Opinion
No. 24304-4-III.
April 17, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 04-1-00670-3, C. James Lust, J., entered June 28, 2005.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Kulik, J.
Darrell Anderson was convicted of first degree child molestation and sentenced to life without the possibility of parole. He claims the court erred by excluding evidence on the victim's credibility and wrongfully sentencing him as a persistent offender. We affirm.
On February 9, 2004, the Kent Police Department investigated an allegation by L.P. that Mr. Anderson molested him. L.P. stated that after helping Mr. Anderson move in December 2002, he spent the night at his apartment. He was watching television in Mr. Anderson's bedroom and his brother was sleeping in the living room. L.P. fell asleep, but was later awakened by the television. Mr. Anderson pulled him on the bed and started "doing bad stuff." Report of Proceedings (RP) at 72. Mr. Anderson pulled his shorts down to his ankles and "tried to stick his thing near my bottom." RP at 74. L.P. said he "also put his thing near my thing." RP at 75. L.P. tried to push Mr. Anderson off, but he tried to put "his private" in L.P.'s mouth. RP at 77. L.P. put his knee up and "hit his thing" and ran out of the room. RP at 77. L.P did not tell anybody because he thought it would ruin his life. He finally told his foster parents after being scolded by them.
Because the incident occurred in Yakima County, Sheriff's Detective Robert Udell of that county was assigned to the case and brought Mr. Anderson in for questioning. He acknowledged knowing L.P., who helped him move in December 2002. Mr. Anderson denied touching L.P. He stated L.P had a vivid imagination and had discipline problems.
The State charged Mr. Anderson with first degree child rape or, in the alternative, first degree child molestation. The jury found him guilty of first degree child molestation. The court imposed a sentence of life without the possibility of parole pursuant to the Persistent Offender Accountability Act (POAA), chapter 9.94A RCW. This appeal follows.
Mr. Anderson sought to admit testimony regarding L.P.'s reputation for truthfulness in the community. L.P.'s cousin, Larry Willy, Jr., testified during voir dire that L.P's community consisted of his family, grandmother, mom, siblings, and a couple of his mom's friends. He said no one trusted L.P. because he lied. Finding the community was too small and not necessarily neutral, the court excluded the proferred testimony. ER 608(a) allows the use of reputation testimony to impeach the credibility of a witness subject to certain limitations. Any testimony must relate to the subject witness's reputation in his community. State v. Lord, 117 Wn.2d 829, 873, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). The testimony must be based on knowledge of the reputation, not the personal opinion of the impeaching witness. Id. The party seeking to admit reputation evidence must provide a foundation that the impeaching witness has knowledge of the subject's reputation in a community that is both neutral and general. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). In determining the adequacy of the foundation, the court considers multiple factors, including "the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community." Id. We review the court's ruling under an abuse of discretion standard. Id.
Mr. Willy's testimony was based largely on his personal opinion. This is not permissible. See id. Moreover, the community consisted of family members. "[T]he inherent nature of familial relationships often precludes family members from providing an unbiased and reliable evaluation of one another." State v. Gregory, 158 Wn.2d 759, 805, 147 P.3d 1201 (2006). The court did not abuse its discretion by excluding the evidence.
Mr. Anderson next contends the court erred by sentencing him as a persistent offender. The POAA, also known as the "three strikes and you're out" law, was approved in 1993 by an overwhelming majority of voters in this state and is codified at RCW 9.94A.030. State v. Morley, 134 Wn.2d 588, 602, 952 P.2d 167 (1998) (quoting State v. Thorne, 129 Wn.2d 736, 746, 921 P.2d 514 (1996)). Under this statute, if a defendant is a persistent offender, the court must sentence the defendant to life in prison without the possibility of parole. Morley, 134 Wn.2d at 602.
The State argued Mr. Anderson had two prior strikes: a 1985 indecent liberties conviction on a guilty plea and a 1986 third degree rape conviction. For the 1985 conviction, the court deferred Mr. Anderson's sentence and ordered probation. The 1986 conviction revoked the probation on the 1985 offense. The State produced the judgment and sentence for the third degree rape, which listed the indecent liberties conviction as a prior. But it did not provide the court with the order terminating probation on the indecent liberties. Rather, it used clerk's notes to establish this fact. The court determined the State had met its burden of proof and sentenced Mr. Anderson to life without the possibility of parole because the current conviction was his third strike.
