                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           August 28, 2018



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 49760-3-II

                                Respondent,

         v.
                                                                 PUBLISHED OPINION
 BRIAN K. BRUSH,

                                Appellant.


       MAXA, C.J. – Brian Brush appeals the trial court’s imposition of an exceptional sentence

of 1,060 months for his first degree murder conviction. Brush murdered his former girlfriend,

Lisa Bonney. The court imposed the exceptional sentence in part under RCW

9.94A.535(3)(h)(i), based on a finding that Brush had committed an aggravated domestic

violence offense as part of an ongoing pattern of psychological abuse of Bonney manifested by

multiple incidents over a prolonged period of time.

       We hold that (1) the domestic violence/ongoing pattern of psychological abuse

aggravator is not unconstitutionally overbroad; (2) under State v. Baldwin, 150 Wn.2d 448, 78

P.3d 1005 (2003), Brush cannot challenge the ongoing pattern of psychological abuse aggravator

for being unconstitutionally vague; (3) the trial court did not err in finding that the ongoing

pattern of psychological abuse occurred over a prolonged period of time based on Brush’s abuse

of Bonney over nearly seven weeks; and (4) the trial court’s sentence was not clearly excessive

because it does not shock the conscience in light of the nature of Brush’s crime.
No. 49760-3-II


         Accordingly, we affirm Brush’s sentence.

                                               FACTS

Brush Excluding Bonney from His House

         For some time, Brush and Bonney had been in an on-and-off relationship. In April 2008,

Bonney moved into Brush’s house in Oregon along with her daughter, Elizabeth Bonney.1

Following a fight, Brush excluded them from the house and prevented them from returning by

changing the locks on the doors.

Domestic Violence Incident

         Brush and Bonney continued to have contact and later lived together in Long Beach,

Washington. On July 25, 2009, an altercation at their house resulted in Brush smashing a wine

bottle against the counter, throwing electronics and personal possessions belonging to Bonney

out of the house, and using a hammer to dent the hood and roof of Bonney’s car.

         When law enforcement responded, Brush alleged that Bonney had assaulted him by

scratching him. The officers determined that Bonney was the primary aggressor, arrested her,

and took her to jail. The following day, Brush withdrew his statement and stated that the assault

had never occurred. Brush later admitted that his allegations against Bonney were untrue. After

that night, Bonney and Elizabeth moved into a different house in Long Beach.

Brush’s Stalking of Bonney

         Over the next month, on several occasions Brush appeared to be following Bonney. Two

incidents occurred when Bonney was with a friend, Dan Driscoll. On August 12, while Bonney

was getting food with Driscoll, she saw a pickup truck drive by. Driscoll later testified that after

Bonney saw the truck she became terrified. Bonney and Driscoll then went to the beach, where



1
    We refer to Elizabeth Bonney by her first name for clarity. We intend no disrespect.


                                                  2
No. 49760-3-II


Driscoll saw the truck again. Bonney told him that the truck belonged to Brush. She said that

she wanted to leave because she did not feel safe.

       On August 16, Bonney and Driscoll went to a local festival where Bonney again saw

Brush’s truck. She became scared, causing her and Driscoll to leave for Driscoll’s parents’

house. While Bonney and Driscoll were at the house, Bonney left to talk to Brush. After she

returned, Brush came to the house and knocked on the door. Bonney told Driscoll to be quiet

and not to answer, and she said that she did not want any contact with Brush.

       Bonney left immediately afterwards and called Elizabeth. She told Elizabeth that Brush

was stalking her and asked Elizabeth to meet her at their house. Elizabeth testified that Bonney

sounded scared on the phone and that she was crying. Bonney and Elizabeth went to a friend’s

house while they tried to figure out what to do.

       Later that night, Bonney and Elizabeth thought it would be safe to go to the beach, a few

blocks away. Before leaving the apartment, Elizabeth looked to see if Brush’s truck was nearby

– she testified that several times before he had been watching them from around the corner.

Elizabeth testified that as they walked along the edge of the road, she heard a truck and saw the

lights of the truck behind them. As Elizabeth heard the truck accelerating, she turned around and

saw that the truck was not stopping. She thought either that they would be hit by the truck or

that there would be some other altercation.

       Bonney and Elizabeth ran to a nearby parking lot and hid. As the truck drove past,

Elizabeth saw that Brush was inside. Bonney and Elizabeth were both shaken up and crying.

Bonney was so scared that she began throwing up.

       When Bonney and Elizabeth returned to their house, there were voice messages on their

phone in which Brush stated, “If you don’t answer I’m sure that your work would love to see




                                                   3
No. 49760-3-II


naked pictures posted on the front door. Like I’m sure these people would love to see it if you’re

not going to talk to me.” Report of Proceedings (RP) (Nov. 15, 2016) at 219. He also threatened

to turn her in for improperly collecting unemployment and for committing tax fraud.

       Brush made a second assault complaint against Bonney with the police. Again, the

complaint was false.

       Another of Bonney’s friends, Steven Berglund, later testified about two more incidents in

which Brush appeared to be following Bonney. On August 31, Berglund was helping Bonney

move a bed to her new house when he saw Brush sitting in his truck two blocks away. Brush left

when Berglund saw him, but returned to the same area a little while later.

