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September 18, 2004 - The Spokesman-Review (WA)

Court Can't Fix Sentencing Law

As A Result, Crooks Won't Get Years Added To Terms

By John Craig, Staff writer

Two Spokane County Superior Court judges ruled in high-profile criminal cases Friday that they can't fix an unconstitutional law that used to allow above-standard sentences.

As a result, the man who fractured 89-year-old Belle Ensminger's skull while snatching her purse in February will get less than half the prison term of his accomplice, who didn't touch Ensminger.

Gilbert A. Hicks, 25, faces a standard sentence ­ based on his criminal history ­ of approximately 31/2 to 41/2 years. That is less than half the 10 years co-defendant, 33-year-old Michael G. Baldwin, got last month under different circumstances.

Another decision Friday means, barring action by the state Supreme Court or the Legislature, there can be no extra punishment for Spokane day-care operator Danette Zaring if she is convicted of first-degree child assault.

Authorities say Zaring, 36, nearly killed a baby girl in her care by angrily throwing the infant into a playpen.

In the Hicks and Zaring cases, Judges Robert Austin and Sam Cozza added their voices to a discordant effort to deal with a landmark U.S. Supreme Court decision in June. The court ruled that defendants are entitled to have juries determine any facts used to justify above-standard sentences.

Earlier in Spokane County, Judge Jerome Leveque allowed charges to be amended to include aggravating factors in a child-kidnapping case. The case is pending.

Judge Neal Rielly recently took the opposite view in a first-degree murder case in which 21-year-old Nathan W.L. Giorgianni allegedly stabbed a woman in various parts of her body, including her eyes.

Deputy Prosecutor Larry Steinmetz said he now hopes to win an extra-tough sentence by charging Giorgianni under Washington's aggravated-murder statute. The aggravated-murder statute provides penalties of life without parole or death without the need for a separate determination on aggravating factors.

The U.S. Supreme Court stuck down only a portion of Washington's Sentencing Reform Act, which established standard penalty ranges for felonies other than aggravated murder. The invalid section allowed judges to impose above-standard sentences if they found aggravating factors.

Sentencing procedures in Washington and at least eight other states and the federal courts apparently were undercut by the decision in the case of Grant County, Wash., defendant Howard Ralph Blakely Jr. The Supreme Court said Blakely was entitled to have a jury, and not just a judge, decide whether aggravating factors justified his extra-tough sentence.

Austin had planned to deal with the Blakely ruling by calling back the jury that convicted Hicks Wednesday of first-degree robbery, drug possession and car theft. The jury was to hear testimony from doctors and police officers Friday and decide whether Hicks was deliberately cruel or targeted a particularly vulnerable victim.

Instead, Austin sent the jury home and said he would give Hicks a standard-range sentence on Thursday.

Under the Blakely ruling, defendants may waive their right to have juries decide aggravating factors. Hicks' accomplice, Baldwin, chose a nonjury trial, leaving Judge Kathleen O'Connor free to impose an extra-tough sentence.

Although both men were responsible for the crime, it was Hicks who actually snatched Belle Ensminger's purse, causing her to fall onto pavement. Ensminger suffered a skull fracture and permanent brain damage.

The 5-foot-2, 125-pound victim was defenseless not only because of her age and size, but because she was legally blind, Steinmetz said.

Austin said he changed his mind while doing research on the instructions he would have given Hicks' jury Friday. After talking to other judges, Austin said he discovered questions he couldn't answer without crossing the line between judges and legislators.

For example, if the jury found three aggravating factors, would Austin have discretion to reject one of them?

Later Friday morning, defense attorney Carl Oreskovich had other questions for Judge Cozza to grapple with in Zaring's case.

Oreskovich objected to Deputy Prosecutor Patrick's Johnson's attempt to amend the charges against Zaring to require a jury to decide aggravating factors if it convicts her.

If the issue is resolved by amending the charges, what if a defendant wants to seek a lower-than-standard sentence, Oreskovich asked. "Is that something that's going to have to be charged by the prosecutor?"

And who is to decide whether aggravating factors satisfy the law's "substantial and compelling" standard, Oreskovich continued. The jury or the judge?

Johnson argued that the jury could properly decide whether there was an abuse of trust or an especially vulnerable victim. He cited a now-obsolete 1903 law that gave extra prison time to "habitual offenders."

The Legislature amended the law in 1909 to allow judges to determine who was a habitual offender without help from a jury. But the state Supreme Court ruled in 1940 that the decision had to be left to juries.

The law was supplanted in 1984 by the current Sentencing Reform Act. Instead, courts established their own procedures and presented habitual offender cases to juries for 43 years.

Cozza agreed with Oreskovich that extensive changes would be necessary to salvage aggravating-factors sentencing.

"This clearly would be rewriting the statute, and the courts are not here to legislate," Cozza said.

Courts around the state have been "all over the place" on the issue, but those in larger counties now mostly are rejecting a judicial fix, Cozza said.

A uniform judicial fix could be imposed by the state Supreme Court, which plans to hear three test cases from Western Washington on Nov. 9. The Legislature is expected to rewrite the law next year, but the Supreme Court ruling would govern cases until a revised law is available.

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