Opinion
Nos. 25428-3-III; 25429-1-III.
September 22, 2009.
Appeals from a judgment of the Superior Court, Spokane County, Nos. 04-1-01965-7 and 05-1-01687-7, Jerome J. Leveque, J., entered August 10, 2006.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Brown, JJ.
Roger Hotrum pleaded guilty to one count of second degree burglary and three counts of residential burglary under a 2004 and a 2005 cause number. The trial court found the aggravating factor set forth in RCW 9.94A.535(2)(c) and imposed an exceptional sentence. Mr. Hotrum appeals, arguing that this procedure violates his right to a jury trial. We stayed this matter pending our Supreme Court's decision in State v. Alvarado, 164 Wn.2d 556, 192 P.3d 345 (2008). Applying Alvarado, we now affirm Mr. Hotrum's convictions.
FACTS
The case originating as Spokane County Superior Court No. 04-1-01965-7 has been assigned Court of Appeals No. 25428-3-III. Spokane County Superior Court No. 05-1-01687-7 has been assigned Court of Appeals No. 25429-1-III. The two cases were subsequently linked by this court. Although the cases arise out of two different sets of charges, Mr. Hotrum pleaded guilty and was sentenced at the same time on both matters. Given that the cases are factually interdependent and that the pertinent facts, the issues raised on appeal, and the legal arguments made by Mr. Hotrum are substantially the same, this opinion will address both cases together. RAP 3.3(b).
On June 9, 2004, Roger Michael Hotrum was charged with one count of residential burglary in Spokane County No. 04-1-01965-7 (hereafter the "2004 Case").
"1CP" refers the Clerk's Papers in Court of Appeals No. 25428-3-III (the "2004 Case"). Conversely, "2CP" refers to the Clerk's Papers in Court of Appeals No. 25429-1-III (the "2005 Case").
Then, on August 4, 2005, Mr. Hotrum was charged by second amended information in Spokane County Superior Court No. 05-1-01687-7 (hereafter the "2005 Case"), with the following crimes: count I, first degree burglary while armed with a firearm; count II, second degree theft; count III, theft of a firearm; count IV, theft of a firearm; count V, taking a motor vehicle without permission in the second degree; count VI, third degree theft; count VII, second degree burglary; count VIII, third degree theft; count IX, residential burglary; count X, third degree theft; count XI, residential burglary; and count XII, third degree theft. The counts in both cases allegedly stemmed from a three-week crime spree that occurred between April 15 and May 4, 2004.
In the 2005 Case, the State gave notice that it would be seeking exceptional sentences in the amended information. Specifically, on counts I through V, VII, IX, and XI, the State alleged as an aggravating circumstance that "the defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished, as provided by [RCW] 9.94A.535(2)(c)." 2CP at 42-45. On January 26, 2006, the State moved and the court entered an order dismissing without prejudice counts I through VI, VIII, X, and XII. As a result, the only counts remaining were counts VII, IX, and XI.
Pretrial motions were heard on May 18, 2006, which encompassed the 2004 Case and the 2005 Case. During the course of the hearing, Mr. Hotrum requested the court's permission to accept a guilty plea to all the charges and to resolve the matter that day. The State informed the court that if Mr. Hotrum were to plead guilty, he would need to fill out a statement of plea of guilty and that the State was not prepared to go to sentencing that day.
Defense counsel stated that he would support Mr. Hotrum if he wished to plead guilty to all of the counts and that he could prepare the necessary paperwork within the hour. When the court inquired as to whether counsel wanted time to speak with Mr. Hotrum, defense counsel replied that he did not, as it was Mr. Hotrum's choice and that "he's certainly a competent adult and willing to and able to make his own decisions." Report of Proceedings (RP) (May 18, 2006) (2005 Case) at 46. However, defense counsel indicated that he too did not want to go to sentencing that day because of the issue of the potential exceptional sentence.
After a short recess, the May 18 pretrial hearing proceeded as a guilty plea hearing. With regard to the 2005 charges, Mr. Hotrum represented himself on count VII and defense counsel represented Mr. Hotrum on the remaining counts (IX and XI). Mr. Hotrum was also represented by counsel with regard to the 2004 Case, which involved a single count of residential burglary. The State informed the court that none of the offenses charged in either case were considered serious violent offenses. The court proceeded to address the guilty pleas in each case in turn.
Guilty Plea to the 2004 Charge. At the outset, the trial court carefully reviewed Mr. Hotrum's constitutional rights with him, including the rights he would be giving up if he pleaded guilty. The court also reviewed the sentencing consequences of the guilty plea with Mr. Hotrum. The court informed Mr. Hotrum that he had an offender score of 29, resulting in a standard range sentence of 63 to 84 months, and a maximum term of 10 years. Defense counsel interjected that an offender score of 29 was the State's calculation, but agreed that Mr. Hotrum's offender score was at least 9+.
