Opinion
No. 24136-0-III.
April 12, 2007.
Appeal from a judgment of the Superior Court for Kittitas County, No. 04-1-00210-1, Kenneth L. Jorgensen, J., entered April 28, 2005.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Brown, J.
J.E. appeals his sentence for one count of second degree murder by complicity. He contends the sentencing judge erred by not recusing himself from the proceedings and by not imposing an exceptional sentence downward. We affirm.
On February 15, 2003, police officers were dispatched to an Ephrata park to investigate a missing child report. At the park, police found 13-year-old C.S. dead in the underbrush. Twelve-year-olds J.E. and E.S. told police they had been playing with C.S., but when he decided to go home, they also went home.
The next day, J.E. and E.S. met officers at the park. J.E. told police that C.S. had fallen out of a tree, landing on his left shoulder and head. J.E. said he was twitching and moving his hand. He and E.S. thought C.S. was "messing with them," so they left him there. Clerk's Papers at 6.
On February 17, an autopsy was performed. The autopsy determined that C.S. had four stab wounds to the back. Three of these wounds had entered the chest cavity, puncturing a kidney, a lung, and his diaphragm. C.S. also had one stab wound to the front of his chest and several in the head. A small piece of metal was discovered embedded in C.S.'s skull directly under a stab wound. The autopsy determined C.S. had died from multiple stab wounds and blunt trauma to the head.
On February 19, 2003, J.E. was charged in juvenile court with one count of first degree murder. Judge Kenneth Jorgensen was assigned to the case. On March 21, defense counsel filed an affidavit of prejudice against the judge. On May 8, the State filed an affidavit of prejudice against Judge Evan Sperline. Judge John Antosz presided over the declination hearing in juvenile court. When juvenile jurisdiction was declined, the case was transferred to the Grant County Superior Court.
On March 9, 2004, J.E. was charged with first degree murder in superior court. On March 11, the State filed an affidavit of prejudice against Judge Sperline.
On July 20, Judge Antosz was to hear defense motions. Defense counsel informed the judge that he intended to file an affidavit of prejudice against him. Judge Jorgensen took the bench and entered an order disqualifying Judge Antosz. Between July and October 2004, Judge Jorgensen presided over the case and decided several motions.
On October 4, 2004, defense counsel filed a motion for appointment of a new judge. On October 19, the defense counsel for J.E. and E.S. jointly filed a motion for appointment of a disinterested judge to preside over the October 26, 2004 hearing on the motion to appoint a new judge. They argued that Judges Jorgensen, Antosz, and Sperline were all disqualified from hearing the matter. On November 1, 2004, Judge Jorgensen denied the motion, noting the cases of J.E. and E.S. were not joined. The court also stated J.E. was allowed one affidavit of prejudice and it was used to disqualify Judge Antosz.
On April 28, 2005, J.E. pleaded guilty to one count of second degree murder by complicity. At the plea hearing, the prosecutor and defense counsel requested an exceptional sentence downward of 8-1/2 years based on mitigating factors. The court sentenced J.E. to a standard range sentence of 171.5 months.
This appeal follows.
J.E. contends Judge Jorgensen erred by refusing to disqualify himself. RCW 4.12.050 permits a party to change judges once as a matter of right, upon timely motion and affidavit of prejudice. The statute states in relevant part:
Any party to or attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: PROVIDED, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion . . . AND PROVIDED FURTHER, That no party or attorney shall be permitted to make more than one such application in any action or proceeding under this section.
Here, J.E. filed an affidavit of prejudice against Judge Jorgensen when the matter was pending in juvenile court. When the case was transferred to the Grant County Superior Court, J.E. filed an affidavit of prejudice against Judge Antosz. J.E. then allowed Judge Jorgensen to decide various motions for several months without calling the prior affidavit of prejudice against him in juvenile court to his attention. At the hearing on the motion for a disinterested judge, defense counsel stated that J.E.'s one affidavit of prejudice was used against Judge Antosz. Moreover, J.E. waived any objection to Judge Jorgensen by allowing him to make discretionary rulings without calling to his attention the prior affidavit of prejudice filed against him in juvenile court. RCW 4.12.050; State v. Torres, 85 Wn. App. 231, 232-33, 932 P.2d 186, review denied, 132 Wn.2d 1012 (1997). In these circumstances, Judge Jorgensen did not err by declining to disqualify himself from the case.
J.E. also argues Judge Jorgensen's failure to disqualify himself violated the appearance of fairness doctrine. Due process, the appearance of fairness doctrine, and Canon 3(D)(1) of the Code of Judicial Conduct require a judge to disqualify himself if he is biased against a party or his impartiality may reasonably be questioned. State v. Madry, 8 Wn. App. 61, 68-70, 504 P.2d 1156 (1972). A party claiming bias or prejudice must, however, support the claim. Id.
But J.E. did not produce any evidence of actual prejudice or bias on the part of Judge Jorgensen to implicate the appearance of fairness doctrine. Evidence of a judge's actual or potential bias is required before the appearance of fairness doctrine will be applied. State v. Post, 118 Wn.2d 596, 618-19, 826 P.2d 172, 837 P.2d 599 (1992). The judge was therefore not required to disqualify himself from the proceedings.
J.E. next contends the court erred by not imposing an exceptional sentence downward. Generally, a standard range sentence may not be appealed. RCW 9.94A.585(1). A defendant, however, may challenge the procedure by which a sentence within the standard range is imposed. State v. Mail, 121 Wn.2d 707, 712-13, 854 P.2d 1042 (1993). When a defendant has requested an exceptional sentence downward, review is limited to those instances when the court refused to exercise discretion at all or relied on an impermissible basis for refusing to impose an exceptional sentence before the standard range. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998).
A court refuses to exercise its discretion if it categorically refuses to impose an exceptional sentence downward under any circumstances. Id. A court relies on an impermissible basis if it does not consider the request because of the defendant's race, sex, religion, or other characterization, such as a drug dealer. Id. As long as the court has considered all the facts and has concluded that an exceptional sentence downward is factually or legally unsupportable, the defendant may not appeal its ruling. Id.
Judge Jorgensen listened to argument from counsel and determined there was no compelling reason to depart from a standard range sentence. The court did not refuse to exercise its discretion and did not rely on an impermissible basis for refusing J.E.'s request for an exceptional sentence. His standard range sentence cannot be appealed.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
SWEENEY, C.J.
BROWN, J.