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Washington Banishment Order Vacated

A division of the Washington Court of Appeals vacated a trial court's
banishment order, concluding that the ban "fails strict scrutiny" because
"it is not sufficiently tailored and therefore impermissibly infringes on
[the] right to travel."

David Schimelpfenig was convicted of murdering Marjorie Benner inside her
Hoquiam, Grays Harbor County, Washington home. "As part of its sentence,
the court ordered that, upon release from prison, Schimelpfenig not reside
in Grays Harbor County or have any contact with members of the Benner
family for the remainder of his Life ... because 'there will always be
[Benner] family members here that need not be reminded of' Defendant."

Schimelpfenig appealed the banishment order, arguing that it was
unnecessarily broad. At oral argument the State conceded that the order
should be vacated; the court agreed.

"Because of its constitutional implications, [the court appl[ied] strict
scrutiny in reviewing the banishment order." Based upon the facts of the
case, the court found that "the banishment order fails strict scrutiny." It
noted, however, that it was not implying "that countywide or other types of
jurisdictional prohibitions will always be inappropriate." Rather, "the
propriety of such restrictions must turn on the facts of each case." See:
Washington v. Schimelpfenig, 128 Wash.App. 224, 115 P.3d 338 (Wash.App.
Div. 2, 2005).

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Related legal case

Washington v. Schimelpfenig

State v. Schimelpfenig, 115 P.3d 338, 128 Wash.App. 224 (Wash.App.Div.2 06/29/2005)


[2] No. 31012-1-II

[3] 115 P.3d 338, 128 Wash.App. 224

[4] June 29, 2005


[6] SOURCE OF APPEAL Appeal from Superior Court of Grays Harbor County Docket No: 02-1-00585-6 Judgment or order under review Date filed: 09/29/2003 Judge signing: Hon. David E Foscue.

[7] Counsel OF Record

[8] Counsel for Appellant(s) Suzanne Lee Elliott Attorney at Law Ste 1300 Hoge Bldg 705 2nd Ave Seattle, WA 98104-1741

[9] Counsel for Respondent(s) Gerald R. Fuller Grays Harbor Co Pros Ofc 102 Broadway Ave W Rm 102 Montesano, WA 98563-3621

[10] Harold S. Menefee Grays Harbor Co Pros Ofc 102 Broadway Ave W Rm 102 Montesano, WA 98563-3621

[11] The opinion of the court was delivered by: Quinn-brintnall, C.J.

[12] JUDGES Concurring: Marywave Van Deren J Dean Morgan


[14] David Schimelpfenig appeals a banishment order imposed following his conviction for first degree murder.*fn1 The order prohibits Schimelpfenig from residing in Grays Harbor County for the remainder of his life so as to protect the mental well-being of the murdered victim's family. We vacate the order because it is not sufficiently tailored and therefore impermissibly infringes on Schimelpfenig's right to travel.

[15] FACTS

[16] A jury found Schimelpfenig guilty of the first degree murder of Marjorie Benner. Schimelpfenig murdered Benner inside her Hoquiam, Grays Harbor County, Washington home. Schimelpfenig, who was an acquaintance of Benner's son, had lived two blocks away from Benner and had routinely performed yard work for her. As part of its sentence, the trial court ordered that, upon release from prison, Schimelpfenig not reside in Grays Harbor County or have any contact with members of the Benner family for the remainder of his life. The court imposed these restrictions because 'there will always be {Benner} family members here that need not be reminded of' Schimelpfenig. Report of Proceedings (RP) (Sept. 29, 2003) at 17-18.

[17] Schimelpfenig contends that the court's order banishing him from Grays Harbor County violates his constitutional right to travel. He does not dispute that a court may impose restrictions on his right to travel, but he argues that the ban is unnecessarily broad. At oral argument before this court, the State conceded that the order should be vacated. Under the facts of this case, we agree with Schimelpfenig and accept the State's concession.