Mr. Anderson argues the court erred in counting his 1985 conviction for indecent liberties as a predicate felony. He claims that because the court deferred his sentence for that crime, it was not a conviction under the POAA. He relies on State v. Carpenter, 117 Wn. App. 673, 72 P.3d 784 (2003).
In Carpenter, the defendant was convicted of two counts of second degree robbery. Id. at 675. He was sentenced under the POAA, one of the predicate felonies being a 1996 second degree assault conviction.
Id. at 675-76. Mr. Carpenter was 17 at that time. Id. at 676. Initially, he had been charged with first degree assault, a crime with automatic declination of juvenile court jurisdiction. Id. But he pleaded guilty to a reduced charge of second degree assault, a crime for which juvenile jurisdiction was not automatically declined, and the State failed to seek a declination before pursuing the conviction in adult court.
Id. After he was charged with two second degree robbery counts, the State sought declination from the juvenile court of the 1996 assault charge. Id. In January 2000, the declination order was entered. Id. at 677. Mr. Carpenter claimed on appeal that the 1996 conviction was invalid until the adult court had jurisdiction in 2000.
In reviewing this issue, Division Two of this Court looked to the definition of "conviction." It noted the POAA did not define conviction, but the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, did.
Id. at 680. The SRA defines "conviction" as "an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty."
RCW 9.94A.030(12). The court noted the SRA definition did not limit or qualify the term "conviction" as some statutes did. For example, some statutes find a person has been convicted at the time the plea of guilty has been accepted or a verdict has been filed, notwithstanding the pendency of any future proceedings. Id. at 680-81 (citing RCW 9.41.040(3), RCW 9.61.230, RCW 9A.46.020, and RCW 9A.46.110). Because the legislature did not qualify the term "conviction" under the SRA or the POAA, the court held the conviction did not stand until 2000 when the declination order was entered. Carpenter, 117 Wn. App. at 681. Because the legislature did not clarify what should occur in this situation, the court applied the rule of lenity and determined the 1996 conviction did not qualify as a conviction until 2000 when the court declined jurisdiction. Id.
But Carpenter is distinguishable. Mr. Anderson's 1985 conviction did not suffer from a jurisdictional problem. He pleaded guilty to indecent liberties. The question is whether the fact his 1985 conviction had a deferred sentence makes any difference. Even though his sentence was deferred, he had nonetheless been found guilty. The court merely stayed the imposition of a prison sentence. State v. Carlyle, 19 Wn. App. 450, 454, 576 P.2d 408 (1978). The sentence is not imposed unless the defendant violates a term of his probation. Id. Deferring a sentence has no bearing on the finding of guilt.
In Carlyle, the court dealt with the same issue presented here, but as it applied to the habitual criminal statute. Id. at 456. The court concluded that "the fact that a court has exercised its discretion and sought to rehabilitate an individual does not alter the fact that the person has been convicted of a crime." Id. at 457. The conviction is the finding of guilt, sentencing is not an element of a conviction, but rather the consequence associated with the conviction. Id.
Mr. Anderson does not claim there was no guilty plea. He argues that the deferred sentence negates his conviction under the POAA. But the type of sentence imposed does not change the fact of conviction.
Mr. Anderson asks in his additional grounds for review if there is a right to speedy sentencing and if there is a timeline. He was found guilty on February 8, 2005. He was sentenced on June 28, 2005.
There is a statutory right to sentencing within 40 days following conviction. RCW 9.94A.500(1). This time period may be extended for good cause by either party or on the court's own motion at its discretion. Id.; State v. Garibay, 67 Wn. App. 773, 776-77, 841 P.2d 49 (1992).
Our courts have held that the right to a speedy sentencing is encompassed within the right to a speedy trial. State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994). In determining whether there has been a violation of the constitutional right to speedy sentencing, courts look to whether the delay was "purposeful or oppressive." Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). This determination is based on the balancing of four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) the extent of prejudice to the defendant. State v. Modest, 106 Wn. App. 660, 663, 24 P.3d 1116 ( citing State v. Rupe, 108 Wn.2d 734, 742, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988)), review denied, 145 Wn.2d 1010 (2001).
Mr. Anderson was found guilty on February 8. The presentence investigation report was completed on March 10. Both the prosecutor and defense counsel had other trials scheduled. This case was first brought before the court for sentencing on May 26. Because of the unique issues with the prior convictions under the POAA, sentencing was continued to June 28, when Mr. Anderson was finally sentenced. The delay was justified by good cause. He shows no prejudice and none can be found. See Garibay, 67 Wn. App. at 777.
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.
Sweeney, C.J. and Kulik, J., Concur.