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                                                                                                                          c" OF INA SHING C
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGT /

                                                        DIVISION II

 STATE OF WASHINGTON,                                                                     No. 43141 -6 -II


                                                Respondent,


            v.




LAURA LYNN HICKEY,                                                                UNPUBLISHED OPINION


                                                Appellant.



        MELNICK, J. —                Laura Lynn Hickey appeals the exceptional sentence imposed after she

pleaded guilty to second degree murder while armed with a deadly weapon. She also stipulated to

the aggravating factor charged in the amended information that her victim was particularly

vulnerable.           Hickey contends that the trial court violated her Sixth Amendment rights, as

articulated      in   Blakely   v.   Washington, 542 U. S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 ( 2004),                by

making factual findings that her victim was particularly vulnerable not only because of age but

also   because         of   drug     intoxication.     Because Hickey stipulated to the aggravating factor of

 particular      vulnerability,"        and admitted that her victim was particularly vulnerable because he was

a premature           baby,   the    court' s   additional   finding   of   drug intoxication   was   harmless   error.   We


affirm the exceptional sentence and remand solely for the trial court to strike the reference to the

victim' s   drug      intoxication from the findings           of   fact supporting the   exceptional sentence.
43141 -6 -II



                                                         FACTS



              Hickey gave premature birth to a son in her home. She decapitated him with a knife. After

a pathologist determined that the baby had been alive at birth, the State charged Hickey with first

degree        murder.    The State alleged six aggravating factors, including the allegation that Hickey

knew or should have known that the victim was particularly vulnerable or incapable of resistance.

              After the court entered an order finding Hickey competent to stand trial, the State made a

plea offer to amend the charge to second degree murder with the special allegation that Hickey

committed the crime while armed with a deadly weapon and with the single aggravating factor

that Hickey knew, or should have known that the victim was particularly vulnerable or incapable

of resistance.         The offer provided that Hickey could argue for a standard range sentence and that

the State would be free to argue any sentence up to the statutory maximum of life in prison.

              Hickey    accepted   the   plea offer.   During the plea hearing, and after Hickey waived her

constitutional rights, including her right to a jury trial, Hickey orally admitted that she intended to

kill her child, that she was armed with a deadly weapon, and that the victim was particularly

vulnerable and incapable of resistance due to his age.'


              Prior to the sentencing hearing, both parties submitted sentencing memoranda to the court.

Hickey' s memorandum stated that "[ t] he facts in this case are summarized by the attached reports."

Clerk'    s   Papers ( CP)   at   25.   One of the reports, written by a psychologist, noted that both Hickey

and her victim had significant amounts of methamphetamine in their bloodstreams at the time of

the   offense.      The State' s memorandum included the autopsy report which stated that the baby

suffered from acute methamphetamine intoxication.




1
    Her   written plea statement provided         merely " that   victim was   particularly   vulnerable."   CP at 14.




                                                             2
43141 -6 -II




            At the sentencing hearing, the State argued for an exceptional sentence of 82 years. Hickey

asked      for   a   low - nd
                         e        sentence of      10   years.     The trial court imposed an exceptional sentence of 30


years      after     stating, "   The defendant has stipulated to the aggravating factor of the victim being

particularly         vulnerable."        Report    of   Proceedings ( RP) ( Feb.      22, 2012)   at   18. The court noted that,


based       on       the    facts      presented        at   the    sentencing    hearing,   which       included   the   baby' s

methamphetamine addiction, it would have found another aggravating factor, i.e. deliberate

cruelty, but the law did not allow it to do so. The court recognized that aggravating factors must

be either stipulated to or found by a jury. The court then stated that the facts at least supported the

stipulated aggravating factor                 of "particular       vulnerability." RP ( Feb. 22, 2012) at 18 - 19.


            The court entered written findings of fact and conclusions of law supporting the exceptional

sentence. Its findings stated that the justification for an exceptional sentence included the fact that

  t] he victim in this matter was a particularly vulnerable premature baby boy who was drug

intoxicated (methamphetamine)."                     CP at 455. Hickey objected to this finding. Her attorney stated,

 The defendant stipulated to the aggravating circumstance of a particularly vulnerable victim. And

I would have no problem with that being the finding of fact. There are some additional aggravating

circumstances listed here the way this document is drafted that I don' t think flow from that. They

may be      present        in this   case,   but I think the     additional   language is unnecessary." RP ( Feb. 22, 2012)


at   22.    He       explained       further, " Well, it     goes on    to say — well,   first it indicates that a particularly

vulnerable premature                  baby boy,     no question about         that,   who was   drug    addicted.   That' s not a


stipulation."          RP ( Feb. 22, 2012) at 22. The court responded that the legal conclusion of particular


vulnerability required a factual basis and that the drug intoxication was part of the victim' s

particular vulnerability.




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43141 -6 -II




             The court sentenced Hickey to 360 months. This term of confinement included the deadly

weapon enhancement and was also based on the aggravating factor of a " Particularly Vulnerable

Victim." CP at 447.