[19] An order banishing an individual from a large geographical area is bound to raise both societal and legal concerns. At a minimum, dumping convicts on a city, county, or state neighbor is bound to raise public policy concerns. See McCreary v. State, 582 So. 2d 425, 427-28 (Miss. 1991). Banishment orders conjure memories from 'the script of some old Grade-B cowboy movie where the sheriff tells the bad guy to 'get out of Dodge.' Predick v. O'Connor, 260 Wis. 2d 323, 325, 660 N.W.2d 1 (WiS.Ct. App. 2003). At the most, banishment orders encroach on an individual's constitutional right to travel, which includes the right to travel within a state. Shapiro v. Thompson, 394 U.S. 618, 630-31, 634, 89 S.Ct. 1322, 22 L.Ed. 2d 600 (1969); Eggert v. City of Seattle, 81 Wn.2d 840, 845, 505 P.2d 801 (1973). Because of its constitutional implications, we apply strict scrutiny in reviewing a banishment order. Thompson, 394 U.S. at 634. To survive such review, the order must be narrowly tailored to serve a compelling governmental interest. Thompson, 394 U.S. at 634.

[20] Although the courts of this state have addressed the right to travel in the context of statutes criminalizing certain behavior,*fn2 few cases have addressed geographical restrictions imposed by a court. In Halsted v. Sallee, 31 Wn. App. 193, 639 P.2d 877 (1982), Division Three addressed a restraining order, intended to protect children from their mentally unstable father, which required the father not to travel north of a central Washington town. The court concluded that although Washington had a compelling interest in protecting the children, the ban was not sufficiently tailored because an order enjoining communication or contact could serve the same purpose. Halsted, 31 Wn. App. at 197. And in State v. McBride, 74 Wn. App. 460, 873 P.2d 589 (1994), Division Three upheld a statute permitting a court to ban individuals convicted of drug trafficking from the areas where they had trafficked drugs if such areas had a proven pattern of drug trafficking activity. The court there found it key that the statute had crime prevention and rehabilitative aims. McBride, 74 Wn. App. at 465-67.

[21] Because Washington courts have not routinely addressed the issue presented in this case, a review of cases from other jurisdictions is helpful. In Larson v. State, 572 So. 2d 1368 (Fla. 1991), the trial court banished the defendant from Tallahassee for five years after he moved to that city for the sole purpose of tampering with a witness. The Florida Supreme Court upheld the order because he had not shown a legitimate need to visit Tallahassee and because the banishment order could be amended if such a need arose. Larson, 572 So. 2d at 1371-72.

[22] In People v. Brockelman, 933 P.2d 1315 (Colo. 1997), the Colorado Supreme Court upheld a defendant's two-year banishment from two neighboring cities after the defendant brutally assaulted his girlfriend and violated criminal and civil restraining orders. The court concluded that the banishment was appropriate because the girlfriend lived and worked in the area and the evidence presented at trial raised serious concerns about her continuing safety. Brockelman, 933 P.2d at 1317. In State v. Nienhardt, 196 Wis. 2d 161, 537 N.W.2d 123 (WiS.Ct. App. 1995), the defendant was banned from a city after she had been convicted of repeatedly stalking and harassing an individual who lived in the city. The appellate court upheld the ban, noting that the defendant did not reside in the city or have a reason to visit it and the ban was essentially a protective order for the victim. Nienhardt, 196 Wis. 2d at 168-70. And in another Wisconsin case with similar facts, the court upheld the defendant's banishment from a county after she had stalked and harassed a family for several years, had assaulted certain family members, and had repeatedly violated no-contact orders. Predick, 260 Wis. 2d at 336-37.

[23] But courts have struck down banishment orders. In State v. Franklin, 604 N.W.2d 79, 83-84 (Minn. 2000), the court concluded that an order banishing the defendant from Minneapolis was impermissible because the defendant had substantial ties to the city and the order was not related to his crime of trespassing into a building located on the outskirts of the city. In Johnson v. State, 672 S.W.2d 621, 623 (Tex. App. 1984), the court concluded that a countywide ban for a defendant convicted of unauthorized use of a motor vehicle was inappropriate because it was not sufficiently related to his rehabilitation and would leave him broke and unemployed. In People v. Beach, 147 Cal. App. 3d 612, 620-23, 195 Cal. Rptr. 381 (Cal. Ct. App. 1983), the defendant was convicted of shooting an intruder on her property, and the trial court imposed an order banishing her from the community because she was a 'marked woman.' The appellate court vacated the order because it would have displaced the defendant from her home of 24 years and was more likely to impede rehabilitation than to promote it. And in Edison v. State, 709 P.2d 510 (Alaska Ct. App. 1985), the court struck down a probation condition prohibiting the defendant, who had been convicted of driving a snow machine while intoxicated, from entering a village where he resided and was self-employed as a commercial fisherman. The court found the condition to be unconstitutional because it was not related to the nature of the offense, was unnecessarily severe and restrictive, and did not appear to be reasonably related to the defendant's rehabilitation. Edison, 709 P.2d at 512.

