Court halts improvised sentencing

The Washington Supreme Court lit a dim candle Thursday in a room the U.S. Supreme Court darkened last summer when it partially overturned state criminal sentencing law.

Trial courts cannot improvise procedures to impose new above-standard sentences on defendants whose old above-standard sentences were invalidated by the U.S. Supreme Court, according to Washington’s top court.

The ruling apparently means Carl John Schubert, a former special education teacher at Lakeside High School in Suncrest, has been punished as much as he can be for taking indecent liberties with one of his students.

It’s an open question what the ruling says about the pending first-degree murder sentence of Robert L. Doney Jr., who killed a 2-year-old girl to spite her mother.

Thursday’s decision focused on one of three categories of cases: those in which defendants’ above-standard sentences have been overturned on appeal. Schubert falls into that category.

A Pend Oreille County jury convicted Schubert, 60, of taking indecent liberties with one of his students during a camping trip. Doctors said the 20-year-old woman has the mind of a 5- to 7-year-old.

As state law allowed, now-retired Superior Court Judge Larry Kristianson ignored Schubert’s standard sentencing range and imposed the statutory maximum of 10 years in prison. Then the U.S. Supreme Court ruled last June in a Grant County, Wash., case that such sentences were improper.

Defendants have a constitutional right to have a jury decide all facts used to justify exceptional sentences, the Supreme Court said. Until then, Washington judges had been allowed to determine aggravating factors – as Kristianson did.

Visiting Spokane County Superior Court Judge Tari Eitzen heard arguments last week on whether she can give Schubert another above-standard sentence. At the time, several Washington Court of Appeals decisions arguably said she could.

Now Schubert’s attorney, Doug Phelps, believes Eitzen will rule in a telephonic hearing next Friday that she can’t.

Deputy Pend Oreille County Prosecutor Tony Koures agrees.

“It looks like there’s nothing I can do,” Koures said.

Schubert was released last month after serving a month more than his 20-month standard maximum.

Doney’s case falls into another category: those in which defendants have not yet been sentenced.

He is scheduled for sentencing May 13 by Spokane County Superior Court Judge Jerome Leveque.

Leveque last month became the first judge in the county to exercise what the Washington Court of Appeals said was a trial court’s power to patch up the sentencing law. Appellate judges said trial courts have authority to improvise procedures to restore the above-standard punishment the Legislature intended for egregious crimes.

Leveque asked the jury that heard trial testimony in Doney’s case to decide whether he was guilty of four aggravating factors. Some testimony that was inadmissible during the trial was presented in a special post-conviction session.

Doney’s attorney, Tim Trageser, now plans to ask Leveque to reconsider his actions in light of Thursday’s ruling.

Supreme Court justices said the ruling didn’t address the issue of placing “special verdict” questions before trial juries. But, Trageser said, “it seems as though the case is pointing to that.”

He points to the justices’ reliance on one of their earlier decisions that trial judges couldn’t repair an apparent oversight in the state’s death penalty law.

The Legislature failed to spell out procedures for imposing the death penalty if a defendant pleaded guilty, and the Supreme Court said in 1980 that fashioning a remedy would be “clear judicial usurpation.”

Similarly, the court said Thursday that it is one thing to supply inadvertently omitted “details,” quite another to “create from whole cloth a complex and completely novel procedure.”

Whether Leveque supplied “details” or a “completely novel procedure” is a question the state Supreme Court is expected to answer from another group of test cases that were argued last month.

That group includes the second-degree murder charge pending against Spokane resident James C. Metcalf, who is accused of strangling Denise M. McCormick in February 2004 and dumping her body in southern Stevens County.

Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys, agreed with Trageser that Thursday’s decision casts a shadow over cases like Metcalf’s and Doney’s.

“We’re not as optimistic as we were before,” Loginsky said.

But she said prosecutors remain “very hopeful” about the third category of cases in which the state Supreme Court has heard test cases: those in which appeals had been resolved before flaws were found in the sentencing law.

That category includes defendants such as Spokane Valley resident Brad Jackson, who was sentenced to 56 years in prison for murdering his 9-year-old daughter, Valiree, in October 1999.

A wild card – legislation to fix the sentencing law – may soon create a new dilemma for the courts. On Tuesday, the state House joined the Senate in passing legislation that will take effect as soon as minor differences are resolved and Gov. Christine Gregoire signs it.

Attorneys aren’t sure whether the law will apply to all sentencings or just those in which trials have not been completed, Loginsky said.

That could become an issue in the Doney case, Trageser said.