       On September 4, Berglund and a friend were talking with Bonney in a parking lot when

Brush drove by very slowly and looked at them. Berglund testified that when he pointed Brush

out to Bonney, she seemed frightened and fearful that Brush was there.

Bonney’s Death

       On September 11, Brush and Bonney had been discussing various financial issues by text

message and they agreed to meet in person. Bonney suggested meeting at a park. When they

met, Brush and Bonney began to argue. As the argument escalated, Brush got a shotgun from his

nearby truck.

       Brush used the shotgun to shoot Bonney four times at a short distance, killing her. The

last shot, to Bonney’s head, was at a distance of three or four feet. Three law enforcement

officers were walking nearby and witnessed the shooting.

Conviction and Appeal

       A jury found Brush guilty of first degree murder. The jury also found a number of

aggravating factors under RCW 9.94A.535(3) for purposes of sentencing, including that the




                                                4
No. 49760-3-II


crime was an aggravated domestic violence offense. The trial court’s jury instruction defined

“aggravated domestic violence offense” to include an offense that involved domestic violence

and was part of an ongoing pattern of psychological abuse over a prolonged period of time.

       Brush’s standard range sentence was between 240 and 320 months, plus a 60 month

firearm enhancement. However, the trial court imposed a 1,000 month exceptional sentence with

the 60 month firearm enhancement.

       Brush appealed his sentence, arguing that the jury instruction on the domestic violence/

ongoing pattern of psychological abuse aggravator, RCW 9.94A.535(3)(h), provided an improper

definition of “prolonged period of time.” See State v. Brush, 183 Wn.2d 550, 552-53, 556, 353

P.3d 213 (2015). The Supreme Court held that the instruction was improper and reversed

Brush’s exceptional sentence. Id. at 561. The court remanded to the trial court for consideration

of evidence of a prolonged pattern of abuse. Id.

Aggravating Factor Bench Trial

       On remand, Brush waived a jury trial on whether his crime was an aggravated domestic

violence offense and the issue was tried to the bench. The trial court admitted testimony

regarding Brush’s stalking of Bonney and their interactions, as described above.

       The trial court entered written findings of fact and conclusions of law, including the

following conclusions:

       3. This offense was an aggravated domestic violence offense that was part of an
       ongoing pattern of psychological or physical abuse manifested by multiple
       incidents over a prolonged period of time.

       4. It is further evident that Brush’s conduct and acts, including physical damage to
       Lisa’s property and the harm caused, including the conduct which was not reported,
       which included repeatedly stalking Lisa, demonstrated a pattern of psychological
       abuse warranting a finding that this was an aggravated domestic violence offense.




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No. 49760-3-II


Clerk’s Papers (CP) at 244. The court concluded beyond a reasonable doubt that the crime was

an aggravated domestic violence offense under RCW 9.94A.535(3)(h).

        The trial court attached a similar statement to its judgment and sentence. The court found

that Brush’s offense involved domestic violence and the offense was part of an ongoing pattern

of psychological abuse manifested by multiple incidents over a prolonged period of time and that

Brush’s conduct manifested deliberate cruelty. Based on its findings and the jury’s prior finding,

the court again imposed a 1,000 month exceptional sentence plus an additional 60 month firearm

enhancement. The court did not state that it would have imposed the same sentence if only one

of the aggravators had been present.

        Brush appeals his exceptional sentence.

                                             ANALYSIS

A.      DOMESTIC VIOLENCE/PSYCHOLOGICAL ABUSE SENTENCING AGGRAVATOR

        RCW 9.94A.535(3) provides a list of factors that can support a sentence above the

standard range. If the trier of fact finds one of these factors, the trial court is allowed but not

required to impose an exceptional sentence. RCW 9.94A.535; see State v. Weller, 197 Wn. App.

731, 735, 391 P.3d 527, review denied, 188 Wn.2d 1017 (2017).

        The domestic violence/ongoing pattern of psychological abuse aggravator is stated in

RCW 9.94A.535(3)(h) and allows for an exceptional sentence when:

        The current offense involved domestic violence, as defined in RCW 10.99.020, or
        stalking, as defined in RCW 9A.46.110, and one or more of the following was
        present:

        (i) The offense was part of an ongoing pattern of psychological, physical, or sexual
        abuse of a victim or multiple victims manifested by multiple incidents over a
        prolonged period of time.




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No. 49760-3-II


(Emphasis added.) The legislature has not defined “psychological abuse” or “prolonged period

of time” for purposes of this statute.

       Brush argues that RCW 9.94A.535(3)(h)(i) is unconstitutionally overbroad and

unconstitutionally vague, and that the trial court erred in finding that the psychological abuse

occurred over a prolonged period of time. We reject these arguments.

B.     OVERBREADTH CHALLENGE TO PSYCHOLOGICAL ABUSE AGGRAVATOR

       Brush argues that the domestic violence/ongoing pattern of psychological abuse

aggravator set forth in RCW 9.94A.535(3)(h)(i) is facially overbroad under the First Amendment

of the United States Constitution because it prohibits a substantial amount of protected speech.