             Hickey now appeals her exceptional sentence and argues that the trial court engaged in

improper fact finding by basing the aggravating factor of particular vulnerability partly on her

victim' s     drug     intoxication.     Hickey does not challenge the court' s additional reliance on her

admission       that   her   victim was      particularly     vulnerable   because he     was    a   premature    baby.   We


conclude that any improper fact finding was harmless and affirm the judgment and sentence.

                                                           ANALYSIS


             The Sixth Amendment to the United States Constitution guarantees the right to a jury trial.

State   v.   Steele, 134 Wn.      App.    844, 850, 142 P. 3d 649 ( 2006).           This right extends to any fact that

increases the penalty for a crime beyond the prescribed statutory maximum. Steele, 134 Wn. App.

at   850 ( citing    Blakely,    542 U. S.   at   302 -04).   The relevant " statutory maximum" is the maximum

the court may impose based on the facts reflected in the jury verdict or admitted by the defendant.

Blakely,      542 U. S.   at   303.   In other words, the statutory maximum is the maximum the court may

impose without any additional findings. Blakely, 542 U.S. at 303 -04.

             A jury does not need to find the facts supporting an exceptional sentence, however, when

a    defendant   pleads      guilty   and stipulates   to the   relevant   facts.   Blakely,   542 U.S.   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." Blakely, 542

U.S. at 310; see also Steele, 134 Wn. App. at 852 ( no Blakely error where defendant stipulated to

findings of fact and conclusions of law for exceptional sentence).




                                                                   4
43141 -6 -II



        Hickey argues that the court, in making its findings, exceeded the scope of her stipulation

by finding that her victim was drug intoxicated in addition to being a premature newborn. To

support her claim of error, Hickey cites cases where the defendants' factual stipulations following

a guilty plea did not support an exceptional sentence. These case are distinguishable because the

defendants in those cases stipulated to facts but not to an aggravating factor.

        In State    v.   Hagar, 158 Wn.2d 369, 371, 144 P. 3d 298 ( 2005),              the defendant pleaded guilty

to three    counts of     first degree theft   and stipulated        to the   facts supporting his   convictions.   Our


Supreme Court held that the trial court erred by making the additional finding that the crimes

constituted a " major economic offense" that justified an exceptional sentence. Hagar, 158 Wn.2d


at 374. This sentence violated Blakely because it was predicated on an unstipulated fact not found

by a jury beyond a reasonable doubt. Hagar, 158 Wn.2d at 374.

           Similarly, a defendant' s stipulation to the facts supporting his convictions did not support

an exceptional sentence based on his victim' s particular vulnerability in State v. Suleiman, 158

Wn.2d 280, 283 -84, 143 P. 3d 795 ( 2006).             For the victim' s vulnerability to support an exceptional

sentence, the State must show that the defendant knew or should have known of the victim' s

particular vulnerability, and the vulnerability must have been a substantial factor in the crime' s

commission.       Suleiman, 158 Wn.2d          at   291 -92;   see   RCW 9. 94A. 535( 3)( b) (   exceptional sentence




justified if defendant knew or should have known that victim was particularly vulnerable or

incapable      of resistance).    Because the defendant did not stipulate to the aggravating factor of

particular vulnerability, and the factual conclusions needed to show particular vulnerability were

neither part of the stipulation nor found by a jury beyond a reasonable doubt, the exceptional

sentence violated Blakely. Suleiman, 158 Wn.2d at 293.




                                                               5
43141 -6 -II




        Hickey argues that, under Hagar and Suleiman, her stipulation was not adequate to prove

the victim' s particular vulnerability absent the court' s improper fact finding. We disagree. Hickey

admitted that her victim was particularly vulnerable due to age, and this fact alone supports the

aggravating factor    of particular    vulnerability. We       agree with   the trial   court   that, " it' s hard to think


of a more vulnerable       being   than a ...     newborn."     RP ( Feb. 22, 2012)       at   18.   But, when the trial


court supported the stipulated aggravating factor of particular vulnerability with the additional

finding that the victim was a drug intoxicated, it arguably engaged in improper fact finding under

Blakely.

        Blakely    error   may be harmless.           See Suleiman, 158 Wn.2d at 295 ( remanding to Court of

Appeals to determine       whether    Blakely    error was   harmless). Constitutional error is harmless if the


reviewing court is convinced beyond a reasonable doubt that any reasonable fact finder would

have reached the same result in the absence of the error. State v. Guloy, 104 Wn.2d 412, 425, 705

P. 2d 1182 ( 1985).


        Even if the trial court did err in identifying drug intoxication as a basis for finding particular

vulnerability, we hold that this error was harmless. Hickey has never sought to withdraw her plea;

she seeks      only resentencing     within     the   standard range.   We are convinced that on this record,


including Hickey' s stipulation and the admitted facts, any rational fact finder would have found

beyond a reasonable doubt that the victim was particularly vulnerable. Hickey' s attorney conceded

as much by stating, at the sentencing hearing, that the additional language supporting the

aggravating factor was unnecessary.
43141 -6 -II



        Consequently, we conclude that the trial court' s finding of drug intoxication was harmless

error. We affirm the exceptional sentence imposed and remand solely for the purpose of striking

the reference to drug intoxication from the findings of fact supporting the exceptional sentence.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We   concur:
