Opinion
No. 52002-4-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-05783-3. Judgment or order under review. Date filed: 03/10/2003. Judge signing: Hon. Catherine D Shaffer.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D Aza, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Clarence Hearne (Appearing Pro Se), 77 So. Washington St., Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Clarence Hearne was charged with, convicted of, and sentenced for second degree burglary. He appeals his sentence claiming that at his sentencing he was denied his right to allocution. He argues that the trial court denied him his right of allocution when the judge suggested that he not talk about the facts of his case. But the trial court also advised Hearne that what he said was up to him and twice invited him to speak. We do not find that Hearne was denied his right to allocution, and affirm the sentence.
I
After hearing the sentencing recommendations from the prosecutor and defense counsel, the sentencing judge addressed Hearne. Mr. Hearne, you've got a right by statute to address the Court in mitigation at the time of sentencing. You are approved to bring an appeal. I signed your request to bring an appeal informa pauperis; and let me caution you that whatever you say here could be in theory be used by the State against you on appeal. So, I would suggest you not talk about whether or not this happened and what your responsibility if any was. One thing I would like to know about, if you feel like talking about it, is why I shouldn't take into account your really long history of similar property and theft offenses. You don't have to talk about that if you don't want to. What you say is up to you. And you don't have to speak either. Go ahead if you would like to.
Hearne chose to speak and explained that he had been arrested for criminal trespassing for `trying to be somewhere, you know, to sleep or something.' He also stated that, `I got a lot of stuff from stores just taking stuff to eat.' In reply, the judge commented, `That helps.' She then asked if Hearne wanted to say anything else and Hearne replied, `Probably not.' The judge acknowledged, `that's certainly a sympathetic explanation and I certainly know that you are somebody who doesn't have any money and hasn't had any money for a long time. . . .' Although she explained that she was concerned about the victims, she also commented, `My feeling is that it's fair to take into account the fact that you appear to have been [a] work horse as opposed to the master mind of this particular operation that is before me.' She stated, `it's fair to take into account the fact that a lot of your prior criminal history has to do, I think, with being poor and having no place to stay.' And she added that she was `discounting all of that.'
Finally, the judge explained that `with the number of prior theft convictions you have and the nature of the offenses before me, I don't think it's appropriate to sentence you to the bottom of the range either.' She then imposed a sentence in the middle of the standard range.
II
Hearne argues that a sentencing court should not limit the defendant's right of allocution. We disagree.
In Washington, the right to allocution is codified in RCW 9.94A.500(1) stating that `[t]he court shall . . . allow arguments from . . . the offender . . . as to the sentence to be imposed.' But courts may limit the contents of those arguments. For example, our Supreme Court has commented that `[t]he only legitimate purpose for the allocution was for the defendant to express remorse and ask for mercy.' The court has also remarked that `allocution is not a vehicle which allows a defendant to testify as to his version of the facts while avoiding cross examination.' How many limits may be placed on a defendant's right to allocution before it becomes a hollow act? Hearne argues that when the sentencing judge advised him of the potential negative consequences of speaking about the facts of the case, she chilled his ability to plea for mercy to the point of denying him his right of allocution. If Hearne is correct, we must reverse his sentence and remand to superior court for a different judge to sentence him. Again, however, we disagree with Hearne's argument. We do not dispute that the sentencing judge's advisement sent a mixed message to Hearne. Although the judge explained to Hearne that he had `a right by statute to address the Court in mitigation,' she also suggested that Hearne avoid certain topics during his allocution. But in the end she made clear that what he said was `up to [him].' Moreover, she invited him to address an area of concern to the court, his criminal record, where his statement could provide a basis for mitigation. Once he had spoken, she gave him another opportunity to speak.
RCW 9.94A.500(1).
In re Personal Restraint of Benn, 134 Wn.2d 868, 893, 952 P.2d 116 (1998).
State v. Lord, 117 Wn.2d 829, 897, 822 P.2d 177 (1991).
State v. Aguilar-Rivera, 83 Wn. App. 199, 203, 920 P.2d 623 (1996).
The sentencing judge explained his right to allocution and gave him an adequate opportunity to speak. He addressed a topic that provided the sentencing judge with a sympathetic explanation that may have mitigated his sentence. Hearne received his right to allocution. Therefore, we deny Hearne's request to reverse his sentence.
AFFIRMED.
BAKER, ELLINGTON, and APPELWICK, JJ.