We disagree.

       1.    Legal Principles

       The First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech.” See State v. Homan, 191 Wn. App. 759, 766-67, 364 P.3d 839 (2015). A

statute that legitimately prohibits certain unlawful conduct and unprotected speech can violate

the First Amendment when it also prohibits constitutionally protected speech.2 See State v.

Immelt, 173 Wn.2d 1, 6-7, 267 P.3d 305 (2011).

       Under the First Amendment, a law is unconstitutionally overbroad if it prohibits a

substantial amount of constitutionally protected speech. Homan, 191 Wn. App. at 766-67. This

determination involves weighing the amount of conduct and unprotected speech that the statute

legitimately prohibits against the amount of prohibited protected speech. Id. In striking this



2
 Brush also references article I, section 5 of the Washington Constitution in his assignment of
error on this issue, but provides no argument regarding that provision and provides no analysis
under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). Regardless, our analysis of
overbreadth claims is the same under article I, section 5 and the First Amendment. State v.
Immelt, 173 Wn.2d 1, 6, 267 P.3d 305 (2011).


                                                 7
No. 49760-3-II


balance, courts have “ ‘vigorously enforced the requirement that a statute’s overbreadth be

substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate

sweep.’ ” Immelt, 173 Wn.2d at 11 (quoting United States v. Williams, 553 U.S. 285, 292, 128

S. Ct. 1830, 170 L. Ed. 2d 650 (2008)).

       A statute is not unconstitutionally overbroad simply because it is possible to conceive of

some impermissible applications. Homan, 191 Wn. App. at 767. There must be a realistic

danger that the statute will significantly compromise protected First Amendment speech. Id.

Therefore, we must identify whether the law legitimately prohibits certain speech and then weigh

that legitimate prohibition against any illegitimate prohibition of protected speech. Id. at 767-68,

770.

       We review whether a statute is unconstitutionally overbroad de novo. Id. at 766.

Typically, the party challenging the statute bears the burden of proving its unconstitutionality.

Id. at 765. But that burden shifts in the context of a First Amendment challenge. Id. The State

bears the burden of showing that a statute that restricts speech is not unconstitutional. Id. at 765-

66; see Immelt, 173 Wn.2d at 6.

       When a defendant argues that a statute is facially overbroad on First Amendment

grounds, as Brush does here, we do not address the specific facts of the case – i.e., whether the

defendant’s actual speech was protected. Homan, 191 Wn. App. at 765. The defendant may

attack an overbroad statute even if his or her actual conduct or speech could lawfully be

prohibited. See Immelt, 173 Wn.2d at 7. Instead, we identify whether the law improperly

infringes on protected speech in general. Homan, 191 Wn. App. at 765.3



3
  The parties do not address whether a defendant can make a facial challenge to a sentencing
aggravator statute. Therefore, we do not consider this issue and assume that a facial challenge is
allowed here.


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No. 49760-3-II


       2.    Overbreadth Analysis

       This court in Homan utilized a four-part analysis to assist in the balancing we must

undertake to determine whether a statute is facially overbroad under the First Amendment. Id. at

767-71. We apply the same analysis to determine whether punishment of “an ongoing pattern of

psychological . . . abuse” under RCW 9.94A.535(3)(h)(1) is overbroad.

             a.   Allows Enhanced Punishment for Speech

       First, we must determine whether RCW 9.94A.535(3)(h)(1) actually allows enhanced

punishment4 for speech. Homan, 191 Wn. App. at 767. A First Amendment violation can occur

only if a statute places some burden on speech. Immelt, 173 Wn.2d at 7.

       Because “psychological abuse” is undefined, we can refer to a dictionary. State v.

Reeves, 184 Wn. App. 154, 159, 336 P.3d 105 (2014). The definition of “psychological” is

“relating to, characteristic of, directed toward, influencing, arising in, or acting through the

mind.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1833 (2002). The definition of

“mind” includes a person’s mental disposition, thoughts, and feelings. Id. at 1436. The relevant

definitions of “abuse” are “to attack or injure with words” and “to use or treat so as to injure,

hurt, or damage.” Id. at 8. Based on these definitions, psychological abuse includes attacking or

injuring a person’s mental and emotional condition.

       Under these definitions, speech and expressive conduct can constitute psychological

abuse. Words alone can affect a person’s mental and emotional condition. Therefore, RCW




4
  An overbreadth challenge typically involves a statute that prohibits speech. See Homan, 191
Wn. App. at 767. But because RCW 9.94A.535(3)(h)(i) is a sentencing aggravator rather than a
statute that proscribes criminal conduct, we must analyze whether that statute allows enhanced
punishment of speech.



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No. 49760-3-II


9.94A.535(3)(h)(i) potentially allows enhanced punishment for a defendant’s speech (with

certain specified limitations discussed below).

            b.    Legitimately Allows Enhanced Punishment for Speech

       Second, we must determine whether RCW 9.94A.535(3)(h)(i) legitimately allows

enhanced punishment for conduct or unprotected speech. Homan, 191 Wn. App. at 767-68.

Certain speech does not receive First Amendment protection. Id. A law that prohibits

unprotected speech does not violate the First Amendment. Homan, 191 Wn. App. at 767-68.

