:OURT OF APPEALS Di\ STATE OF V/A3H1HGTO: 2013 NOV 12 AH 9=00

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. ARTHUR EUGENE BUZZELLE, Appellant. DIVISION ONE No. 69102-3-1 UNPUBLISHED OPINION
FILED: November 12, 2013 Dwyer, J. — Arthur Buzzelle appeals from the exceptional sentence imposed upon him for one count ofrape of a child inthe first degree and one count of child molestation inthe third degree. Buzzelle contends that the trial court's sentencing determination should be reversed and the cause remanded for 

### sentencing within the standard range. This is so, Buzzelleasserts, because the trial court should have found facts supporting the aggravating circumstances in the same proceeding in which itfound facts supporting his guilty plea. 

### Additionally, Buzzelle avers that the Supreme Court's holding in State v. Siers, 174 Wn.2d 269, 274 P.3d 358 (2012), is contrary to the constitution and, 

### accordingly, the State was required to arraign him on the amended information 

### alleging the aggravating circumstances. Because this court has no authority toNo. 69102-3-1/2 overrule decisions made by the Supreme Court and because the trial court did not err in the procedures utilized in imposing the exceptional sentence, we affirm.
I On January 13, 2012, the State charged Buzzelle withone count of rape of a child in the firstdegree and one count ofchild molestation in the third 

### degree, based on a series of sexual encounters between Buzzelle and his 

### daughterA.M.B.1 On May 25, 2012, the Statemoved for leave toamend the information in order to provide Buzzelle with notice of the State's intent to argue 

### for an exceptional sentence. The motion setforth the following aggravating factors with respect to both counts:

• Deliberate cruelty - RCW 9.94A.535(3)(a);



### • Particularly vulnerable victim

- RCW 9.94A.535(3)(b);



### • Ongoing pattern of sexual abuse - RCW 9.94A.535(3)(g);

• Domestic violence

- RCW 9.94A.535(3)(h);



### • High degree ofsophistication

- RCW 9.94A.535(3)(m);

• Abuse of trust
- RCW 9.94A.535(3)(n);



### • Impact on persons other than victim

- RCW 9.94A.535(3)(r). 

### Buzzelle pleaded guilty to both counts on May 29, 2012. At the plea 

### hearing, the Statewithdrew the motion to amend, but indicated thatit still intended to seek an exceptional sentence based on the aggravating factors it had 

### alleged. Defense counsel indicated that Buzzelle agreed "thattheState has

1As A.M.B. is a minor, we refer to her by her initials.
-2-No. 69102-3-1/3 given us notice that they will seek to prove the aggravators and to seek an exceptional sentence based on those at sentencing. . . . [W]e agreed that that is sufficient notice for them to make these arguments at sentencing." The trial court confirmed with Buzzelle his understanding that "the issue ofwhether there are 

### any aggravating circumstances which the Court should take into account in this
case in determining your sentence can be considered at the time of your 

### sentencing," and that Buzzelle retained the right to a juryfor that hearing. The trial court then found that Buzzelle entered his guiltyplea knowingly, intelligently, 

### and voluntarily, and that the plea was supported by a sufficientfactual basis. The trial court set the sentencing hearing for July 5, 2012. 

### Buzzelle waived his right to a juryfor the sentencing hearing. At the 

### hearing, Buzzelle submitted a stipulation offacts with attached documents, 

### including theprobable cause determination, witness statements, and atranscript ofthe Island County Sheriff's Office's interview with A.M.B. Buzzelle contended that he should be considered for a Special Sex OffenderSentencing Alternative 

### (SSOSA). Thetrial court declined to grantthe SSOSA request, basing its decision on the victim's wishes and the seriousness of the circumstances of the
offenses. The trial court then considered whether the stipulated facts supported any 

### ofthe aggravating factors alleged by the State, andfound thatall seven 

### aggravating circumstances were present in this case and that anexceptional sentence wasjustified. Thetrial court alsoruled that any one oftheaggravatingNo. 69102-3-1/4
circumstances would sufficiently support the exceptional sentence. Thereupon, the trial court sentenced Buzzelle to a minimum of 240 months of confinement. Buzzelle appeals.
II Buzzelle first contends that the trial court erred by finding facts supporting the aggravating factors at a proceeding that took place after the guilty plea was entered. This is so, he contends, because RCW 9.94A.537(4) mandates that facts must be found for the underlying crime and for the aggravating factors in the same proceeding. We disagree. 

### Buzzelledoes not assign error to any of the findings of fact or conclusions 

### oflaw entered by the trial court. Rather, Buzzelle contends that the trial court utilized an improper procedure in determining that an exceptional sentence was warranted. "Resolution of this issue
. . . requires interpretation of a section in 

### Washington's Sentencing Reform Act of1981, chapter9.94A RCW, pertaining to aggravating circumstances thatraise a sentenceabove the standard range. Statutory interpretation is a legal question, which we . . . review de novo on appeal." Siers, 174 Wn.2d at 274. 

