Opinion
No. 53314-2-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00485-1. Judgment or order under review. Date filed: 10/13/2003. Judge signing: Hon. James D. Cayce.
Counsel for Appellant(s), Jo Banks — Informational Only (Appearing Pro Se), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Because the sentencing court questioned whether it had discretion to consider provocation as a mitigating factor in the absence of a trial transcript, we remand for a new sentencing hearing to allow the sentencing court to consider the trial transcript and to exercise its discretion.
Maria Martinez obtained a court order prohibiting Johnny Banks from directly or indirectly contacting her. When Banks found a bra he had given to Martinez hanging on his truck, he contacted Martinez's friend to relay his request that Martinez stop harassing him. Banks was convicted of felony violation of a domestic violence no contact order.
At sentencing, Banks argued for an exceptional sentence downward because there was undisputed trial evidence that Martinez had placed the lingerie on Banks' truck establishing that `[t]o a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.' RCW 9.94A.535(1)(a). The prosecutor ultimately conceded that Martinez may not have denied the incident in her trial testimony. The sentencing court concluded that it could not resolve the factual issue without a trial transcript. The court denied an exceptional sentence downward, noting that `I don't have discretion' but it could make a difference if Martinez had provoked the incident:
All right. The initial question I have to resolve is do I have discretion to impose an exceptional down based upon the fact that I cannot make a finding that the State conceded that the victim actually did put the bra on the vehicle for purposes of this trial and sentencing. I can't make a determination one way or the other with respect to that, so if the record shows otherwise, Mr. Banks may get a new trial or a new sentencing. I'm sorry. On that issue, I think it's possible it could make a difference if she was basically a willing victim, by setting him up for something like this. [A]lthough his actions clearly were a violation of the no contact order [it] is about as de minimis as it can get.
Banks argues that Martinez's trial testimony did not dispute Banks' version that her bra ended up on his truck, and the sentencing court had the discretion to resolve that issue and impose an exceptional sentence downward based upon provocation. Banks also contends that the State is precluded from presenting any new evidence at resentencing relying on State v. Ford, 137 Wn.2d 472, 484-85, 973 P.2d 452 (1999) (Where disputed issues have been fully argued to the sentencing court, a reviewing court normally will remand for resentencing without allowing the introduction of further evidence.)
Mitigating factors may be based upon facts admitted, acknowledged, proven at trial or proven at the time of sentencing. Here, the sentencing court questioned whether it had the discretion to consider provocation as a mitigating factor in the absence of a trial transcript to evaluate whether provocation was undisputed at trial. It is clear that the court had discretion to consider mitigating factors such as provocation. Because the sentencing court observed that it might make a difference in the sentence imposed, it is especially appropriate to remand this matter for resentencing to allow the court to consider the trial transcript. And, because it is not clear that the disputed issue of provocation was `fully argued,' the sentencing court may resolve any questions that arise at resentencing regarding the application of Ford.
Because the other issue raised by Banks may arise on resentencing, we note that a biological sample for DNA identification is not precluded by the Fourth Amendment or article I, section 7 of the Washington Constitution. State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004).
We remand for a new sentencing hearing.
KENNEDY, SCHINDLER and GROSSE, JJ.