Here, the domestic violence/ongoing pattern of psychological abuse aggravator could

legitimately allow enhanced punishment for conduct and certain types of unprotected speech.

       Initially, it is clear that nonverbal conduct can constitute psychological abuse and that the

statute’s enhanced punishment for psychological abuse caused by such conduct does not

implicate the First Amendment. Courts previously have used RCW 9.94A.535(3)(h)(i) to

legitimately impose enhanced punishment for a wide range of conduct that does not receive any

First Amendment protection. E.g., State v. Atkinson, 113 Wn. App. 661, 671-72, 54 P.3d 702

(2002) (applying aggravator when defendant, among other things, tore off victim’s clothing and

locked her outside).

       Regarding speech or expressive conduct, at least three types of unprotected speech could

fall within the scope of RCW 9.94A.535(3)(h)(i): (1) “true threats” – statements that could

reasonably be foreseen to be interpreted as a serious expression of intent to inflict bodily harm,

State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013); (2) “libelous speech, fighting words,

incitement to riot, obscenity, [or] child pornography,” State v. Kilburn, 151 Wn.2d 36, 43, 84

P.3d 1215 (2004); and (3) “speech made with the intent to facilitate criminal conduct” or




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No. 49760-3-II


“ ‘speech integral to criminal conduct.’ ” Homan, 191 Wn. App. at 768 (quoting United States v.

Stevens, 559 U.S. 460, 468, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010)).

       A defendant could inflict psychological abuse through each one of these types of speech

that the First Amendment does not protect. Therefore, RCW 9.94A.535(3)(h)(i) legitimately

allows enhanced punishment for certain types of speech.

            c.   Applies to Constitutionally Protected Speech

       Third, we must determine whether RCW 9.94A.535(3)(h)(i) applies to constitutionally

protected speech. Homan, 191 Wn. App. at 769. Here, several types of protected speech

conceivably could result in psychological abuse.

       The First Amendment protects the expression of political beliefs, see McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 346, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995), as well as the

expression of opinions more generally. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-21,

110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990). A person’s repeated expression of political beliefs or

opinions that another person finds offensive could constitute psychological abuse.

       The First Amendment also generally protects verbal criticism of another person. See City

of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (stating that “the

First Amendment protects a significant amount of verbal criticism and challenge directed at

police officers” and concluding that speech that is provocative and challenging is still protected).

Criticism of another person that is hurtful could constitute psychological abuse.

       The First Amendment protects communications that are “ ‘merely jokes, idle talk, or

hyperbole.’ ” Homan, 191 Wn. App. at 770 (quoting State v. Schaler, 169 Wn.2d 274, 283, 236

P.3d 858 (2010)). A defendant’s jokes or mocking comments that humiliates or embarrasses

another person could constitute psychological abuse.




                                                 11
No. 49760-3-II


        Finally, the First Amendment protects comments that could be viewed as offensive that

are not “true threats” or “fighting words.” See State v. Johnston, 156 Wn.2d 355, 362-63, 127

P.3d 707 (2006). Under certain circumstances, the protection might apply even if the statements

could be characterized as abusive. See City of Seattle v. Huff, 111 Wn.2d 923, 925-26, 767 P.2d

572 (1989) (holding that telephone calls threatening physical injury or property damage “with

the intent to harass, intimidate, torment, or embarrass” was protected speech). Threats that do

not rise to the level of true threats, or vulgar insults that are not fighting words, could constitute

psychological abuse.

             d.   Applies to a Substantial Amount of Protected Speech

        Fourth, we must determine whether RCW 9.94A.535(3)(h)(i) applies to a substantial

amount of protected speech, either in an absolute sense or in relation to the legitimate

applications of the statute. Homan, 191 Wn. App. at 767. We must weigh the amount of

conduct and unprotected speech that the statute legitimately penalizes against the amount of

protected speech that also would be penalized. See id.

        As stated above, RCW 9.94A.535(3)(h)(i) legitimately allows enhanced punishment for a

wide range of conduct, such as the stalking-type behavior here, as well as unprotected speech.

The statute also could allow enhanced punishment for constitutionally protected speech.

        However, it is significant that RCW 9.94A.535(3)(h)(i) does not broadly allow enhanced

punishment for all speech that causes some level of psychological impact. The statute contains

four significant conditions that limit its application to protected speech.

        (1) RCW 9.94A.535(3)(h)(i) does not involve the verbal infliction of psychological

abuse in the absence of some associated criminal conduct. The statute applies only after the

defendant has committed an offense that involves domestic violence or stalking, which generally




                                                  12
No. 49760-3-II


involves conduct rather than speech. The psychological abuse must be “part of” that criminal

conduct. RCW 9.94A.535(3)(h)(i).

           (2) The statute does not apply to isolated incidents of verbal psychological abuse. The

defendant must engage in an “ongoing pattern” of abuse “manifested by multiple incidents.”

RCW 9.94A.535(3)(h)(i).

           (3) The statute does not apply to verbal psychological abuse that is short in duration.

