The State of Washington, Petitioner, v. Larry Alan Hayes, Respondent, 182 Wash. 2d 556

Johnson, J. ¶1 This case involves whether a trial court may impose an exceptional sentence on a defendant under the major economic offense sentence aggravators found in RCW 9.94A.535(3)(d)(

i) and (iii) when that defendant’s conviction was based on accomplice liability. We agree with the conclusion of the Court of Appeals that the trial court improperly applied the sentence aggravators to Larry Hayes. We affirm. Facts and Procedural History ¶2 The State charged Larry Hayes with one count of leading organized crime and one count of identity theft in the first degree, among several other charges.

The State alleged that Hayes was involved in a complex identity theft scheme that used stolen credit card information, including information stolen from a hair salon’s customer receipts, to manufacture false identification devices and credit cards. These in turn would be used to make purchases and rent vehicles, usually from out of state, with those rental vehicles sold for cash.

The State also alleged that each count (except for a drug charge) was subject to the sentence aggravators for being a major economic offense. ¶3 On the first degree identity theft charge at issue in this case, the jury was instructed that to convict, it must find “[t]hat on or about [the] period ..., the defendant, or an accomplice, knowingly obtained, possessed, or transferred a means of identification or financial information” of the victim. Resp’t’s Suppl. Clerk’s Papers at 146 (emphasis added).

The trial court also instructed the jury that to find the count was a major economic offense, 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. These are two of the statutory sentence aggravators for a major economic offense.

The trial judge explained that these two factors were alternatives: the jury should answer yes on the special verdict form if all jurors found at least one alternative had been proved beyond a reasonable doubt. Resp’t’s Suppl. Clerk’s Papers at 177. The special verdict forms themselves asked the jury, “Was the crime a major economic offense or series of offenses?” Appellant’s Clerk’s Papers at 25. The jury found Hayes guilty of all substantive offenses. The jury also entered a special verdict for each conviction, stating that it found the offense to be a major economic offense.

The trial court imposed an exceptional sentence on the leading organized crime conviction. ¶4 Hayes appealed his conviction for leading organized crime. State v. Hayes, 164 Wn. App. 459, 262 P.3d 538 (2011) (Hayes I). The Court of Appeals reversed that conviction, thereby vacating the exceptional sentence. On remand for resentencing on the remaining 11 convictions, the State sought an exceptional sentence on the count of identity theft in the first degree, which the trial court imposed on the basis of the jury’s special verdict. Hayes appealed again.

The Court of Appeals vacated the exceptional sentence and held that an exceptional sentence, specifically the sentence aggravators for a major economic offense, could not be imposed on a defendant convicted under accomplice liability, reasoning that absent express language, those factors could not be applied to accomplices. State v. Hayes, 177 Wn. App. 801, 312 P.3d 784 (2013) (Hayes II). The State was granted review. State v. Hayes, 180 Wn.2d 1008, 325 P.3d 913 (2014). Standard of Review ¶5 This case rests on the

interpretation of RCW 9.94A.535(3)(d). Statutory

interpretation is a question of law, which we review de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). This statute permits a judge to impose an exceptional sentence if the jury finds that the current offense was a major economic offense, which in turn is determined by consideration of any of four statutory factors. Two of those factors are at issue here: the offense involved multiple victims or multiple incidents per victim, or the offense involved a high degree of sophistication and occurred over a lengthy period of time. RCW 9.94A.535(3)(d)(i), (iii).

Analysis ¶6 Washington’s criminal code has undergone substantial modification over the past 40 years. In 1975, the legislature undertook an extensive overhaul, adopting many provisions of the American Law Institute’s Model Penal Code (Proposed Official Draft 1962). In doing so, the legislature amended the complicity statute.

The previous statute, former RCW 9.01.030 (1909), provided that “[e]very person concerned in the commission of a felony ... is a principal, and shall be proceeded against and punished as such.” (Emphasis added.) Punishment was coextensive with liability under the former statute: an accomplice could receive the same sentence as a principal. The current complicity statute, RCW 9A.08.020(3), enacted in 1975, while retaining liability for the substantive offense, no longer contains the “and punished as such” language.

By removing this language, the legislature indicated that punishment for accomplices was no longer coextensive with liability and that individual sentencing decisions would rest within the discretion of the sentencing judge. ¶7 The legislature continued to move toward establishing more specific and individualized punishments for offenders. After overhauling the criminal code, the legislature passed the Sentencing Reform Act of 1981 (SRA),

chapter 9.94A RCW. The SRA was meant to bring proportionality and uniformity to what had been a highly discretionary sentencing scheme. See State v. Barnes, 117 Wn.2d 701, 710, 818 P.2d 1088 (1991). Its purpose was to “[e]nsure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history” and that such punishment be “commensurate with the punishment imposed on others committing similar offenses.” RCW 9.94A.010(1), (3).