### Washington's Sentencing Reform Act governs the requirements for exceptional sentences. According to RCW 9.94A.537(3): 

### The facts supporting aggravating circumstances shall be proved to 

### ajury beyond a reasonabledoubt. Thejury's verdict on the aggravating factor must be unanimous, and by special 

### interrogatory. Ifajury iswaived, proofshall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.No. 69102-3-1/5 Washington enacted this statute to comply withthe holding of Apprendi v. New Jersey. 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that "[ojtherthan the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." See Laws of 2005, ch. 68, § 1 ("The 

### legislature intends to conform the sentencing reform act, chapter 9.94ARCW, to 

### comply with the ruling in Blakelv v. Washington
. . . .").2 Buzzelle contends that RCW 9.94A.537(4) mandates that the trial court 

### find facts supporting aggravating circumstances at the same proceeding in which itfinds facts supporting a guilty plea. RCW 9.94A.537(4) reads: Evidence regarding any facts supporting aggravating circumstances under RCW 9.94A.535(3)(a) through (y) shall be 

### presented to thejury during the trial ofthe alleged crime, unless the jury has been impaneled solely for resentencing, or unless the state alleges the aggravating circumstances listed in RCW 9.94A.535(3)(e)(iv), (h)(i), (o), or (t). Ifone ofthese aggravating circumstances is alleged, the trial court may conduct a separate 

### proceeding ifthe evidence supporting the aggravating fact is not part ofthe res geste ofthe charged crime, ifthe evidence is not otherwise admissible in trial ofthe charged crime, and ifthe court 

### finds that the probative value ofthe evidence to the aggravated fact is substantially outweighed by itsprejudicial effect on the jury's ability to determineguilt or innocencefor the underlying crime. 

### RCW 9.94A.537(4), by its plain language, expressly contemplates ajury trial as a 

### predicate toits application: "Evidence regarding any facts supporting aggravating circumstances under RCW9.94A.535(3)(a) through (y) shall be presented to the 

### juryduring the trial ofthe alleged crime." RCW 9.94A.537(4) (emphasis added).
2In Blakelv v. Washington. 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 403 

### (2004), the United States Supreme Court held thatWashington's statutory sentencing procedure violated the Sixth Amendment rights articulated in Apprendi.No. 69102-3-1/6 Moreover, RCW 9.94A.537(4) must be read in conjunction with RCW 9.94A.537(3). State v. Pillatos. 159 Wn.2d 459, 477, 150 P.3d 1130 (2007) (statues must be read as a whole). RCW 9.94A.537(3) provides for a jury trial as the default sentencing procedure, but allows for the waiver of this procedural 

### right.3 In State v. Pillatos, the Supreme Court held that RCW 9.94A.537 "provides specific procedures fortrying aggravators tojuries" not that an 

### allegation ofaggravating circumstances precluded the defendantfrom pleading 

### guilty. 159Wn.2d at 478 (emphasis added). The court noted that "[njothing in that language [RCW 9.94A.535(3)] restricts sentencing-juries to guilt-phase 

### juries." Pillatos, 159 Wn.2d at478. Rather, "the act does not limit sentencingjuries to cases where thedefendant pleads not guilty." Pillatos, 159 Wn.2d at 478. Where a defendant pleads guilty, the legislature intends for the trial court to 

## impanel ajuryto determine the existence ofaggravating circumstances.4 Pillatos, 159 Wn.2d at 477. Here, the trial court advised Buzzelle of his right to 

### have ajury determine theexistence ofaggravating circumstances. Buzzelle 

### waived that right atthe sentencing hearing.5 Buzzelle fails to establish any error in this procedure.

3 "The facts supporting aggravating circumstances shall beproved toajury beyond a reasonable doubt.... Ifajury iswaived, proofshall betothe court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts." RCW 9.94A.537(3). 

### 4The legislature overturned partofPillatos by statute; however, this holding was left intact. See Laws of 2007, ch. 205, § 1. "^The righttohave ajury determine the existence ofaggravating circumstances is waivable. Blakelv. 542 U.S. at 310; State v. Dillon. 142Wn. App. 269, 275, 174 P.3d 1201 (2007).No. 69102-3-1/7 Nevertheless, Buzzelle contends that because he did not stipulate that the 

### details ofhis crime constituted aggravating circumstances, Statev. Hagar6 necessitates reversal. We disagree. Inthat case, Hagar pleaded guilty to three counts oftheft inthe first degree and stipulated to "the facts set forth inthe certification for probable cause, the prosecutor's summary, and the facts setforth in an appendix to the agreement." Hagar, 158 Wn.2d at 371-72. The trial court conducted the sentencing hearing and found that Hagar's crimes constituted a 

### "majoreconomic offense," an aggravating circumstance. Hagar, 158 Wn.2d at 372. The Supreme Court overturned Hagar's exceptional sentence because it 