The pattern of psychological abuse must occur “over a prolonged period of time.” RCW

9.94A.535(3)(h)(i). For example, two weeks is not legally sufficient to be a prolonged period of

time. See Brush, 183 Wn.2d at 558.

           (4) The statute does not apply to verbal statements that cause only minimal

psychological impact on the victim. The defendant’s behavior must rise to the level of “abuse.”

RCW 9.94A.535(3)(h)(i). Abuse suggests some level of actual psychological harm. See

WEBSTER’S at 8 (defining abuse to include “[T]o attack or injure with words”); BLACK’S LAW

DICTIONARY 12 (10th ed. 2014) (defining abuse to include treatment often resulting in emotional

injury).

           Even with these limitations, RCW 9.94A.535(3)(h)(i) could penalize protected speech

that is part of criminal conduct, involves an ongoing pattern manifested by multiple incidents,

occurs over a prolonged period of time, and rises to the level of abuse. But the scope of the

statute is so limited that we cannot say that this aggravator penalizes a substantial amount of

protected speech.

           RCW 9.94A.535(3)(h)(i) legitimately penalizes a wide range of conduct and unprotected

speech. Any impact on protected speech would not be substantial. Accordingly, we hold that




                                                   13
No. 49760-3-II


the domestic violence/ongoing pattern of psychological abuse aggravating factor in RCW

9.94A.535(3)(h)(i) is not unconstitutionally overbroad.5

C.     VAGUENESS CHALLENGE TO PSYCHOLOGICAL ABUSE AGGRAVATOR

       Brush argues that the domestic violence/ongoing pattern of psychological abuse

aggravator set forth in RCW 9.94A.535(3)(h)(i) is unconstitutionally vague because it provides

no meaningful definition of “psychological abuse.” We apply State v. Baldwin, 150 Wn.2d 448,

461, 78 P.3d 1005 (2003), and hold that this sentencing aggravator is not subject to a vagueness

challenge.

       1.    Legal Background

       The due process clauses of the Fifth and Fourteenth Amendments prohibit penal statutes

that are excessively vague. Beckles v. United States, ___ U.S. ___, 137 S. Ct. 886, 892, 197 L.

Ed. 2d 145 (2017); State v. Murray, 190 Wn.2d 727, 736, 416 P.3d 1225 (2018). A vagueness

challenge implicates two due process concerns:

       First, criminal statutes must be specific enough that citizens have fair notice of what
       conduct is proscribed. Second, laws must provide ascertainable standards of guilt
       to protect against arbitrary arrest and prosecution. Both prongs of the vagueness
       doctrine focus on laws that prohibit or require conduct.

Baldwin, 150 Wn.2d at 458 (citations omitted). In applying this rule, we ask whether a person of

reasonable understanding must guess at the statute’s meaning. Murray, 190 Wn.2d at 736.

       The prohibition against vagueness applies both to statutes defining elements of crimes

and to “statutes fixing sentences.” Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551,

2557, 192 L. Ed. 2d 569 (2015). As stated above, statutes that define criminal offenses must be




5
 Brush argues that we could impose a limiting construction on the psychological abuse
aggravator to render it constitutional. Because we hold that the statute is not overbroad, we do
not address this issue.


                                                 14
No. 49760-3-II


adequately definite to allow ordinary people to understand what conduct is prohibited and to

discourage arbitrary enforcement. Beckles, 137 S. Ct. at 892. Statutes that fix sentences must

“specify the range of available sentences” with sufficient clarity. Id.

         2.   Baldwin Rule

         In Baldwin, our Supreme Court considered a vagueness challenge to two provisions of

the Sentencing Reform Act (SRA). 150 Wn.2d at 457. The first was former RCW 9.94A.120(2)

(2000), which provided for a standard range sentence unless the sentencing court found

substantial and compelling reasons to justify an exceptional sentence.6 Baldwin, 150 Wn.2d at

458-59. The second was former RCW 9.94A.390(2)(d) (2000), which stated that one

aggravating circumstance that could justify an exceptional sentence was whether the offense was

a major economic offense.7 Baldwin, 150 Wn.2d at 459.

         The court noted that sentencing guideline statutes “do not define conduct nor do they

allow for arbitrary arrest and criminal prosecution.” Id. Specifically, the court stated that

“[s]entencing guidelines do not inform the public of the penalties attached to criminal conduct

nor do they vary the statutory maximum and minimum penalties assigned to illegal conduct by

the legislature.” Id. Therefore, the court concluded that “the due process considerations that

underlie the void-for-vagueness doctrine have no application in the context of sentencing

guidelines.” Id.




6
    The relevant language of former RCW 9.94A.120(2) is now provided in RCW 9.94A.535.
7
 Former RCW 9.94A.390(2)(d) subsequently was recodified as RCW 9.94A.535(3)(d). See
LAWS OF 2001, ch. 10, § 6.


                                                 15
No. 49760-3-II


       Regarding the specific sentencing statutes at issue, the court stated that both statutes

allowed the trial court to exercise discretion in fashioning a sentence. Id. at 460. The court

concluded:

       The guidelines are intended only to structure discretionary decisions affecting
       sentences; they do not specify that a particular sentence must be imposed. Since
       nothing in these guideline statutes requires a certain outcome, the statutes create no
       constitutionally protectable liberty interest.