[24] These cases reveal several guiding principles for reviewing banishment orders. To determine whether a specific geographic restriction permissibly infringes on a defendant's right to travel, a sentencing court should consider the following nonexclusive factors: (1) whether the restriction is related to protecting the safety of the victim or witness of the underlying offense; (2) whether the restriction is punitive and unrelated to rehabilitation; (3) whether the restriction is unduly severe and restrictive because the defendant resides or is employed in the area from which he is banished; (4) whether the defendant may petition the court to temporarily lift the restriction if necessary; and (5) whether less restrictive means are available to satisfy the State's compelling interest. See Brockelman, 933 P.2d at 1319. Consideration of such factors ensures that the use of a geographical restriction will always turn on a careful analysis of the facts, circumstances, and total atmosphere of the case. Predick, 260 Wis. 2d at 336.

[25] Here, the sentencing court stated that its reason for banning Schimelpfenig for life from residing in Grays Harbor County was to prevent Benner's relatives from being reminded of him. We contrast this understandable purpose*fn3 with one aimed at preventing an individual from becoming the victim of threatened crime, which has been found to be a compelling state interest. Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed. 2d 207 (1984). It is this protective interest that may also make banishment appropriate when the defendant represents a continuing threat to his victim or witnesses even after release. See State v. Lee, 135 Wn.2d 369, 389-92, 957 P.2d 741 (1998) (upholding anti-stalking law against right-to-travel claim). But we need not decide whether the interest advanced by the order is compelling, for even if it is, the order is not narrowly tailored to serve that interest.

[26] Schimelpfenig will likely remain in prison for more than 20 years and will not be released until he is in his 60s.*fn4 There is no evidence in the record that Schimelpfenig ever posed a threat to Benner's family or that he has desired continued contact with them when he is released. There also is no evidence that the Benner family frequents so much of the 1,917 square miles of Grays Harbor County as to justify a countywide ban. Moreover, the record suggests that Schimelpfenig has some form of mental disability and, as a result of this disability, he has lived with his family in Grays Harbor County for his entire life. Banning him for life from residing in the county is therefore likely to heavily burden his family and be counterproductive to rehabilitation. Under these facts, the banishment order fails strict scrutiny.

[27] In so ruling, we do not imply that countywide or other types of jurisdictional prohibitions will always be inappropriate. Relying on the well-defined boundaries of a county or city fosters the uniform enforcement of such a restriction. But the propriety of such restrictions must turn on the facts of each case. The facts of this case suggest that a more narrowly-tailored restriction would satisfactorily protect the Benner family from being reminded of their loss. We emphasize that the trial court could, and did, continue to prohibit Schimelpfenig from having contact with the Benner family and require him to stay a specified distance away from their homes or workplaces. But because the sentencing court's order forbidding Schimelpfenig from residing in Grays Harbor County is too broad for its stated purpose, we vacate it.

[28] A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

[29] Having analyzed the trial court's banishment order, we now address Schimelpfenig's challenges to his conviction and exceptional sentence. Schimelpfenig contends that his conviction must be reversed because (1) the police conducted searches of his mother's home without advising her of her right to refuse consent; (2) statements he made to the police were inadmissible as he had invoked his right to remain silent; and (3) there was insufficient evidence to find that he acted with premeditated intent to kill Benner. Schimelpfenig also contends that his exceptional sentence must be vacated because it was based on judicial fact-finding which therefore violated his right to a jury trial as set forth in Blakely v. Washington, U.S., 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). In order to address these claims, a recitation of additional facts is necessary.


