)(g);

   •    Domestic violence - RCW 9.94A.535(3)(h);

   • High degree of sophistication - RCW 9.94A.535(3)(m);

    •   Abuse of trust - RCW 9.94A.535(3)(n);

    •   Impact on persons other than victim - RCW 9.94A.535(3)(r).

        Buzzelle pleaded guilty to both counts on May 29, 2012. At the plea
hearing, the State withdrew the motion to amend, but indicated that it still
intended to seek an exceptional sentence based on the aggravating factors it had
alleged. Defense counsel indicated that Buzzelle agreed "that the State has


        1As A.M.B. is a minor, we refer to her by her initials.

                                                -2-
No. 69102-3-1/3



given us notice that they will seek to prove the aggravators and to seek an

exceptional sentence based on those at sentencing. . . . [W]e agreed that that is

sufficient notice for them to make these arguments at sentencing." The trial court

confirmed with Buzzelle his understanding that "the issue of whether there are

any aggravating circumstances which the Court should take into account in this

case in determining your sentence can be considered at the time of your

sentencing," and that Buzzelle retained the right to a juryfor that hearing. The

trial court then found that Buzzelle entered his guilty plea knowingly, intelligently,

and voluntarily, and that the plea was supported by a sufficient factual basis.

The trial court set the sentencing hearing for July 5, 2012.

       Buzzelle waived his right to a jury for the sentencing hearing. At the

hearing, Buzzelle submitted a stipulation offacts with attached documents,
including the probable cause determination, witness statements, and a transcript
ofthe Island County Sheriff's Office's interview with A.M.B. Buzzelle contended
that he should be considered for a Special Sex Offender Sentencing Alternative

(SSOSA). The trial court declined to grant the SSOSA request, basing its
decision on the victim's wishes and the seriousness of the circumstances of the

offenses.

       The trial court then considered whether the stipulated facts supported any

of the aggravating factors alleged by the State, and found that all seven
aggravating circumstances were present in this case and that an exceptional
sentence was justified. The trial court also ruled that any one ofthe aggravating
No. 69102-3-1/4



circumstances would sufficiently support the exceptional sentence. Thereupon,

the trial court sentenced Buzzelle to a minimum of 240 months of confinement.

       Buzzelle appeals.

                                          II


       Buzzelle first contends that the trial court erred by finding facts supporting

the aggravating factors at a proceeding that took place after the guilty plea was

entered. This is so, he contends, because RCW 9.94A.537(4) mandates that

facts must be found for the underlying crime and for the aggravating factors in

the same proceeding. We disagree.

       Buzzelle does not assign error to any of the findings of fact or conclusions

of law entered by the trial court. Rather, Buzzelle contends that the trial court

utilized an improper procedure in determining that an exceptional sentence was

warranted. "Resolution of this issue . . . requires interpretation of a section in

Washington's Sentencing Reform Act of 1981, chapter 9.94A RCW, pertaining to
aggravating circumstances that raise a sentence above the standard range.
Statutory interpretation is a legal question, which we . . . review de novo on

appeal." Siers, 174 Wn.2d at 274.

       Washington's Sentencing Reform Act governs the requirements for

exceptional sentences. According to RCW 9.94A.537(3):

       The 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 waived, proof shall be to the court beyond
       a reasonable doubt, unless the defendant stipulates to the
       aggravating facts.
No. 69102-3-1/5



Washington enacted this statute to comply with the holding of Apprendi v. New

Jersey. 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that

"[ojther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." See Laws of 2005, ch. 68, § 1 ("The

legislature intends to conform the sentencing reform act, chapter 9.94A RCW, to

comply with the ruling in Blakelv v. Washington . . . .").2
       Buzzelle contends that RCW 9.94A.537(4) mandates that the trial court

find facts supporting aggravating circumstances at the same proceeding in which

it finds facts supporting a guilty plea. RCW 9.94A.537(4) reads:

       Evidence regarding any facts supporting aggravating
       circumstances under RCW 9.94A.535(3)(a) through (y) shall be
       presented to the jury during the trial of the alleged crime, unless the
       jury has been impaneled solely for resentencing, or unless the state
       alleges the aggravating circumstances listed in RCW
       9.94A.535(3)(e)(iv), (h)(i), (o), or (t). If one of these aggravating
       circumstances is alleged, the trial court may conduct a separate
       proceeding if the evidence supporting the aggravating fact is not
       part of the res geste of the charged crime, if the evidence is not
       otherwise admissible in trial of the charged crime, and ifthe court
       finds that the probative value of the evidence to the aggravated fact
       is substantially outweighed by its prejudicial effect on the jury's
       ability to determine guilt or innocence for the underlying crime.
RCW 9.94A.537(4), by its plain language, expressly contemplates a jury trial as a
predicate to its application: "Evidence regarding any facts supporting aggravating
circumstances under RCW 9.94A.535(3)(a) through (y) shall be presented to the

jury during the trial of the alleged crime." RCW 9.94A.537(4) (emphasis added).

        2 In Blakelv v. Washington. 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004), the United States Supreme Court held that Washington's statutory sentencing procedure
violated the Sixth Amendment rights articulated in Apprendi.
No. 69102-3-1/6



Moreover, RCW 9.94A.537(4) must be read in conjunction with RCW

9.94A.537(3). State v. Pillatos. 159 Wn.2d 459, 477, 150 P.3d 1130 (2007)

(statues must be read as a whole). RCW 9.94A.537(3) provides for a jury trial as

the default sentencing procedure, but allows for the waiver of this procedural

right.3
          In State v. Pillatos, the Supreme Court held that RCW 9.94A.537

"provides specific procedures for trying aggravators tojuries" not that an

allegation of aggravating circumstances precluded the defendant from pleading

guilty. 159 Wn.2d at 478 (emphasis added). The court noted that "[njothing in
that language [RCW 9.94A.535(3)] restricts sentencing-juries to guilt-phase

juries." Pillatos, 159 Wn.2d at 478. Rather, "the act does not limit sentencing-
juries to cases where the defendant pleads not guilty." Pillatos, 159 Wn.2d at
478. Where a defendant pleads guilty, the legislature intends for the trial court to

impanel a jury to determine the existence of aggravating circumstances.4
Pillatos, 159 Wn.2d at 477. Here, the trial court advised Buzzelle of his right to

have a jury determine the existence ofaggravating circumstances. Buzzelle
waived that right at the sentencing hearing.5 Buzzelle fails to establish any error
in this procedure.



       3 "The facts supporting aggravating circumstances shall be proved to a jury beyond a
reasonable doubt.... If a jury iswaived, proof shall be to the court beyond a reasonable doubt,
unless the defendant stipulates to the aggravating facts." RCW 9.94A.537(3).
           4The legislature overturned part of Pillatos by statute; however, this holding was left
intact. See Laws of 2007, ch. 205, § 1.
          "^The right to have a jury determine the existence ofaggravating circumstances is
waivable. Blakelv. 542 U.S. at 310; State v. Dillon. 142 Wn. App. 269, 275, 174 P.3d 1201
(2007).
No. 69102-3-1/7



       Nevertheless, Buzzelle contends that because he did not stipulate that the

details of his crime constituted aggravating circumstances, State v. Hagar6
necessitates reversal. We disagree. In that case, Hagar pleaded guilty to three

counts of theft in the first degree and stipulated to "the facts set forth in the

certification for probable cause, the prosecutor's summary, and the facts set forth

in an appendix to the agreement." Hagar, 158 Wn.2d at 371-72. The trial court

conducted the sentencing hearing and found that Hagar's crimes constituted a

"majoreconomic offense," an aggravating circumstance. Hagar, 158 Wn.2d at

372. The Supreme Court overturned Hagar's exceptional sentence because it

"was predicated on an unstipulated fact that was not found by a jury beyond a

reasonable doubt," in violation of Blakelv.7 Hagar. 158 Wn.2d at 374. However,

Hagarwas sentenced before RCW 9.94A.537 was amended to provide a
mechanism for impaneling a juryto determine the existence of aggravating

circumstances. Hagar, 158 Wn.2d at 372. Having been sentenced under the old

statutory scheme, Hagarwas never advised of his right to a jury trial for
sentencing purposes. Hagar, 158 Wn.2d at 373 ("Hagar entered into his plea
agreement with the understanding thatWashington's sentencing scheme permits
a trial judgeto engage in fact finding, and if the judge finds substantial and
compelling reasons, he or she may impose an exceptional sentence beyond the
standard range."). Accordingly, Hagar is inapposite.