Id. at 461. Under Baldwin, a defendant is precluded from challenging the sentencing aggravators

in RCW 9.94A.535(3) on vagueness grounds. State v. Chanthabouly, 164 Wn. App. 104, 141-

42, 262 P.3d 144 (2011).

       3.    Applying Baldwin After Blakely

       Brush argues that Baldwin no is no longer valid after the United States Supreme Court’s

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

changes to the SRA based on Blakely. The State argues that Baldwin remains good law.8

       At the time of Baldwin and before Blakely, the SRA provided judges with the authority to

impose a sentence outside the standard range based on the judge’s own finding that there were

“substantial and compelling reasons justifying an exceptional sentence.” Former RCW

9.94A.120(2) (2000); see State v. Gore, 143 Wn.2d 288, 315, 21 P.3d 262 (2001), overruled by

State v. Hughes, 154 Wn.2d 118, 131,110 P.3d 192 (2005). The judge was required only to

provide written findings and conclusions, former RCW 9.94A.120(3), and to base the

exceptional sentence on factors not used in computing a standard range sentence. Gore, 143

Wn.2d at 315. Therefore, the SRA allowed the judge “to impose an exceptional sentence . . .




8
 In Murray, the Supreme Court recently declined to address this issue, and assumed without
deciding that a defendant can challenge the aggravators listed in RCW 9.94A.535 on vagueness
grounds because the aggravator at issue was not vague. 190 Wn.2d at 732 n.1.


                                                16
No. 49760-3-II


without the factual determinations being charged, submitted to a jury, or proved beyond a

reasonable doubt.” Id. at 314.

       The Court in Blakely held that this scheme was unconstitutional under the Sixth

Amendment. 542 U.S. at 303-05. The Court held that a trial court’s sentencing authority must

be limited to the maximum sentence the court could impose without making any additional

findings. Id. at 303-04. Under the SRA, such a sentence would be the maximum within the

standard range rather than the statutory maximum for the particular crime. See id. To be

consistent with the Sixth Amendment, Blakely requires any fact that increases the penalty beyond

the standard range to be found by a jury beyond a reasonable doubt. Id. at 301.

       To comply with Blakely, the legislature amended certain SRA provisions. LAWS OF 2005,

ch. 68. Former RCW 9.94A.120(2), recodified as RCW 9.94A.535, still allows a trial court to

impose an exceptional sentence based on a finding of substantial and compelling reasons. But

facts supporting aggravated sentences must now be determined under RCW 9.94A.537. RCW

9.94A.537(3) states that the facts supporting the aggravating circumstances in RCW

9.94A.535(3) must be proved to a jury, or to the court if a jury is waived, beyond a reasonable

doubt, or by the defendant’s stipulation.

       Brush claims that under Blakely and RCW 9.9A.537(3), the sentencing guidelines –

including aggravators like RCW 9.94A.535(3)(h)(i) – do “inform the public of the penalties

attached to criminal conduct” and do “vary the statutory maximum . . . penalties assigned to

illegal conduct by the legislature.” Baldwin, 150 Wn.2d at 459). Brush emphasizes that the SRA

now limits the discretion that trial courts had at the time Baldwin was decided, and now requires

a trial court to impose a standard range sentence unless the State proves beyond a reasonable




                                               17
No. 49760-3-II


doubt one of the aggravating factors listed in RCW 9.94A.535(3). As a result, he claims that

sentencing guidelines now do set penalties.

       Brush’s analysis is unpersuasive. He assumes that RCW 9.94A.535(3) should be treated

as a statute that fixes the sentence for a crime. He cites Johnson, 135 S. Ct. at 2557, for the

proposition that the vagueness doctrine applies to the list of aggravating factors in RCW

9.94A.535(3). Johnson addressed a statute that, when applicable, required sentencing courts to

increase a defendant’s sentence from a 10-year maximum to a 15-year minimum with a

maximum of life. 135 S. Ct. at 2555. Johnson stated the rule that “statutes fixing sentences” are

subject to a vagueness challenge. Id. at 2556-57.

       However, the aggravating factors in RCW 9.94A.535(3) do not fix sentences or the

ranges of sentences for any crime and do not vary any statutory minimum or maximum sentence.

Under the SRA, the defendant’s maximum sentence is based on the separate provisions that

define the type of offense. The provisions relevant here are RCW 9A.32.030(2), which

establishes the crime of first degree murder and states that it is a class A felony; and RCW

9A.20.021(1)(a), which provides that the maximum sentence for a class A felony is life

imprisonment. Those statutes are subject to a vagueness challenge because they establish the

maximum sentence for first degree murder. See United States v. Batchelder, 442 U.S. 114, 123,

99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979) (“[V]ague sentencing provisions may post constitutional

questions if they do not state with sufficient clarity the consequences of violating a given

criminal statute.”). But RCW 9.94A.535(3) simply identifies the factors that may allow a trial

court to impose an exceptional sentence above the standard range, not to exceed the statutory

maximum, without identifying a particular sentence or sentence range. Therefore, Johnson is

inapplicable here.