[31] On the evening of November 26, 2002, Benner's body was found in the upstairs bedroom of her Hoquiam home. She was found nude and lying on her stomach with a nylon stocking wrapped around her neck. The post-mortem examination revealed that Benner had died from asphyxia caused by ligature strangulation. The examination did not reveal any evidence of a sexual assault, but bruises and cuts were found on Benner's face and arms. The uncontroverted evidence established that Benner was 72 years old at the time of her death.

[32] Strewn on Benner's bedroom bed and floor were underwear and nylon stockings that had been removed from a dresser drawer. But for the drawer, the house was undisturbed. Several shoeprints and fingerprints were found surrounding Benner's body and in an adjacent bathroom. The police discovered that a backdoor window had been broken. The police also found underwear and nylon stockings taken from Benner's drawer in a field behind her home.

[33] As part of the murder investigation, police learned that the 40-year-old Schimelpfenig lived with his mother two blocks away from Benner and had routinely done yard work for her. Schimelpfenig had also become a person of interest because his next-door neighbor had found empty nylon stocking containers in her trashcan. These containers matched those found in Benner's home.

[34] Hoquiam police briefly interviewed Schimelpfenig at his home on November 30, 2002. At the interview, Schimelpfenig told the police that he had not been at Benner's home on the day of the murder but that he had been there the day before.

[35] Hoquiam police decided to again interview Schimelpfenig at his home on December 4. Schimelpfenig's mother met Officers Sidney Strong and David Cox at the door to her home. The officers told her that they would like to speak with her because they were doing a routine neighborhood canvas investigating Benner's death. Schimelpfenig's mother opened the door and motioned for the officers to come inside. She then asked the officers to take a seat in the living room while she retrieved her son. When Schimelpfenig came into the room, he and his mother were interviewed separately.

[36] Schimelpfenig told Officer Strong during the interview that on the day before the murder, he had been in Benner's kitchen to chat with her. Schimelpfenig maintained that he had only been in the kitchen and had not gone upstairs. Officer Strong then asked Schimelpfenig if he would be willing to submit fingerprints and prints of his shoes for 'elimination purposes.' RP (July 18, 2003) at 19. Officer Strong explained that they were taking prints of everyone who had admitted being inside Benner's house. Schimelpfenig agreed and provided the prints using a kit the officers had brought with them.

[37] These prints were immediately taken to and reviewed by a state forensic scientist, who opined that the shoe prints appeared to match those found in Benner's bedroom and bathroom. The forensic scientist told the officers, however, that he could not offer a definitive conclusion without actually having the shoes. Based on this information, Officer Strong obtained a search warrant to seize Schimelpfenig's shoes.

[38] On December 6, Officers Strong and Cox returned to Schimelpfenig's home where they were again met by Schimelpfenig's mother. The officers told her that they needed to talk to Schimelpfenig again but did not disclose that they had obtained a search warrant. Schimelpfenig's mother invited them in and, when Schimelpfenig arrived, the officers asked him if they could borrow his shoes because the prints they had taken were unexaminable. Schimelpfenig hesitated at first, stating that he did not have another pair of shoes, but when the officers offered to buy him a new pair, he agreed and gave up the shoes.*fn5 The officers then left.

[39] After the forensic scientist concluded that the shoes matched the prints in the upstairs of Benner's home, Hoquiam police arrested Schimelpfenig on December 9. Schimelpfenig was transported to the local police station, where Officer Strong interviewed him. At the beginning of the interview, Officer Strong explained to Schimelpfenig that he was under arrest because his prints had been found near Benner's body. Officer Strong then read Schimelpfenig his Miranda*fn6 warnings, which Schimelpfenig indicated he understood and agreed to waive.

[40] When asked about the murder, Schimelpfenig told Officer Strong that he had been in Benner's bedroom to move some boxes. He also stated that he had found a bag of nylons near the Benner residence and had thrown them in a nearby trashcan. When Officer Strong accused him of making up stories, Schimelpfenig stated, 'I want to go because you are accusing me of something I haven't done yet.' RP (June 13, 2003) at 31. Officer Strong would later testify that he perceived the statement to be a 'whining type of comment' that he took as 'more of a question as whether or not he was free to go.' RP (June 13, 2003) at 31. Officer Strong told Schimelpfenig that he could not go because he was under arrest and that certain things needed to be clarified. Schimelpfenig then requested and was allowed to take a bathroom break.

[41] When questioning resumed, Schimelpfenig told Officer Strong that he had been in Benner's home on the day she was murdered. Schimelpfenig stated that he had been in Benner's kitchen talking to her when he began having a terrible headache that he believed had caused him to black out. According to Schimelpfenig, when he came to, he found Benner lying naked in the bedroom. The next thing he remembered was walking home carrying a bag of nylons. Schimelpfenig told Officer Strong that these blackout headaches had occurred three or four times over the past several years.

[42] A jury convicted Schimelpfenig and the court imposed a 400-month exceptional sentence. The court concluded that Benner was 'particularly vulnerable' due to her advanced age and the fact that she lived alone at her home where she was murdered. Clerk's Papers at 222. The court also found that Schimelpfenig knew Benner was elderly and lived alone and that Benner's particular vulnerability was a substantial factor in the commission of her murder.


[44] Ferrier Warnings

[45] When law enforcement seeks to enter a Washington home for purposes of conducting a warrantless search, they must advise the resident, prior to entering, of the right to refuse consent and of the right to limit the scope of the search. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998). In this appeal, Schimelpfenig contends that he was entitled to Ferrier warnings when Officers Strong and Cox visited his mother's home on December 4 and 6. Schimelpfenig contends that Ferrier applies because Officers Strong and Cox came to his home for the purpose of seizing evidence, i.e., footprints, fingerprints, and, ultimately, Schimelpfenig's shoes. We disagree.

[46] Ferrier warnings are only required when the officers are seeking entry for the purposes of conducting a warrantless 'knock and talk' type search of the home. When the home is only incidental to law enforcement's reason for seeking entry, Ferrier does not apply. State v. Khounvichai, 149 Wn.2d 557, 564, 69 P.3d 862 (2003). Thus, for example, Ferrier warnings need not be given when an officer seeks entry to conduct an interview. Khounvichai, 149 Wn.2d at 564.

[47] The officers' visit to the Schimelpfenig home on December 4 had two related purposes: to follow up on Schimelpfenig's previous statement that he had been in Benner's home the day before the murder and to request voluntary fingerprints and shoeprints that could eliminate him as a suspect. The interview aspect of this visit did not require Ferrier warnings. Khounvichai, 149 Wn.2d at 564. Likewise, the officers' request for voluntary prints was not a search of the home. The home was merely an incidental location for taking the fingerprints; the officers could just as easily have waited until Schimelpfenig walked outside his house and then requested that he give the prints. Ferrier warnings were not required.*fn7

[48] As to the December 6 interview, again, the fact that the request to take the shoes occurred at Schimelpfenig's home was merely an attendant circumstance; no search of the home occurred. But more importantly, Hoquiam police had a warrant to seize Schimelpfenig's shoes when they asked him to voluntarily relinquish them. Schimelpfenig argues that his consent was invalid because he was unaware of the warrant. But the police did not need to seek Schimelpfenig's consent to enter to serve a valid warrant. See State v. Johnson, 104 Wn. App. 489, 503, 17 P.3d 3 (2001) ('An officer serving a search warrant is not required to seek consent to enter, but he or she is permitted to do so in order to minimize violence, protect privacy, and prevent property damage. When necessary to accomplish these goals, an officer may even lie to obtain consent.') (footnotes omitted). Although the police should not have offered Schimelpfenig money to buy new shoes, the offer did not negate Schimelpfenig's voluntary relinquishment of the shoes or the lawful authority to seize the shoes by serving the unchallenged search warrant. Ferrier does not apply.

[49] Right to Remain Silent

[50] Schimelpfenig next contends that his post-arrest statements to Officer Strong were inadmissible because he had invoked his right to remain silent. It is well established that once an accused asserts his right to remain silent, all interrogation must cease 'unless the accused himself initiates further communication, exchanges, or conversations with the police.' Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed. 2d 378 (1981). But an accused's invocation of the right to remain silent must be 'clear and unequivocal.' State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004).

