Opinion
No. 53987-6-I
Filed: April 11, 2005
Appeal from Superior Court of Skagit County. Docket No. 02-1-00465-1. Judgment or order under review. Date filed: 12/19/2003. Judge signing: Hon. Michael E. Rickert.
Counsel for Appellant(s), Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.
Counsel for Respondent(s), Dennis Rollin Scott, Attorney at Law, PO Box 1502, Anacortes, WA 98221.
OPINION
After the trial court ordered a Special Sex Offender Sentencing Alternative (SSOSA) for convicted child molester Dean Greer, the court, without Greer present, granted the State's motion to vacate his judgment and sentence. Vacating the judgment and sentence without Greer present deprived him of his right to due process. We reverse and remand.
FACTS
Dean Greer was charged with two counts of first degree child molestation. He pleaded guilty to the charges.
Initially, the community corrections officer (CCO) who performed a pre-sentence investigation recommended against Greer receiving a SSOSA. The CCO explained that sex offenders depend upon secrecy and deception to commit their crimes and, although Greer disclosed that he had molested another young girl in addition to the victim of his current offenses, he had not passed a `full-disclosure' polygraph examination. But Greer passed a second polygraph examination after disclosing a third victim. As a result, the CCO recommended that Greer be given a SSOSA.
A sentencing hearing was held on September 19, 2003. But the victim's mother, Tracy McCown, who had attended all or most other hearings in the case, was not present. The judge and prosecutor were surprised by McCown's absence, but the prosecutor did not ask for a continuance. The record, however, contained written statements from McCown and the victim opposing a SSOSA. These were considered by the judge.
The prosecutor argued against a SSOSA. She asserted that Greer was unable to follow court orders, which showed that he was not likely to be successful under a SSOSA. In support of her argument, the prosecutor cited an additional charge brought against Greer for violating a protection order for staking out McCown's workplace. Additionally, Greer had been living with his parents and their 4-year-old granddaughter, in violation of a court order prohibiting contact with minor children.
Greer's attorney argued in favor of a SSOSA. A doctor who evaluated Greer and found him an appropriate candidate for a SSOSA was present, but was not asked to testify. The record, however, included the doctor's report.
The court sentenced Greer to a SSOSA, which included an 89-month prison term, 83 months of which were suspended, and sexual deviancy treatment. Ten days later, the State moved to vacate the judgment and sentence and to re-sentence Greer, citing Criminal Rule (CrR) 7.8. In a declaration attached to the motion, the prosecutor explained that McCown, who had a right under RCW 7.69.030 to speak at Greer's sentencing, did not attend because she thought the hearing had been continued. The mix-up occurred when someone from the prosecutor's office left a message with her 11-year-old daughter telling her that a hearing relating to the violation of the no contact order was continued. The daughter told her mother that the hearing in the child molestation case had been continued. As a result, McCown and others who planned to testify on the victim's behalf had not appeared at the sentencing hearing.
Greer was in jail when the court was to hear the motion to vacate the judgment and sentence, but his attorney did not ask that he be brought to court. The prosecutor explained that McCown missed the sentencing because of a miscommunication. The prosecutor admitted that she could have called McCown on the day of the sentencing to find out why she was not present, but that thought had not occurred to the prosecutor at the time.
The judge expressed frustration over the mix-up: `I'm biting my tongue because that was a difficult sentencing hearing and now you're asking me to do it all over again because a phone call wasn't made.' The judge indicated that he would reserve his decision on the motion, and defense counsel apparently left. Then, the court heard other matters. But before court was adjourned, the prosecutor informed the judge that McCown wanted to address the court about reopening the matter.
The court allowed McCown to address the court and explain why she missed the hearing. But McCown also stated that Greer had a pattern of grooming his girlfriends' daughters to molest. She said that, like her own daughter, Greer's third victim was the daughter of another former girlfriend. McCown begged to be given a chance to speak for her daughter, who could not speak for herself. After hearing McCown, the court agreed to re-sentence Greer. Neither Greer nor his attorney was present for any of this.
At the re-sentencing, McCown again testified that Greer had a pattern of grooming his victims: he became intimate with a girl's mother, gained her trust, and then molested the daughter. The State indicated that the mother of Greer's third victim, whom Greer had admitted molesting, was in the courtroom.
Greer's defense attorney objected to the court hearing from anyone other than McCown. The defense attorney understood that the purpose of the hearing was only to allow McCown the opportunity to speak, not to actually re-sentence Greer. But the judge pointed out that the State's motion was to vacate the judgment and sentence and re-sentence Greer. Nevertheless, the court understood defense counsel's confusion because the prosecutor had emphasized previously that the motion should be granted only to allow McCown to speak. Additionally, the judge acknowledged that only he and the prosecutor were present when he granted the State's motion. Furthermore, there was no order granting the motion in the record.
Because defense counsel had misunderstood the purpose of the hearing, he had not asked the expert who recommended a SSOSA to attend. Therefore, the court ordered another hearing so that Greer's expert could be present. The court emphasized, however, that the next hearing must take place in the next two weeks. If the expert was not available to testify within that time, defense counsel agreed to inform the court. Another sentencing hearing was set for December 19, 2003.
But on the day of the hearing, Greer moved for a continuance because the expert was unavailable. The court denied the motion. Greer then argued that the SSOSA should stand because the State had not followed the procedure required under CrR 7.8 to vacate the judgment and sentence. The court rejected Greer's argument, heard testimony from McCown and the other victim's mother, and re-sentenced Greer to a standard range sentence of 67 to 89 months in prison.
This appeal followed.
ANALYSIS
Greer Had A Right To Be Present When The Court Heard The State's Motion To Vacate Greer contends that the trial court erred when it heard the State's motion to vacate his judgment and sentence without him being present. We agree.
A defendant's right to be present at all critical stages during criminal prosecutions is rooted in the Confrontation Clause of the Sixth Amendment to the United States Constitution. United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). In some situations where the defendant is not actually confronting witnesses or evidence against him, the Due Process Clause of the Fifth Amendment also protects a defendant's right to be present. Gagnon, 470 U.S. at 526. `[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.' Gagnon, 470 U.S. at 526 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 2d 674 (1934)). If a proceeding relates to legal matters that do not require a resolution of disputed facts, the defendant does not have a right to be present. In re Personal Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994). The defendant's exclusion from a trial proceeding is considered in light of the whole record. Gagnon, 470 U.S. at 526-27.
In this case, the court could have decided the legal question whether the State had satisfied CrR 7.8(b)(1) based only upon McCown's explanation of why she missed the sentencing hearing. But McCown not only explained her reason for missing the sentencing, she alleged that Greer had a pattern of molesting his girlfriends' daughters. Greer had no opportunity to challenge the assertion, which appears to have persuaded the court to grant the motion.
The court's consideration of the State's motion to vacate the judgment and sentence without Greer or his attorney present deprived him of a fair hearing. Therefore, the trial court erred when it granted the motion to vacate his judgment and sentence in his absence.
CONCLUSION
Greer was denied his right to due process when the trial court granted the State's motion to vacate his judgment and sentence in his absence. We, therefore, reverse and remand the case for a new hearing in front of a different judge on the State's motion to vacate Greer's judgment and sentence.
SCHINDLER and BAKER, JJ., Concur.