749647MAJ
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                    Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       74964-7
Title of Case:       State of Washington v. Arturo R. Recuenco
File Date:           04/14/2005
Oral Argument Date:  11/09/2004


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court,
            County
            Honorable Linda Lau


                                    JUSTICES
                                    --------
Authored by Mary Fairhurst
Concurring: Faith Ireland
            Barbara A. Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Gerry L Alexander
            Richard B. Sanders
            Susan Owens
            Tom Chambers


                                COUNSEL OF RECORD
                                -----------------
Counsel for Petitioner(s)
            Rita Joan Griffith
            Attorney at Law
            1305 NE 45th St Ste 205
            Seattle, WA  98105-4523

            Gregory Charles Link
            Washington Appellate Project
            1511 3rd Ave Ste 701
            Seattle, WA  98101-3635

Counsel for Respondent(s)
            James Morrissey Whisman
            King County Prosecutor's Office
            516 3rd Ave Ste W554
            Seattle, WA  98104-2362

Amicus Curiae on behalf of WASHINGTON ASS'N OF CRIMINAL DEFENSE LAWYERS
            James Elliot Lobsenz
            Carney Badley Spellman
            700 5th Ave Ste 5800
            Seattle, WA  98104-5017


IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             ) No. 74964-7
                                                 )
               Respondent,                       ) ) EN
BANC
v.                                               )
                                                 )
ARTURO R. RECUENCO,                              ) FILED April 14, 2005
                                                 )
               Petitioner.                       )
                                                 )

     FAIRHURST, J. - Arturo Recuenco was charged with second degree assault
with a deadly weapon enhancement because he assaulted his wife while
holding a gun.  At trial, the jury returned a guilty verdict on the assault
charge and a special verdict that Recuenco was armed with a deadly weapon.
But the trial court imposed a sentence enhancement based on Recuenco's
being armed with a firearm, which was greater than that for a deadly
weapon.  This court granted review to consider whether imposition of a
firearm enhancement without a jury finding that Recuenco was armed with a
firearm beyond a reasonable doubt violated Recuenco's Sixth Amendment right
to a jury trial as defined by Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny.  As per our reasoning
in State v. Hughes, No. 74147-6 (Wash. April  14, 2005), we hold that the
trial court's imposition of the firearm enhancement violated Recuenco's
Sixth Amendment right to a jury trial.  We reverse the Court of Appeals,
vacate Recuenco's sentence, and remand for resentencing based on the one-
year deadly weapon enhancement supported by the jury's special verdict.
I.   FACTUAL AND PROCEDURAL HISTORY
Based on allegations that Recuenco became upset with his wife for not
cooking for his relatives, smashed their stove, and threatened her with a
gun, the King County prosecutor charged Recuenco with second degree
assault, interfering with domestic violence reporting, and third degree
malicious mischief.  The information further charged Recuenco with 'being
armed with a deadly weapon, to-wit: a handgun, under the authority of RCW
9.94A.125 and 9.94A.310.'1  Clerk's Papers (CP) at 159.
The trial court submitted the following special verdict form to the jury:
'Was the defendant ARTURO R. RECUENCO armed with a deadly weapon at the
time of the commission of the crime of Assault in the Second Degree?'  CP
at 237.  Defense counsel did not object to that special verdict form; in
fact, he proposed an identical one.  And the prosecutor never requested use
of a special verdict form regarding the presence of a firearm.  To the
contrary, when defense counsel argued that the definition of firearm should
have been submitted to the jury to explain the deadly weapon definition,
the prosecutor explicitly stated, '{t}he method under which the state is
alleging and the jury found the assaults committed was by use of a deadly
weapon.'  11 Verbatim Report of Proceedings (RP) at 909.  The prosecutor
further stated, 'in the crime charged and the enhancement the state
alleged, there is no elements {sic} of a firearm.  The element is assault
with a deadly weapon.'  11 RP at 910.
The jury convicted Recuenco of second degree assault, interfering with
domestic violence reporting, and third degree malicious mischief.  The jury
also returned a special verdict that Recuenco had been armed with a deadly
weapon.  The jury was not asked to, and therefore did not, return a special
verdict that Recuenco committed the assault while armed with a firearm.
The standard range sentence for count I, the assault, was three to nine
months.  The deadly weapon enhancement would have added one mandatory year,
while a firearm enhancement would have added three mandatory years.  RCW
9.94A.533(3)(b), (4)(b).
At the sentencing hearing, the prosecutor requested the low end of the
standard range sentence for count I: 3 months, with a 36-month enhancement
for use of a firearm.  The prosecutor further requested that the court
suspend time on the other two counts.  Defense counsel agreed with a base
sentence at the low end of the standard range for count I, but refuted the
proposed 36-month enhancement, arguing that the prosecutor would have had
to allege and prove that Recuenco was armed with a firearm, and that the
jury would have had to return a firearm special verdict.  The court imposed
a 39-month sentence for the assault conviction, including 36 months for
being armed with a firearm, reasoning that it had 'no discretion but to
impose the statutorily mandated term with regard to the deadly weapon
enhancement.'  11 RP at 928.  The court further imposed 1 year and 90 days
for counts II and III but suspended those sentences.
Recuenco appealed his conviction and sentence arguing, among other things,
that he was deprived of due process because a firearm enhancement was
imposed without notice, proof beyond a reasonable doubt, and a jury
finding.  In an unpublished opinion, the Court of Appeals found against
Recuenco on each issue and held that even if the failure of the jury's
finding a firearm deprived Recuenco of his right to a jury trial as defined
by Apprendi (which it assumed without deciding), any error was harmless.
See State v. Recuenco, noted at 117 Wn. App. 1079, 2003 WL 21738927, at *5.
Recuenco petitioned this court for discretionary review.  The United States
Supreme Court subsequently decided Blakely v. Washington,   U.S.  , 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004), which Recuenco submitted as additional
authority.  We granted review as to the Apprendi/Blakely issues only.
State v. Recuenco, 152 Wn.2d 1001, 101 P.3d 865 (2004).
II.  ISSUES
1.   Did the trial court's firearm sentence enhancement violate Recuenco's
Sixth Amendment right as defined by Apprendi and Blakely when the jury only
explicitly found facts supporting a deadly weapon enhancement?