[51] Schimelpfenig acknowledges that he voluntarily waived his right to remain silent when the interview with Officer Strong began. According to Schimelpfenig, he invoked his right to silence when he stated, 'I want to go because you are accusing me of something I haven't done yet.' RP (June 13, 2003) at 31. But this was not an unequivocal invocation of his right to remain silent. Compare State v. Grieb, 52 Wn. App. 573, 574-76, 761 P.2d 970 (1988) (concluding that the statement, 'I don't wanna waive my rights,' was an unequivocal invocation of the right to counsel and the right to remain silent), with Hodges, 118 Wn. App. at 673 (accused did not invoke right to remain silent where he did not answer the question, 'what happened next,' but shortly thereafter answered a different officer's question without hesitation). Schimelpfenig's comment unmistakably asserted that he wanted to leave and that he did not like being accused. But Schimelpfenig was under arrest and not free to leave and the officer reiterated that to him. Schimelpfenig did not invoke his right to remain silent. After he made the comment that he wanted to go because he did not like being accused, he asked to use the bathroom. When he returned, he freely began talking. Schimelpfenig did not invoke his right to remain silent and his statements about what had occurred on the night Benner was murdered were voluntary and admissible.

[52] Sufficiency of the Evidence

[53] Schimelpfenig also contends that there was insufficient evidence to find that he acted with premeditated intent in causing Benner's death. See RCW 9A.32.030 (first degree murder). A challenge to the sufficiency of the evidence accepts the State's evidence as true and all reasonable inference that can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Evidence is sufficient if, viewing the State's evidence in the light most favorable to the State, any rational trier of fact could have found the elements at issue beyond a reasonable doubt. Salinas, 119 Wn.2d at 201.

[54] 'Premeditation' involves a deliberate formation of and reflection on the intent to take a human life and includes the 'mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.' State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995); see also RCW 9A.32.020(1) ('{T}he premeditation required in order to support a conviction of the crime of murder in the first degree must involve more than a moment in point of time.'). By itself, evidence of strangulation is not sufficient to support a finding of premeditation. State v. Bingham, 105 Wn.2d 820, 826, 719 P.2d 109 (1986). Sufficient evidence may be found, however, where a weapon was used, where the weapon was not readily available at the time that the victim was murdered, or where there was evidence of a motive. Gentry, 125 Wn.2d at 599; State v. Ortiz, 119 Wn.2d 294, 312-13, 831 P.2d 1060 (1992). Evidence will also be sufficient when it proves a prolonged struggle occurred before the strangulation. State v. Harris, 62 Wn.2d 858, 867-68, 385 P.2d 18 (1963) (victim was struck several times in the head before she was strangled using an electrical cord); State v. Gibson, 47 Wn. App. 309, 312, 734 P.2d 32 (same), review denied, 108 Wn.2d 1025 (1987).

[55] Schimelpfenig claimed that he had blacked out while in Benner's home and, thus, he could not have formed a premeditated intent to kill. But the jury was free to disbelieve his story. The jury could reasonably infer from the bruises and cuts on Benner's arms and face that Benner and Schimelpfenig had struggled before he strangled her. In addition, Schimelpfenig did not strangle Benner with his bare hands. He used a nylon stocking. The jury could reasonably infer that Schimelpfenig searched Benner's dresser for the purpose of finding a ligature to strangle her with. Benner's defensive wounds and the use of a ligature are sufficient to support the jury's finding that Schimelpfenig acted with premeditation when he killed Benner.