### "was predicated on an unstipulated fact that was notfound by ajury beyond a 

### reasonable doubt," in violation ofBlakelv.7 Hagar. 158Wn.2d at 374. However, Hagarwas sentenced before RCW 9.94A.537 was amended to provide a mechanism forimpaneling a juryto determine the existence of aggravating circumstances. Hagar, 158 Wn.2d at 372. Having been sentenced under the old 

### statutory scheme, Hagarwas neveradvised of hisright to ajury trial for sentencing purposes. Hagar, 158Wn.2d at 373 ("Hagar entered into his plea 

### agreementwith the understanding thatWashington's sentencing schemepermits a trialjudgeto engage in fact finding, and ifthe judgefinds substantial and compelling reasons, he or she may impose an exceptional sentence beyond the standard range."). Accordingly, Hagar is inapposite.

6 158 Wn.2d 369, 144 P.3d 298 (2006). 7Blakelv applied because Hagar's case was ondirect appeal at thetime Blakelv was decided. Hagar. 158 Wn.2d at 373.No. 69102-3-1/8
The trial court did not err when it conducted the sentencing hearing at a 

### proceeding subsequenttothat in which it accepted Buzzelle's guilty plea.8

Buzzelle next contends that the trial court erred by imposing an exceptional sentence because the State did not charge the aggravating factors in the information. This is so, he contends, because the State must charge 

### aggravating factors in the information in order for notice to be constitutionally sufficient. We disagree. 

### This court "reviewfs] allegations ofconstitutional violations de novo." Siers, 174 Wn.2d at 273-74. In order to satisfy the due process protections 

### provided bythe state andfederal constitutions, "the defendant mustreceive notice priorto the proceeding in which the State seeks to prove [aggravating] circumstances to ajury," such that he be allowed "to 'mount an adequate 

### defense' against" those circumstances. Siers, 174Wn.2d at 277 (quoting Statev. Schaffer. 120 Wn.2d 616, 620, 845 P.2d 281 (1993)). Washington has codified this requirement as follows: 

### At anytime priortotrial or entryofthe guilty pleaif substantial rights ofthe defendant are notprejudiced, the state maygive notice that it is seeking a sentence above the standard 

### sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based.

8The parties dispute what theproper remedy isin theevent ofreversal. Given thatwe perceive noerror in thetrial court's actions, we need notreach thisissue.
-8-No. 69102-3-1/9 RCW 9.94A.537(1). Buzzelle contends that in order to satisfy due process, aggravating factors must appear in the information and the defendant must be arraigned on them. Buzzelle's contention has been squarely addressed and rejected by the Washington Supreme Court. [S]o long as a defendant receives constitutionallyadequate notice ofthe essential elements of a charge, "the absence of an allegation 

### of aggravating circumstances in the information [does] not violate 

### [the defendant's] rights under article I, section 22 of the Washington Constitution, the Sixth Amendment to the United States Constitution, or due process." 

### Siers, 174Wn.2d at 276-77 (alterationsin original) (quoting State v. Powell, 167 Wn.2d 672, 687, 223 P.3d 493 (2009)). 

### Here, Buzzelle received noticeprior to pleadingguilty that the State 

### intended to seek an exceptional sentence. The State provided Buzzelle with a 

### list oftheaggravating circumstances thatthe Stateintended toprove. Moreover, Buzzelle acknowledged that he hadreceived notice from the State, and even agreed that the notice was sufficient to satisfy due process. Nevertheless, Buzzelle contends that aggravating factors must appear in 

### the information in orderto satisfy due process, and requests that we rule that the 

### Supreme Court's holding in Siers is unconstitutional underthe Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution. This we decline to do. "This court is not in a position to overturn a 

### decision oftheWashington Supreme Court. If [Supreme Court precedent] isto 

### bechanged, thatcourt must do so. This court lacks thatauthority." Statev.

9-No. 69102-3-1/10 Lawrence, 166 Wn. App. 378, 392-93, 271 P.3d 280 (2012) (citing State v. Gore. 101 Wn.2d481.487, 681 P.2d 227 (1984)). review denied, 174Wn.2d 1009 (2012). A federal circuit court has well expressed why it is that courts of appeal should be loathe to accept an entreaty that a Supreme Court case was wrongly decided: If a court of appeals could disregard a decision ofthe Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions could be circumvented with ease. They would bind onlyjudges too dimwitted to come up with a novel argument. Nat'l Rifle Ass'n of Am.. Inc. v. Citv of Chicago, III.. 567 F.3d 856, 858 (7th Cir. 

### 2009), rev'd on other grounds sub nom, McDonald v. Citv of Chicago, III., 561 U.S. _, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010). 

### Buzzelle received notice, prior to pleading guilty, of the State's intention to seek an exceptional sentence. His due process rights were not violated.
Affirmed.

We concur: 

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