State of Washington v. Howard Lackey

S
                                                                        FILED
                                                                     MARCH 4, 2021
                                                              In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )        No. 37337-1-III
                    Respondent,              )
                                             )
      v.                                     )
                                             )
HOWARD LACKEY,                               )        UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      STAAB, J. — Howard Lackey pleaded guilty to manslaughter and second degree

unlawful possession of a firearm. At sentencing, the judge imposed the high end of the

standard range for both offenses and ordered consecutive sentences. Mr. Lackey appeals,

arguing that the court did not make adequate findings to support his sentence and did not

have the authority to impose consecutive sentences. The State concedes that the court did

not make adequate findings but argues that the court had the authority to impose

consecutive sentences. We vacate the sentence and remand for resentencing.

                                         FACTS

      Howard Lackey was charged with second degree murder and second degree

unlawful possession of a firearm for the shooting death of Keli Jo Jurdy. Mr. Lackey

eventually pleaded guilty to an amended charge of first degree manslaughter and second
No. 37337-1-III
State v. Lackey


degree unlawful possession of a firearm. The parties agreed on Mr. Lackey’s criminal

history, offender score calculation, and standard range sentence. With an offender score

of 1, the standard range for the manslaughter charge was 86 to 114 months of

confinement and 3 to 8 months for the firearm charge. The plea agreement allowed the

parties to argue for a sentence within the standard range.

       At sentencing, the State requested a sentence at the high end of the sentencing

range for each charge to run concurrent. Mr. Lackey requested a low-end standard range

sentence. The court concluded that it could and would impose high-end consecutive

sentences, 114 months on the manslaughter and 8 months on the firearm charge, for a

total of 122 months. In support of its sentence, the court noted:

              The Court also considers the impact on the victim, the past
       domestic violence, and the fact that you had past felonies that wash that
       weren’t counted toward your offender score. All of those things indicate
       to the Court that a high end consecutive sentence is appropriate in this
       case.

             So the Court has taken into consideration all of the sentencing
       arguments, all of the victim impact statements, as well as the statements
       on behalf of the defendant.

Report of Proceedings at 66-67.

       Mr. Lackey objected to the consecutive sentences. In response, the court indicated

that the consecutive sentences were supported by the purposes of sentencing outlined in

RCW 9.94A.010. The court did not make written findings to support imposing an

exceptional sentence.


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No. 37337-1-III
State v. Lackey


       The court also imposed a filing fee of $200 even though Mr. Lackey had qualified

for appointed counsel. Other than asking if Mr. Lackey had been previously employed,

there was no discussion of Mr. Lackey’s ability to pay.

                                         ANALYSIS

       Mr. Lackey appeals his sentence, arguing that the court lacked authority to

sentence Mr. Lackey to consecutive sentences and failed to consider Mr. Lackey’s ability

to pay when imposing costs. The State concedes that consecutive sentences under these

circumstances constitute an exceptional sentence and that the court failed to enter

findings to support an exceptional sentence.

       Generally speaking, the Sentencing Reform Act of 1981, ch. 9.94A RCW, requires

concurrent sentences when a person is sentenced to two or more current offenses on the

same day. RCW 9.94A.589(1)(a). “Consecutive sentences may only be imposed under

the exceptional sentence provisions of RCW 9.94A.535.”

Id. RCW 9.94A.535 also

makes it clear that consecutive sentences are exceptional sentences. The imposition of an

exceptional sentence requires the court to “set forth the reasons for its decision in written

findings of fact and conclusions of law.” RCW 9.94A.535.

       In this case, while it is clear that the court considered factors to justify an

exceptional sentence, it did not believe that a consecutive sentence qualified as an

exceptional sentence and did not provide written findings of fact. Written findings are

essential. State v. Friedlund, 

182 Wash. 2d 388

, 

341 P.3d 280

(2015).

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No. 37337-1-III
State v. Lackey


       Mr. Lackey argues that the trial court not only failed to provide written findings to

support its sentence, but the court lacked authority to impose consecutive sentences,

quoting State v. Grenning, 

142 Wash. App. 518

, 544, 

174 P.3d 706

(2008). Br. of

Appellant at 6. Mr. Lackey’s quote from Grenning, includes a citation to In re Pers.

Restraint of VanDelft, 

158 Wash. 2d 731

, 743, 

147 P.3d 573

(2006), for the proposition that

“judicial fact-finding that imposes consecutive sentences under RCW 9.94A.589(1)(a) is

impermissible.” This argument is not well received. VanDelft has been expressly

overruled:

           In VanDelft we applied Apprendi and Blakely to find that the Sixth
           Amendment requires a jury, not a judge, to find facts to support
           consecutive sentences. Ice[1] applied Apprendi and Blakely as well, but
           arrived at the opposite conclusion. Under Ice, a sentencing judge, not a
           jury, may find facts to support consecutive sentences. Ice squarely
           overrules VanDelft. Accordingly, under Ice the trial judge did not err by
           imposing exceptional consecutive sentences for Vance’s crimes.

State v. Vance, 

168 Wash. 2d 754

, 762-63, 

230 P.3d 1055

(2010).

       In this case, the parties disagree on the proper remedy. Mr. Lackey argues that the

proper remedy is to vacate the sentence and remand with instructions to impose a

concurrent sentence. The State asks us to remand without vacating so that the court can

enter findings to support the exceptional sentence. Since the court discussed the factors

that justify imposing an exceptional sentence but did not believe it was imposing an



       1
           Oregon v. Ice, 

555 U.S. 160

, 

129 S. Ct. 711

, 

172 L. Ed. 2d 517

(2009).

                                               4
No. 37337-1-III
State v. Lackey


exceptional sentence, the proper remedy is to vacate the sentence and remand for

resentencing. State v. Rasmussen, 

109 Wash. App. 279

, 286, 

34 P.3d 1235

(2001).

       Mr. Lackey also challenges the imposition of the $200 filing fee as part of his

sentence. Again, the State concedes that the filing fee should not have been imposed

because Mr. Lackey was found indigent.

       Under RCW 36.18.020(2)(h), courts are prohibited from imposing court costs,

including criminal filing fees, on indigent defendants. Courts are required to make an

individualized inquiry into the defendant’s ability to pay before imposing legal financial

obligations. State v. Blazina, 

182 Wash. 2d 827

, 830, 

344 P.3d 680

(2015).

       In this case, the court did not conduct a Blazina inquiry at sentencing, and Mr.

Lackey had previously been found indigent for the purposes of acquiring appointed

counsel. The discretionary costs should not have been imposed.

       Vacate the sentence and remand for resentencing.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

                                             _________________________________
                                                     Staab, J.
WE CONCUR:


_________________________________            _________________________________
      Fearing, J.                                    Siddoway, A.C.J.

                                             5

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