The court explained to Mr. Hotrum that the standard range was based on the crime charged and his criminal history. The court provided Mr. Hotrum with a copy of his criminal history, which Mr. Hotrum signed, along with his attorney and the prosecutor. Mr. Hotrum acknowledged that by signing the document, he was agreeing that information contained in the criminal history was true and correct.
The court informed Mr. Hotrum that the State had given written notice of its intent to seek an exceptional sentence. The State agreed to argue for less than 10 years consecutive on each count in this matter and in the 2005 Case. Mr. Hotrum was advised by the court that it did not have to follow any of the parties' recommendations as to sentencing. The court also advised Mr. Hotrum that it could impose an exceptional sentence above the standard range if he was being sentenced for more than one crime and had an offender score of more than 9.
When asked how he wished to plead on the one count of residential burglary, Mr. Hotrum stated: "I entered an Alford/Newton plea based on the belief that the State wouldn't (sic) prove its case." RP (May 18, 2006) (2005 Case) at 58. Additional questions followed:
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
THE COURT: And based on that belief and for the benefit of this plea agreement you've gone ahead then and under those circumstances entered the plea?
THE DEFENDANT: Yes.
THE COURT: And that plea that you're entering under those circumstances is guilty to Count I, residential burglary?
THE DEFENDANT: Yes.
RP (May 18, 2006) (2005 Case) at 58-59. Mr. Hotrum acknowledged that he was making the plea freely and voluntarily.
The court proceeded to review the portion of the plea statement in which Mr. Hotrum was asked to state in his own words what he did that made him guilty of the crime. The document contained the following handwritten statement: "I believe that the [S]tate could make its case against me at trial (Alford/Newton Plea) but am pleading guilty for the benefit of the plea agreement/bargain." 1CP at 373 (emphasis added). The plea statement in the 2005 Case contained the identical language. The court read the statement out loud, and then asked Mr. Hotrum whether this statement was correct.
Defense counsel announced that the second part of the sentence was written by the prosecutor. The prosecutor responded that the court had to make that finding in order to accept an Alford plea.
The court then inquired whether Mr. Hotrum was making his plea based upon an Alford plea or a Newton plea, and, if so, the court informed Mr. Hotrum that he was subject to the Alford/Newton plea concepts and elements for the benefit of the plea agreement or plea bargain that had been made. Mr. Hotrum then informed the court that he did not believe that there was an agreement. Mr. Hotrum stated: "I just believe I'm making my plea freely before the Court." RP (May 18, 2006) (2005 Case) at 60. However, he subsequently acknowledged that he was making the plea based on the Alford/Newton plea.
After this exchange, the State argued that it would not accept Mr. Hotrum's plea. Mr. Hotrum argued that the court had the discretion to accept his guilty plea, because he was making the plea under no threats, promises, or agreements. Mr. Hotrum expressed that he was before the court to enter a plea with no strings attached. The prosecutor insisted that Mr. Hotrum's plea did not meet the requirements of the Alford decision. She stated: "If Mr. Hotrum is not accepting a benefit of the bargain then he can't enter an Alford plea." RP (May 18, 2006) (2005 Case) at 61.
The court then inquired as to what bargain Mr. Hotrum was benefitting from. The State responded that if this case proceeded to trial, it would ask for 10 years consecutive on each count, to run consecutive to the other cases, for a total possible sentence of 40 years. What the State had offered Mr. Hotrum in exchange for his Alford plea was to recommend a sentence of less than 40 years.
Mr. Hotrum informed the court that it was now his position, based upon what the State was arguing, that he did not want to enter into an Alford/Newton plea. He maintained that there did not have to be an agreement, and that he would simply plead guilty.
At that point, the court asked if defense counsel wished to consult with Mr. Hotrum and if counsel understood what Mr. Hotrum had suggested. Defense counsel understood what Mr. Hotrum was arguing; they had previously discussed that an alternative to the Alford plea was to make a straight plea. The State informed the court that it would accept a guilty plea, but noted that the plea statement would need to be changed. The court struck the disputed language of the Alford/Newton plea that had been written by the prosecutor in the plea statement for both cases, and the court and defense counsel initialed the changes.
After a brief recess and further colloquy, Mr. Hotrum pleaded guilty in the 2004 Case. The court accepted the plea, finding that it was freely and voluntarily made, that Mr. Hotrum understood the charges and consequences of the plea, and that there was a factual basis for the plea.
Guilty Plea to the 2005 Charges. Then, with regard to the 2005 Case, the trial court again reviewed Mr. Hotrum's constitutional rights with him. Mr. Hotrum acknowledged that he understood the charges against him and the elements of the crimes. Regarding the consequences of the plea, the court stated it was applying an offender score of "over nine." RP (May 18, 2006) (2005 Case) at 73. The court stated:
The prosecution has calculated it at 29. My understanding Mr. Carroll [defense counsel] and Mr. Hotrum, that neither of you have actually calculated that so you can't state with any definitive exactness it's correct but agree your offender score is over nine; is that correct, Mr. Hotrum?