2.   If so, was the error invited?

3.   If there was error and it was uninvited, can it be deemed harmless?

III. ANALYSIS
In Apprendi, the Supreme Court held that '{o}ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.'  530 U.S. at 490.   This court subsequently
interpreted that decision to hold that statutory maximum meant the absolute
maximum sentence provided by the legislature for an offense, not the
maximum sentence allowed by the jury's findings.  State v. Gore, 143 Wn.2d
288, 313-15, 21 P.3d 262 (2001) (citing Apprendi, 530 U.S. at 481; McMillan
v. Pennsylvania, 477 U.S. 79, 92, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986)).
The United States Supreme Court corrected our interpretation recently in
Blakely by holding that the statutory maximum referenced in Apprendi 'is
the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.'  Blakely, 124
S. Ct. at 2537 (citing Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428,
153 L. Ed. 2d 556 (2002)).  We considered Blakely's implications on our
sentencing enhancement provisions for the first time in State v. Hughes.
In Hughes we concluded that (1) Blakely did not invalidate our exceptional
sentence provisions, (2) Blakely violations may never be deemed harmless,
and (3) in the absence of legislative direction, cases reversed for Blakely
violations will be remanded for resentencing based on only the original
jury verdict.  We apply that reasoning here and consider additionally
whether Recuenco invited the asserted Blakely violation.
A.   Did Imposition of the Firearm Enhancement Violate Recuenco's Sixth
Amendment Jury Trial Right as Defined by Blakely?