[56] Exceptional Sentence

[57] The sentencing court imposed an exceptional sentence of 400 months based on its conclusion that Benner was a 'particularly vulnerable' victim. Under former RCW 9.94A.535(2)(b) (2002), this conclusion will justify an exceptional sentence if three facts are found: (1) that the defendant's victim was 'particularly vulnerable' due to a certain characteristic; (2) the defendant knew of the particular vulnerability; and (3) the vulnerability was a substantial factor in the commission of the crime. State v. Gore, 143 Wn.2d 288, 318, 21 P.3d 262 (2001), overruled by State v. Hughes, Wn.2d, 110 P.3d 192 (2005). The sentencing court made these findings with Benner's 'particular vulnerability' attributed to her age and the fact that she lived alone. Citing Blakely, Schimelpfenig maintains that his exceptional sentence must be vacated because he had a right to have a jury find those facts to support a 'particularly vulnerable' victim justification for an exceptional sentence. The State argues that because Benner was 72 years old, she was particularly vulnerable as a matter of law and, thus, Blakely does not apply because the sentencing court did not engage in fact-finding.

[58] As to the requirement of a particularly vulnerable victim, several courts have held that 'advanced age'*fn8 renders an individual 'particularly vulnerable' as a matter of law. See, e.g., State v. Jones, 130 Wn.2d 302, 312, 922 P.2d 806 (1996) (77-year-old woman); State v. Butler, 75 Wn. App. 47, 53, 876 P.2d 481 (1994) (89-year-old woman), review denied, 125 Wn.2d 1021 (1995); State v. Clinton, 48 Wn. App. 671, 676, 741 P.2d 52 (1987) (67-year-old woman). In this case, even were we to accept the State's position that a 72-year-old woman is particularly vulnerable, which we do not, the jury did not make the factual finding as to Benner's age. Nor did it find, as the sentencing court did, that Benner lived alone, that Schimelpfenig knew of Benner's vulnerability, or that Benner's vulnerabilities were a substantial factor in the commission of her murder. Under Blakely, Schimelpfenig had a constitutional right to have a jury make these factual findings. Moreover, Blakely errors, i.e., increased sentencing based on facts neither admitted by the defendant nor found by a jury, cannot be harmless. Hughes, 110 P.3d at 205.*fn9 Thus, we vacate the exceptional sentence and remand to the trial court with direction that it impose a sentence within Schimelpfenig's standard range of 240 to 320 months.


[60] We concur:

[61] MORGAN, J.

[62] VAN DEREN, J.


Opinion Footnotes


[63] *fn1 In the unpublished portion of this opinion, we address Schimelpfenig's challenges to his conviction and exceptional sentence. We affirm the conviction but vacate the exceptional sentence and remand for resentencing.

[64] *fn2 See, e.g., State v. Lee, 135 Wn.2d 369, 391, 957 P.2d 741 (1998) (in upholding anti-stalking law, noting that '{i}ndividuals have a constitutional right to move about as long as they are not committing a crime'); City of Seattle v. McConahy, 86 Wn. App. 557, 571-72, 937 P.2d 1133 (upholding ordinance barring persons from sitting on sidewalks because the ordinance was restricted to certain areas during specific hours), review denied, 133 Wn.2d 1018 (1997); State v. J.D., 86 Wn. App. 501, 507-09, 937 P.2d 630 (1997) (striking down juvenile curfew statute which was not narrowly tailored to prevent crime or protect juveniles from being the victims of crime).

[65] *fn3 We note that the trial court's ban only forbids Schimelpfenig from residing in the county. It does not prohibit him from entering the county for purposes such as work or recreation. Thus, it appears that the ban does not even serve the sentencing court's purpose of preventing contact between the Benner family and Schimelpfenig.

[66] *fn4 As discussed in the unpublished portion of this opinion, we reverse Schimelpfenig's exceptional sentence and remand for resentencing. Schimelpfenig, who was 41 when convicted, has a standard range of 240 to 320 months.

[67] *fn5 After Schimelpfenig gave the shoes, his mother declined the officers' offer of monetary compensation.

[68] *fn6 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

[69] *fn7 When Ferrier does not apply, this court normally asks whether consent was voluntarily given. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). But we do not review that here because Schimelpfenig does not assert that the police coerced his consent to the printing.

[70] *fn8 Former RCW 9.94A.535(2)(b).

[71] *fn9 In light of the Washington Supreme Court's holding in Hughes that superior courts do not have the inherent authority to convene a sentencing jury, we need not address the State's contention to the contrary. Hughes, 110 P.3d at 209.