By its extensive and detailed guidelines (standard sentencing ranges), the SRA required sentencing judges to impose individualized punishment within a range on the basis of the seriousness of the offense and the offender’s criminal history. ¶8 Under the SRA as originally enacted, a judge could find facts to impose an exceptional sentence, that is, one outside the standard sentencing range, if there were “substantial and compelling reasons justifying” such a sentence. RCW 9.94A.535.

In making this decision, sentencing judges considered the circumstances of each defendant and their individual degrees of involvement. The SRA was revised in response to 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). Now, unless stipulated by a defendant, the facts supporting an exceptional sentence (other than a prior conviction) must be found by a jury beyond a reasonable doubt. RCW 9.94A.537(3).

As was done in this case, the jury indicates that it has found facts supporting an aggravating factor by entering a special verdict. ¶9 In this case, Hayes was convicted as an accomplice. The State alleged at trial that two factors for the major economic offense aggravator applied to all but one of the charges: first, that “[t]he current offense involved multiple victims or multiple incidents per victim.” RCW 9.94A-.535(3)(d)(i), and second, that “[t]he current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time.” RCW 9.94A-.535(3)(d)(iii).

The court instructed the jury that if it found either of these two factors were present, it should answer yes to the special verdict’s question “[w]as the crime a major economic offense or series of offenses?” Appellant’s Clerk’s Papers at 25. The jury entered a special verdict in the affirmative for each conviction. On the basis of these special verdicts, the trial judge imposed an exceptional sentence on the leading organized crime conviction. That conviction was overturned on appeal. On remand, the State sought an exceptional sentence on all remaining convictions.

However, the sentencing judge ruled that only the first degree identity theft conviction warranted the exceptional sentence for being a major economic offense. It is in this context that we analyze the validity of Hayes’s exceptional sentence. ¶10 The Court of Appeals, in reaching its conclusion, reasoned that since the legislature did not expressly include language making the major economic offense aggravators applicable to accomplices, the sentencing judge had no authority to impose an exceptional sentence on Hayes. Hayes II, 177 Wn. App. at 806.

The State argues, however, that our case law permits imposing an exceptional sentence on accomplices even in the absence of express language. While we agree with the State’s characterization of our cases, we nevertheless agree with the Court of Appeals’ resolution of this case. Ill When reviewing a sentence aggravator or enhancement, in the absence of express triggering language, we look to the defendant’s own misconduct to satisfy the operative language of the statute.

Because the legislature has removed the “and punished as such” language from the current complicity statute, and because the SRA requires punishment that is tailored to individual culpability, a sentencing judge can impose an exceptional sentence on an accomplice only where the accomplice’s own conduct informs the aggravating factor. Otherwise, failure to analyze the aggravator in relation to the accomplice’s own conduct would be tantamount to automatically making accomplice liability for the substantive offense and punishment for the offense coextensive. ¶12 As we acknowledged in State v.

McKim, 98 Wn.2d 111, 653 P.2d 1040 (1982), the legislature disapproved of this “automatic” approach when it amended the complicity statute. In McKim, we were asked whether the former deadly weapon statute, which increased punishment for an “accused [who] was armed with a deadly weapon,” could be applied to an accomplice who was not personally armed but whose codefendant was. Former RCW 9.95.015 (1961). We started our analysis by looking for guidance from what we characterized as a “triggering device” present in the operative language of the statute. McKim, 98 Wn.2d at 116.

Because the statute lacked such language, we held that “any sentence enhancement must depend on the accused’s own misconduct.” McKim, 98 Wn.2d at 117. ¶13 We went on to conclude that the deadly weapon enhancement could apply to an unarmed accomplice, reasoning that the accomplice could be constructively armed with a deadly weapon if his codefendant were armed. This in turn required a finding that the accomplice had knowledge that his codefendant was armed.

However, the jury in that case was instructed that “ ‘if one of the two participants is armed with a . . . deadly weapon, then both are considered to be so armed.’ ” McKim, 98 Wn.2d at 118 (alteration in original) (quoting trial court record). We vacated the enhancement because there was no finding regarding the defendant’s knowledge that the codefendant was armed.

Without such a finding of knowledge, we reasoned that the jury instruction “amounts to a conclusive presumption that petitioner knew his codefendant was armed at the time of the offense.” McKim, 98 Wn.2d at 119. ¶14 McKim’s focus on the defendant’s own conduct remains the foundation of the analysis where there is no express language imposing an enhanced' sentence on an accomplice. For example, in State v. Pineda-Pineda, 154 Wn.

