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State v. Boss and Pelts, No. 81897-5 (argument and briefs). Cynthia Boss was charged and convicted of first degree custodial interference pursuant to RCW 9A.40.060 for intentionally denying Child Protective Services (CPS) access to her daughter after an order awarding CPS legal custody of the child.

Boss appealed, arguing the trial court had committed reversible error because a jury instruction omitted one express element (lawfulness of the custody order) and one implied element (her knowledge of CPS’s right to custody of her daughter) of first degree custodial interference, and another jury instruction impermissibly commented on the evidence. The Court of Appeals affirmed Boss’s conviction.

The Supreme Court agreed, with Justice Charles Johnson writing the unanimous opinion. The Court concluded: (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law, (2) knowledge of the right to physical custody is not an implied element of first degree custodial interference, and (3) Boss was not prejudiced by the trial court’s comment on the evidence.

State v. Powell, No. 80496-6 (argument and briefs). In 1997, Terrance Powell was charged with aggravated first degree murder. He was found guilty, but the conviction was reversed by the Court of Appeals and remanded for retrial. At the subsequent jury trial Powell was found Powell guilty of first degree murder, and the trial judge imposed an exceptional sentence of 720 months after finding a number of aggravating factors. Powell's conviction and sentence were upheld by the Court of Appeals.

After the U.S. Supreme Court’s 2004 decision in Blakely v. Washington (which held that the Sixth Amendment prohibits judges from enhancing sentences based on facts not found by the jury), Powell filed a new appeal. The Court of Appeals reversed the exceptional sentence and remanded for resentencing. The State informed Powell of its intent to seek an exceptional sentence based on statutory aggravating circumstances. Powell moved for a standard range sentence. The trial court impaneled a jury to determine whether there were aggravating circumstances to justify an exceptional sentence.

Powell challenges the trial court’s decision on remand to impanel a jury, arguing the court had no authority to do so as the State did not give notice of intent to seek an exceptional sentence before trial.

The Supreme Court granted discretionary review and affirmed the trial court. Chief Justice Gerry Alexander wrote the 4-vote lead opinion, with two justices joining a concurrence.

We disagree with Powell’s contention that the notice provision in RCW 9.94A.537(1) requires the State give notice of its intent to seek an exceptional sentence. The statute merely states that the State “may” give notice that it is seeking a sentence above the standard sentencing range prior to trial or entry of a guilty plea. The fact that Powell was not given notice prior to trial of the State’s intention to seek an exceptional sentence does not, therefore, run afoul of the plain language of the statute.

Justice Susan Owens and two others dissented.

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The Court will hear four cases today, two in the morning and two in the afternoon. (Docket, briefs)

In the morning session, starting at 9:00 a.m., the Court will hear arguments for:

In re the Personal Restraint Petition of James Grantham, No. 82194-1. This case is up from Division Two Court of Appeals, and concerns whether the Department of Corrections violated Grantham's due process rights by refusing to give him access to evidence used against him in a prison disciplinary hearing.

Grantham is an inmate at McNeil Island prison, and was charged with violating rules when a correctional officer was caught smuggling tobacco and marijuana to him. The evidence against him included a report of suspicious comments he was overheard making to his brother on the phone. Grantham was given notice of the disciplinary hearing where he was charged, but the notice didn't contain the dates and times of his alleged violations. He also requested a copy of the phone record on which the charges were based, which was refused. He appeals for violation of due process due to this lack of evidence.

The Court of Appeals denied Grantham's petition, but the Supreme Court granted discretionary review.

State v. Rhone, No. 80037-5. This case is on appeal from Division Two Court of Appeals and originated in Pierce County Superior Court. It concerns whether using a peremptory challenge to remove the sole minority member of a jury is racially discriminatory on its face without any other evidence.

Rhone, a black man, was charged with robbery and drug possession. The jury selected to hear his trial contained only two black members. One was dismissed "for cause" with the agreement of both parties, but the second was excused with a peremptory (without cause) challenge by the State. Rhone challenged the panel, arguing that the peremptory challenge showed racial discrimination on its face. The trial court disagreed based on the lack of other evidence of intent to discriminate. The appeals court also disagreed with Rhone.

In the afternoon session, starting at 1:30 p.m., the Court will hear arguments in:

State v. Boss and Pelts, No. 81897-5. On appeal from Division One Court of Appeals, this case originated in King County Superior Court. It concerns whether the defendant was prejudiced by two errors made by the judge in his instructions to the jury.

Child Protective Services obtained an order to take custody of Cynthia Boss's daughter due to "imminent risk of harm," but Boss refused to cooperate and moved to Texas. She was eventually found and charged with custodial interference. One element of this crime is that the other party (CPS in this case) has a legal right to the child, which CPS showed by offering the original order giving them custody of the child. The judge told the jury that CPS had a legal right to the girl, but Boss argued this was in error because the validity of the order had not been proven. The Court of Appeals agreed with Boss, but held it was a harmless error.

Boss also argues that her knowledge of CPS' legal right to custody is an element of the crime, but the judge did not include that in his instruction to the jury.

In re the Dependency of Colton Singleton, No. 81720-1. On appeal from Division Three Court of Appeals, this case originated in Ferry County Superior Court. It concerns whether there is sufficient evidence to terminate parental rights.

Amy Singleton has a son diagnosed with ADHD and other behavioral problems. She has a history of drug and alcohol abuse and is under the supervision of social workers. She continues to have substance abuse issues, although evidence was introduced that she is improving. The state filed a third party custody action and the court terminated her parental rights. She argues that the evidence is insufficient to justify the court's determination.

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