                                                 18
No. 49760-3-II


       Brush also argues that because the post-Blakely amendments to RCW 9.94A.535 and the

enactment of RCW 9.94A.537 now place substantive limits on the trial court’s ability to impose

an exceptional sentence, he has a protected liberty interest in a standard range sentence subject to

the vagueness doctrine. Brush is correct that after Blakely, any fact supporting an aggravated

sentence under RCW 9.94A.535(3) must be proven to a jury beyond a reasonable doubt. See

Blakely, 542 U.S. at 301-03. But Blakely and the SRA amendments did not impact the trial

court’s sentencing authority once an aggravating factor is properly found. As the court noted in

Baldwin, these statutes “do not specify that a particular sentence must be imposed” or “require[]

a certain outcome.” 150 Wn.2d at 461. RCW 9.94A.535 still provides the trial court with

discretionary authority to impose or not to impose an exceptional sentence even when the jury

finds an aggravating factor.

       Here, RCW 9.94A.535(3)(h)(i) did not limit the trial court’s sentencing discretion or

require the trial court to impose a standard range sentence when the jury found that the

psychological abuse aggravator applied. The statute does not address what sentence the trial

court must impose. Instead, RCW 9.94A.535(3)(h)(i) simply provides that when the jury

determines beyond a reasonable doubt that the psychological abuse aggravating factor applied,

the trial court can impose an exceptional sentence within the statutory maximum.

       Because RCW 9.94A.535(3)(h)(i) did not fix the sentence for Brush’s conviction and did

not specify that a particular sentence had to be imposed, the analysis in Baldwin of the vagueness

challenge to the former version of RCW 9.94A.535(3)(d) applies equally to Brush’s vagueness

challenge to RCW 9.94A.535(3)(h)(i). The requirement under Blakely and current sentencing

statutes that the applicability of any aggravator must be determined by a jury does not change the

analysis.




                                                19
No. 49760-3-II


       This conclusion is consistent with the United States Supreme Court’s decision in Beckles,

137 S. Ct. 886, which although not directly on point provides a useful comparison. The Court

addressed a vagueness challenge to advisory federal sentencing guidelines that were not binding

on trial courts but provided a framework for the exercise of the court’s discretion. Id. at 890,

894. The Court concluded that the guidelines were not subject to a vagueness challenge. Id. at

895. The Court distinguished Johnson because unlike the sentence-fixing statute at issue there,

the guidelines did not fix the permissible range of sentences that a trial court must impose. Id. at

892. Instead, they “merely guide[d] the exercise of a court’s discretion in choosing an

appropriate sentence within the statutory range.” Id.

       Similarly, under the SRA a trial court has discretion in deciding whether to impose an

exceptional sentence and in determining the length of the sentence when a trier of fact properly

finds that an aggravator applies. The trial court’s sentencing discretion is limited only by the

statutory maximum.

       Division Three of this court recently addressed this issue in State v. DeVore, 2 Wn. App.

2d 651, 413 P.3d 58 (2018). The defendant challenged a statutory aggravating factor on

vagueness grounds and argued that Baldwin was invalid after Blakely. DeVore, 2 Wn. App. 2d at

660-61. The court concluded that Blakely was not relevant. Instead, the court analogized its

case to Beckles. DeVore, 2 Wn. App. 2d at 664-65. As in Beckles, the court in DeVore held that

RCW 9.94A.535(3)’s aggravating factors are not subject to a vagueness challenge because they

do not specify the sentence that must be imposed nor limit the trial court’s discretion during

sentencing. Id. at 664-65.




                                                 20
No. 49760-3-II


       We hold that Baldwin remains good law. Accordingly, we apply Baldwin and hold that

Brush cannot assert a vagueness challenge to RCW 9.94A.535(3)(h)(i).9

D.     APPLICATION OF RCW 9.94A.535(3)(h)(i)

       Brush argues that even if RCW 9.94A.535(3)(h)(i) is constitutional, the trial court erred

in applying the domestic violence/ongoing pattern of psychological abuse aggravator. He claims

that the 2009 incidents involving Bonney did not occur over a prolonged period of time as

required by the statutory language.10 We disagree.

       Brush’s psychological abuse occurred over nearly seven weeks between July 25 and

September 11 of 2009. Brush argues that, as matter of law, seven weeks cannot qualify as a

“prolonged period of time.”

       In general, whether a particular pattern of abuse occurred over a prolonged period of time

is a question for the trier of fact. Brush, 183 Wn.2d at 558. However, whether a particular time

period is insufficient as a matter of law to qualify as a prolonged period of time is a question of

law that we review de novo. State v. Epefanio, 156 Wn. App. 378, 391, 234 P.3d 253 (2010).