       6 158 Wn.2d 369, 144 P.3d 298 (2006).
       7Blakelv applied because Hagar's case was on direct appeal at the time Blakelv was
decided. Hagar. 158 Wn.2d at 373.
No. 69102-3-1/8



       The trial court did not err when it conducted the sentencing hearing at a

proceeding subsequent to that in which it accepted Buzzelle's guilty plea.8


       Buzzelle next contends that the trial court erred by imposing an

exceptional sentence because the State did not charge the aggravating factors in

the information. This is so, he contends, because the State must charge

aggravating factors in the information in order for notice to be constitutionally

sufficient. We disagree.

       This court "reviewfs] allegations of constitutional violations de novo."

Siers, 174 Wn.2d at 273-74. In order to satisfy the due process protections

provided by the state and federal constitutions, "the defendant must receive
notice prior to the proceeding in which the State seeks to prove [aggravating]

circumstances to a jury," such that he be allowed "to 'mount an adequate

defense' against" those circumstances. Siers, 174Wn.2d at 277 (quoting State v.
Schaffer. 120 Wn.2d 616, 620, 845 P.2d 281 (1993)). Washington has codified

this requirement as follows:

           At any time prior to trial or entry of the guilty plea if substantial
           rights of the defendant are not prejudiced, the state may give
           notice that it is seeking a sentence above the standard
           sentencing range. The notice shall state aggravating
           circumstances upon which the requested sentence will be
           based.




        8The parties dispute what the proper remedy is in the event ofreversal. Given that we
perceive no error in the trial court's actions, we need not reach this issue.

                                             -8-
No. 69102-3-1/9



RCW 9.94A.537(1). Buzzelle contends that in order to satisfy due process,

aggravating factors must appear in the information and the defendant must be

arraigned on them.

      Buzzelle's contention has been squarely addressed and rejected by the

Washington Supreme Court.

      [S]o long as a defendant receives constitutionally adequate notice
      of the essential elements of a charge, "the absence of an allegation
      of aggravating circumstances in the information [does] not violate
      [the defendant's] rights under article I, section 22 of the Washington
      Constitution, the Sixth Amendment to the United States
      Constitution, or due process."

Siers, 174 Wn.2d at 276-77 (alterations in original) (quoting State v. Powell, 167

Wn.2d 672, 687, 223 P.3d 493 (2009)).

       Here, Buzzelle received notice prior to pleading guilty that the State

intended to seek an exceptional sentence. The State provided Buzzelle with a
list ofthe aggravating circumstances that the State intended to prove. Moreover,
Buzzelle acknowledged that he had received notice from the State, and even

agreed that the notice was sufficient to satisfy due process.
       Nevertheless, Buzzelle contends that aggravating factors must appear in

the information in order to satisfy due process, and requests that we rule that the
Supreme Court's holding in Siers is unconstitutional under the Sixth Amendment
to the United States Constitution and article I, section 22 of the Washington State

Constitution. This we decline to do. "This court is not in a position to overturn a

decision ofthe Washington Supreme Court. If [Supreme Court precedent] is to
be changed, that court must do so. This court lacks that authority." State v.

                                          9-
No. 69102-3-1/10



Lawrence, 166 Wn. App. 378, 392-93, 271 P.3d 280 (2012) (citing State v. Gore.

101 Wn.2d481.487, 681 P.2d 227 (1984)). review denied, 174Wn.2d 1009

(2012).

      A federal circuit court has well expressed why it is that courts of appeal

should be loathe to accept an entreaty that a Supreme Court case was wrongly

decided:


       If a court of appeals could disregard a decision of the Supreme
       Court by identifying, and accepting, one or another contention not
       expressly addressed by the Justices, the Court's decisions could be
       circumvented with ease. They would bind only judges too dim-
       witted to come up with a novel argument.

Nat'l Rifle Ass'n of Am.. Inc. v. Citv of Chicago, III.. 567 F.3d 856, 858 (7th Cir.

2009), rev'd on other grounds sub nom, McDonald v. Citv of Chicago, III., 561

U.S. _, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).

          Buzzelle received notice, prior to pleading guilty, of the State's intention to

seek an exceptional sentence. His due process rights were not violated.

          Affirmed.




We concur:




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