The jury did not explicitly find beyond a reasonable doubt that Recuenco
committed assault with a firearm; it found only the use of a deadly weapon.
Without an explicit firearm finding by the jury, the court's imposition of
a firearm sentence enhancement violated Recuenco's jury trial right as
defined by Apprendi and Blakely--Recuenco's sentence was greater than that
allowed solely based on the facts found by the jury.2  The State concedes
the existence of a Blakely Sixth Amendment violation, stating that its
previous argument that the judge's imposition of the firearm enhancement
was not subject to Apprendi was 'no longer tenable' following Blakely and
that Recuenco was 'entitled' to a jury finding that 'he was armed with a
firearm.'  Resp't's Supp. Br. at 7-8, 10-11.  But the State argues the
violation does not require vacation of his sentence because (1) Recuenco
invited the error by proposing the special verdict form he now challenges
and (2) the error was harmless.
B.   Did Recuenco Invite the Blakely Error?
The Court of Appeals opinion stated in a footnote that it 'appeared' that
Recuenco had invited the error at issue because he had proposed the special
verdict form the court used asking the jury only to find the existence of a
deadly weapon, not specifically a firearm.  Recuenco, 2003 WL 21738927, at
*5 n.33 (citing City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273
(2002) and stating that if 'defendants propose erroneous instructions that
do not include all elements of a crime, but do not attempt to add a
remedial instruction, they invite the error and cannot complain on
appeal.').  The State adopts the Court of Appeals' reasoning in its
argument asserting that Recuenco cannot now challenge the special verdict
form because he proposed it.
The invited error doctrine prevents parties from benefiting from an error
they caused at trial regardless of whether it was done intentionally or
unintentionally.  See Patu, 147 Wn.2d at 720.  The doctrine has been
applied to errors of constitutional magnitude, including where an offense
element was omitted from the 'to convict instruction.'  Id. (citing State
v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999); State v. Henderson, 114
Wn.2d 867, 869, 792 P.2d 514 (1990)).
Both the Court of Appeals and the State misinterpret the alleged error
here.  Recuenco did not and does not assert that the special verdict form
asking the jury to find the presence of a deadly weapon was error.  Indeed,
he proposed that instruction because he believed and continues to believe
that it was the correct instruction for the charge of second degree assault
with a deadly weapon enhancement.  Instead, Recuenco claims that the
judge's imposition of the firearm enhancement without the jury's finding
the existence of a firearm was an error violating his due process and jury
trial rights.  Moreover, he objected to that error at trial.  The error
asserted was not invited.
C.   Can the Error be Deemed Harmless?
In Hughes, this court considered the applicability of harmless error
analysis to Blakely Sixth Amendment violations and held that such
violations can never be deemed harmless because to do so would be to
speculate on the absence of jury findings.  See Hughes, No. 74147-6, slip
op. at 25-32.  Given this decision, we reverse the Court of Appeals and
hold that the violation was not harmless.
IV.  CONCLUSION
     The imposition of a firearm enhancement that was not supported by the
jury's special verdict violated Recuenco's Sixth Amendment jury trial right
as defined by Apprendi and Blakely.  That error was neither invited nor
harmless.3  We reverse the Court of Appeals and vacate Recuenco's sentence.
Because we held in Hughes that we would not imply a procedure by which a
jury can find sentencing enhancements on remand, we remand for resentencing
based solely on the deadly weapon enhancement which is supported by the
jury's special verdict.  See Hughes, No. 74147-6, slip op. at 33-37.

WE CONCUR:

1 These provisions have been recodified as RCW 9.94A.602 and RCW 9.94A.533
respectively.  For simplicity, the current versions are used in this
analysis.
2  Cases that allowed judges to impose firearm enhancements where juries
found only the presence of deadly weapons are no longer good law in light
of Blakely.  See, e.g., State v. Meggyesy, 90 Wn. App. 693, 958 P.2d 319,
review denied, 136 Wn.2d 1028, 972 P.2d 465 (1998); State v. Rai, 97 Wn.
App. 307, 983 P.2d 712 (1999); State v. Olney, 97 Wn. App. 913, 987 P.2d
662 (1999).
3   Given our decision, we do not address additional arguments Recuenco
makes in support of vacation of his sentence.
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