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Spokane, Washington  Est. May 19, 1883
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Ex-special ed teacher freed from prison

Former Lakeside High School special education teacher Carl John Schubert was released from prison Wednesday because his sentence for indecent liberties with a student was overturned on appeal.

The ruling, based on a U.S. Supreme Court decision last summer, sets up another test of whether Washington trial judges may still impose above-standard sentences without guidance from the Legislature.

Visiting Spokane County Judge Tari Eitzen will conduct a hearing April 5 in Pend Oreille County Superior Court, where Schubert was convicted in 2003, to determine whether she can impanel a jury to consider aggravating factors in his case.

Meanwhile, Eitzen placed the 60-year-old Schubert under the supervision of a probation officer, subject to a variety of conditions, including no contact with disabled students or patients.

Eitzen is handling the case because Schubert rejected one of Pend Oreille County’s two Superior Court judges and the other reviewed Schubert’s case as a deputy prosecutor before becoming a judge.

Even assuming a one-third credit for good behavior, Schubert’s release was almost five years early. Now-retired Pend Oreille County Superior Court Judge Larry Kristianson sentenced Schubert to the statutory maximum 10 years.

Kristianson said Schubert violated a trust and took advantage of a particularly vulnerable victim when he molested one of his longtime Nine Mile Falls School District students, a 20-year-old woman with what doctors said was the mind of a 5- to 7-year-old.

When Kristianson handed down the sentence in September 2003, Washington law allowed him to decide whether aggravating factors justified an above-standard sentence. The Supreme Court said last June that juries must decide all facts used to justify above-standard sentences.

Without such a jury finding, Schubert’s standard maximum would have been 20 months. Schubert had served 21 months when Eitzen released him Wednesday.

Schubert must be resentenced, and Deputy Prosecutor Tony Koures wants him to get another above-standard sentence. At next month’s hearing, Koures will ask Eitzen to impanel a jury to determine whether Schubert’s conduct involved the aggravating factors that Kristianson found.

Defense attorney Doug Phelps will argue that impaneling a jury and reimposing an above-standard sentence would be improper for a variety of reasons. In particular, Phelps contends that would be unconstitutional double-jeopardy.

Phelps conceded, however, that a division of the Washington Court of Appeals has told him in an Everett case that there is no double-jeopardy in impaneling a special jury for sentencing. He said he will ask the state Supreme Court to overturn that decision.

Another major issue cited by Phelps and other defense attorneys is the idea that defendants must be given notice in charging documents that they could get an above-standard sentence.

That’s the approach taken in corrective legislation that recently cleared the state Senate Judiciary Committee. The bill would require prosecutors to charge aggravating factors from a list supplied by the new law.

But that kind of notice wasn’t required in the past and wasn’t required by last June’s U.S. Supreme Court ruling, according to prosecutors. A law allowing above-standard sentences is notice enough, they say.

By implication, the Supreme Court agreed, according to Kevin Korsmo, the senior deputy prosecutor who handles appeals for Spokane County.

If the court found a problem with notice, it would have said so, Korsmo said. The court “wouldn’t have had to tinker with the exceptional-sentence machinery” if it could have invalidated the law on notification grounds.

Since the Supreme Court ruling, no Spokane County judge has exercised what appellate courts say is their authority to fashion a remedy.

Divisions I and II of the Court of Appeals have ruled in Western Washington cases that trial courts have authority to impanel special juries and should use it. Division III, based in Spokane, ducked the question in Schubert’s case and remanded it for resentencing without guidance.

With Division III silent on the issue so far, the uniform position of the other two divisions might be expected to prevail throughout the state. Spokane County’s presiding Superior Court Judge Linda Tompkins cautioned, however, that trial courts may properly decline to ask juries to consider aggravating factors because of special circumstances in individual cases.

For example, some of the cases in which Spokane County judges have declined to consider above-standard sentences have involved sex offenses. Sentencing serious sex offenders involves the interplay of two laws.

Judge Jerome Leveque ruled he lacked authority to impose above-standard sentences in two such cases: the nearly fatal rape of a 3-year-old boy, and the rape of a mute, quadriplegic, 12-year-old girl by her home-care nurse.

In a non-sex trial that got started this week, Leveque will be asked to impose an exceptional sentence if Robert L. Doney Jr. is convicted of murdering his girlfriend’s 2-year-old daughter. Leveque hasn’t decided yet whether to ask the jury to consider aggravating factors.

In other non-sex cases, Judges Kathleen O’Connor, Robert Austin and Neal Rielly have ruled they lacked authority to impanel juries. O’Connor’s ruling, in the second-degree murder case of James C. Metcalf, is on appeal.

Metcalf’s trial in the strangulation of Denise M. McCormick is on hold pending a ruling by Division III of the Court of Appeals, which is to hear arguments later this month.

In the case of a man who severely injured an elderly woman while snatching her purse, Austin ruled he lacked authority to ask the jury that convicted the man to consider aggravating factors.

The man’s accomplice, who merely drove the getaway car, opted for a non-jury trial by O’Connor. She convicted him and ruled – contrary to Leveque in another case – that waiving one’s right to a jury trial applies to sentencing issues as well.

O’Connor sentenced the getaway driver to 10 years. That was twice his standard maximum and more than twice the 4 1/2 years Austin gave the man who actually injured the victim. The getaway driver is appealing.

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