App. 653, 226 P.3d 164 (2010), the Court of Appeals was asked whether the “drug free zone” sentence enhancement, which increases punishment for any person who commits a drug sale occurring within 1,000 feet of a school bus stop, could apply where the accomplice was not physically present in the school zone. We reserved answering this question when discussing the same enhancement in State v. Silva-Baltazar, 125 Wn.2d 472, 474, 886 P.2d 138 (1994).

Applying the reasoning from McKim, the Court of Appeals vacated a “drug free zone” sentence enhancement because there was no evidence in the record that the accomplice himself was present in the school zone.

In other words, the defendant’s own conduct (namely, his absence from the school zone) did not support imposing a sentence enhancement, which is premised on physical presence in the school zone, absent a more specific finding that the defendant had knowledge the crime would occur within the zone. ¶15 The State argues that when the language of an aggravating factor is focused on “the current offense,” as the factors at issue here are, then that factor applies to an accomplice and “should not be assessed on an individualized basis, but apply equally to all participants in a crime regardless of whether they are a minor or major participant.” Suppl.

Br. of Pet’r at 17. In essence, the State asks us to revert back to the 1909 complicity statute and its coextensive “punished as such” provision, depending on nothing more than subtle nuances in the phrasing of certain factors. But as noted above, our case law is quite clear that the legislature, both by amending the complicity statute in 1975 and enacting the SRA in 1981, has abolished an approach that imposes automatic and coextensive punishment on accomplices unless it expressly indicates otherwise in the text of the statute.

And under the State’s view, so long as “the current offense” constitutes a major economic offense, every accomplice qualifies for an exceptional sentence, leaving the decision to impose an exceptional sentence to the sentencing judge. The State reasons that because they are not compelled to impose an exceptional sentence, sentencing judges, in exercising their discretion, will “sort out” the less culpable defendants when choosing the appropriate sentence. But such an overbroad

interpretation of these sentence aggravators would undermine the aims of the SRA, which seeks to funnel judicial discretion and to establish consistency and uniformity in sentencing. ¶16 We hold that for aggravating factors that are phrased in relation to “the current offense” to apply to an accomplice, the jury must find that the defendant had some knowledge that informs that factor.

Because factors phrased in this way potentially permit imposing an exceptional sentence more broadly than would be consistent with the SRA, this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence.

In this case, the jury’s special verdict should have asked whether Hayes had knowledge that informs the factors on which they were instructed: for example, whether Hayes knew that the offense would have multiple victims or multiple incidents per victim, or whether Hayes knew that the offense involved a high degree of sophistication or planning or would occur over a lengthy period of time. ¶17 We cannot tell from the jury’s special verdict if it found that Hayes had any knowledge that informs the aggravating factors for a major economic offense, such as whether he knew the offense would involve multiple vie-tims or would involve a high degree of sophistication.

The jury was instructed on two factors phrased in relation to “the current offense,” not in relation to “the defendant.” In essence, the aggravating factors and special verdict form asked the jury about the nature of the offense, not about Hayes’s role in it. It is this critical question that the jury’s special verdict does not answer. Without a finding of knowledge that indicates that the jury found the aggravating factors on the basis of Hayes’s own conduct, they cannot apply to Hayes.

Because we cannot determine from the jury findings whether the exceptional sentence was based improperly on automatic liability for the offense, we vacate his exceptional sentence. Conclusion ¶18 Because we cannot tell from the jury’s special verdict whether it found that Hayes had knowledge that informs the aggravating factors on which it was instructed, we affirm the Court of Appeals’ decision vacating his sentence and remand for resentencing. Owens, Fairhurst, Wiggins, and Gordon McCloud, JJ., concur.

Sixteen counts total: one count of leading organized crime, one count of identity theft in the first degree, five counts of identity theft in the second degree, six counts of possession of stolen property, two counts of possession of a stolen vehicle, and one count of possession of methamphetamine. State v. Hayes, 164 Wn. App. 459, 464, 262 P.3d 538 (2011). One count of identity theft in the first degree, five counts of identity theft in the second degree, and five counts of possession stolen property in the second degree.

Although the instructions permitted the jury to convict Hayes either as principal or accomplice, the State does not argue that sufficient evidence exists to find that Hayes was convicted as a principal.

Therefore, we analyze the issue as if Hayes was convicted as an accomplice. “[T]he court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at the time of the commission of the crime.” ECW 69.50.435.