RP (May 18, 2006) (2005 Case) at 73. Both Mr. Hotrum and his attorney replied yes.
The court reviewed the standard sentencing range and maximum term of confinement on each count. Mr. Hotrum again acknowledged that his criminal history was correct. The court pointed out that while there were no sentencing recommendations being made by the State, the State had given written notice of its intent to seek an exceptional sentence with regard to the 2005 charges, and there was no plea agreement.
The court repeated its earlier discussion regarding its discretion and authority to impose an exceptional sentence above the standard range. Mr. Hotrum subsequently pleaded guilty to the charges of second degree burglary (count VII) and residential burglary (counts IX and XI). The court accepted Mr. Hotrum's guilty pleas, finding that he had made them intelligently and voluntarily, with an understanding of the charges and the consequences of each of the three pleas.
At the sentencing on August 9, 2006, the court indicated that there were motions pending by Mr. Hotrum and defense counsel and a potential exceptional sentencing issue on the 2005 Case. The State asked the court to impose high-end standard range sentences for each of the three convictions in the 2005 Case. The State also urged the court to run the sentences consecutive to each other, and consecutive to the sentence imposed in the 2004 Case as punishment for each burglary committed.
The State explained that the standard range for residential burglary was 63 to 84 months, and 51 to 68 months for second degree burglary. The State argued that to hold an offender with a score over 9 accountable for each of the crimes he had committed, the court had to impose consecutive sentences under the exceptional sentence statute, RCW 9.94A.535.
Defense counsel acknowledged that under the 2005 version of RCW 9.94A.535, a court could impose an exceptional sentence without a finding of fact by the jury only where the defendant had committed multiple current offenses and the defendant's high offender score resulted in some of the current offenses going unpunished or where the failure to consider the defendant's prior criminal history, which was omitted from the offender score calculation pursuant to RCW 9.94A.525, resulted in a presumptive sentence that was clearly too lenient. However, defense counsel pointed out that there was no stipulation or a jury finding that the sentence in this case was "clearly too lenient." RP (Aug. 9, 2006) at 39. Additionally, defense counsel pointed out that there was no exceptional sentence notice filed in the 2004 Case; rather, the notice applied only to the 2005 charges.
The court ultimately found that there were substantial and compelling reasons to impose an exceptional sentence under an unpunished offenses analysis. With regard to the 2005 Case, the court imposed a sentence of 84 months on each of the two convictions of residential burglary in counts IX and XI. On count VII, second degree burglary, the court imposed 68 months. The court ordered the 2005 sentences to run concurrently and consecutive to the 84-month sentence on the single count of residential burglary in the 2004 Case. The total time of incarceration was 168 months.
Importantly, the judgment and sentence form in the 2004 Case expressly notes that it is a standard range term. The 2005 judgment form states that an exceptional sentence has been imposed and that the judgment runs consecutive to the sentence in the 2004 Case.
On December 8, 2006, the court entered the following findings of fact and conclusions of law regarding the exceptional sentence on the 2005 charges:
FINDINGS OF FACT
1. Defendant's offender score exceeds nine (9).
2. Defendant plead[ed] guilty to three (3) counts of Residential Burglary and one count Second Degree Burglary on May 18, 2006.
3. Based on defendant's offender score exceeding nine, three (3) of the burglary convictions would go unpunished if not for an exceptional sentence.
4. The State is seeking standard range, but consecutive sentences.
CONCLUSIONS OF LAW
The Court finds, beyond a reasonable doubt, that substantial and compelling reasons exist to depart from the guidelines and impose an exceptional sentence herein due to crimes going unpunished based on the defendant's high offender score.
2CP at 928-29.
Defense counsel objected to the State's proposed findings and conclusions, arguing that there needed to be a jury finding or an agreement by the defendant for the court to impose an exceptional sentence. Mr. Hotrum timely filed notices of appeal in both cases on August 16, 2006.
ANALYSIS
Exceptional Sentence. Mr. Hotrum contends that the trial court erred by imposing an exceptional sentence, in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), by ordering that the concurrent standard range sentences for his three convictions in the 2005 Case be served consecutively to the sentence imposed for his conviction in the 2004 Case. In Blakely, the United States Supreme Court held that under the Sixth Amendment, criminal defendants have the right to have a jury determine beyond a reasonable doubt any aggravating fact, other than the fact of a prior conviction, that increases the penalty for a crime above the standard sentencing range. Id. at 301-02.