       The court in State v. Barnett held that two weeks is not a prolonged period of time. 104

Wn. App. 191, 203, 16 P.3d 74 (2001). However, in Brush the Supreme Court held that it was




9
  Even if Brush could make a vagueness challenge to RCW 9.94A.535(3)(h)(i), that provision is
not vague. The term “psychological abuse” is sufficiently definite both to allow ordinary people
to understand what is proscribed and to prevent arbitrary enforcement. See State v. Bahl, 164
Wn.2d 739, 752-54, 193 P.3d 678 (2008) (reviewing vagueness standard).
10
  Brush also argues that the June 2008 incident in which he changed the locks on his Oregon
house and locked out Bonney and Elizabeth did not constitute psychological abuse and could not
be used to show abuse over a prolonged period of time. As discussed below, we hold that
Brush’s psychological abuse occurred over a prolonged period of time even without considering
the 2008 incident. And there is no indication that the trial court’s conclusion that the abuse
occurred over a prolonged period of time was dependent on the June 2008 incident being
characterized as psychological abuse.


                                                 21
No. 49760-3-II


error to instruct the jury that “prolonged period of time” meant more than two weeks. 183

Wn.2d at 557-58.

       In Epefanio, the court held that abuse occurring over a period between five or six weeks

was sufficient to satisfy the prolonged period of time requirement. 156 Wn. App. at 391-92.

The court concluded, “At some point, the courts could and may conclude, as a matter of law, that

a given time frame is not ‘prolonged’; we will not do so here.” Id. at 392.

       Brush does not present any argument for why Epefanio does not apply here, and there is

no reason for us to reach a different result. Applying the aggravator in this case is consistent

with the rationale in Epefanio: that the effect of any one act of abuse “is more devastating when

the victim has been routinely subjected to similar acts.” State v. Duvall, 86 Wn. App. 871, 877,

940 P.2d 671 (1997). The record demonstrates that effect. Testimony showed that Brush

consistently and repeatedly followed and threatened Bonney, with multiple people stating that

she became fearful, scared, and terrified. And the courts that have rejected applying the

aggravator have done so based on much shorter periods. See Barnett, 104 Wn. App. at 203 (two

weeks); State v. Quigg, 72 Wn. App. 828, 841, 866 P.2d 655 (1994) (three days).

       Accordingly, we hold that the trial court did not err in ruling that Brush’s ongoing pattern

of psychological abuse occurred over a prolonged period of time.

E.     CLEARLY EXCESSIVE SENTENCE

       Brush argues that his 1,000 month sentence is clearly excessive. We disagree.

       The trial court has discretion to determine the appropriate length of an exceptional

sentence when substantial and compelling reasons are present. State v. Knutz, 161 Wn. App.

395, 410, 253 P.3d 437 (2011). Therefore, when a defendant argues that an exceptional sentence

is clearly excessive, we review the sentence under an abuse of discretion standard. Id. We have




                                                 22
No. 49760-3-II


“considerable latitude” in assessing whether a sentence is clearly excessive. State v. Halsey, 140

Wn. App. 313, 325, 165 P.3d 409 (2007).

       A sentence is clearly excessive if (1) it is “clearly unreasonable,” i.e. was based on

untenable grounds or untenable reasons; or (2) it was based on proper reasons, but its length, in

light of the record, shocks the conscience. Knutz, 161 Wn. App. at 410-11; Halsey, 140 Wn.

App. at 324. A sentence “shocks the conscience” if no reasonable person would have adopted it.

Knutz, 161 Wn. App. at 411.

       In murder cases factually similar to this one, courts have rejected challenges to

exceptional sentences substantially greater than the standard range. See State v. Ritchie, 126

Wn.2d 388, 399, 894 P.2d 1308 (1995) (upholding 900 month exceptional sentence despite 320

month standard maximum); State v. Burkins, 94 Wn. App. 677, 697, 702, 973 P.2d 15 (1999)

(upholding 720 month sentence despite 333 month standard maximum); State v. Drummer, 54

Wn. App. 751, 759-60, 775 P.2d 981 (1989) (upholding 660 month sentence despite 450 month

standard maximum); State v. Harmon, 50 Wn. App. 755, 757, 762, 750 P.2d 664 (1988)

(upholding 648 month sentence despite 333 month standard maximum).

       Here, the trial court imposed a 1,000 month sentence plus the 60 month firearm

enhancement. This sentence was 680 months and more than 2.5 times greater than the top of

Brush’s standard range sentence, 380 months. The trial court based its sentence on two

aggravating factors: deliberate cruelty and a pattern of abuse. Although the sentence is

substantial both in absolute terms and relative to Brush’s standard range sentence, it is not so

lengthy that it shocks the conscience. Brush inflicted psychological abuse on Bonney, and the

court found that he acted with deliberate cruelty by repeatedly shooting her at close range with a




                                                 23
No. 49760-3-II


shotgun. In light of these aggravating factors, the trial court did not abuse its discretion in

imposing Brush’s sentence.

        Accordingly, we hold that Brush’s sentence is not clearly excessive.

F.      APPELLATE COSTS

        Brush requests that we refrain from awarding appellate costs. He points out that the trial

court found him to be indigent in an order allowing him to seek review at public expense.

However, the State suggests that Brush recently received a substantial tax reimbursement and

had funds available at the time of his incarceration.

        A commissioner of this court will determine whether costs should be awarded under RAP

14.2 if the State submits a cost bill and if Brush objects to that cost bill.

                                           CONCLUSION

        We affirm Brush’s sentence.



                                                        MAXA, C.J.


 We concur:



 LEE, J.



 MELNICK, J.




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