The central issue presented by this appeal is whether RCW 9.94A.535(2)(c), which provides that a judge, not a jury, determines that a high offender score results in crimes going unpunished, is proper in light of Blakely. A sentencing court's statutory authority under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, is a question of law we review de novo. State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003). Likewise, we review constitutional challenges de novo. City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004).
The Washington Supreme Court recently resolved this issue in Alvarado. In that case, Mr. Alvarado was convicted at trial of multiple crimes and had a high offender score. Alvarado, 164 Wn.2d at 559. The trial court, concluding that some of his current offenses would go unpunished within the meaning of RCW 9.94A.535(2)(c), imposed an exceptional sentence of 120 months for count I (residential burglary), to run concurrently with the standard range sentences on the remaining counts. Alvarado, 164 Wn.2d at 559. The Alvarado court affirmed the exceptional sentence for residential burglary, holding that the trial court properly applied RCW 9.94A.535(2)(c) in concluding that some of Mr. Alvarado's offenses would go unpunished absent the exceptional sentence and that application of the statute did not violate his Sixth Amendment right to a jury trial under Blakely. Alvarado, 164 Wn.2d at 559.
The SRA, as expressed in RCW 9.94A.589(1)(a), provides, as a general rule, that when a person is sentenced on multiple counts at the same time, the sentences for those "current offenses" are to be served concurrently. State v. Yates, 161 Wn.2d 714, 781-82, 168 P.3d 359 (2007). Importantly, RCW 9.94A.589(1)(a) goes on to provide that consecutive sentences "may only be imposed under the exceptional sentence provisions of RCW 9.94A.535." A sentencing court may impose a sentence outside the standard range only if "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535.
In 2005, the legislature created a nonexclusive list of aggravating circumstances that constitute substantial and compelling reasons for an upward departure from the sentencing guidelines. RCW 9.94A.535(2)(c) sets out when an exceptional sentence may be imposed by a court without findings of fact by a jury. The statute provides, in relevant part:
(2) Aggravating Circumstances — Considered and Imposed by the Court
The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
. . . .
(c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
RCW 9.94A.535(2)(c) (emphasis added). As the court in Alvarado noted, a defendant's standard range sentence reaches its maximum limit at an offender score of 9. Alvarado, 164 Wn.2d at 561 (citing RCW 9.94A.510). The " Blakely-fix" legislation, took effect April 15, 2005, and applies to all cases where guilty pleas were entered after that date. Laws of 2005, ch. 68, §§ 1, 7; see State v. Pillatos, 159 Wn.2d 459, 470, 150 P.3d 1130 (2007).
The former version of this aggravating factor stated than an exceptional sentence could be imposed when: "The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010." Former RCW 9.94A.535(2)(i) (2003) (emphasis added). After Blakely, our Supreme Court, overruling some of its earlier decisions, held that former RCW 9.94A.535(2)(i)'s "clearly too lenient" language required a subjective, factual finding that must be made by a jury. Alvarado, 164 Wn.2d at 563-64.
The court's decision in Alvarado is controlling. In Alvarado, the defendant was charged with six felonies, which included two counts of residential burglary, and two gross misdemeanors. Alvarado, 164 Wn.2d at 559. The State determined at sentencing that Mr. Alvarado's offender score was 21, based upon his current offenses and lengthy criminal history. Id. at 560. In light of Mr. Alvarado's high offender score and the fact that he had committed multiple current offenses, the trial court concluded five of his current offenses would have gone unpunished if a standard range sentence on count I had been imposed. Id. As in the current case, Mr. Alvarado sought reversal of his exceptional sentence arguing, in part, that the sentence was imposed in violation of his right to a jury trial.
In analyzing the issue, the Alvarado court noted that in 2005 — before State v. Hughes was decided — the legislature amended chapter 9.94A RCW to comply with the ruling in Blakely. Alvarado, 164 Wn.2d at 564 (citing Laws of 2005, ch. 68, § 1). The court noted that Division One of the Court of Appeals previously addressed the issue of whether the 2005 amendments in RCW 9.94A.535(2) met the Blakely requirement in State v. Newlun, 142 Wn. App. 730, 737, 176 P.3d 529 (2008). Alvarado, 164 Wn.2d at 565.
State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
In Newlun, Division One held that RCW 9.94A.535(2)(c) did not violate the Sixth Amendment because the determination of whether an offense goes unpunished under that provision "requires simply objective mathematical application of RCW 9.94A.510's sentencing grid to the current offenses, rather than the subjective application of factors under the former 'clearly too lenient' language." Alvarado, 164 Wn.2d at 565 (quoting Newlun, 142 Wn. App. at 742-43). As such, RCW 9.94A.535(2)(c) does not require a judicial factual finding that the presumptive sentence is too lenient, and the sentencing court does not look beyond those facts reflected in the jury verdict or admitted by the defendant. Alvarado, 164 Wn.2d at 566 (quoting Newlun, 142 Wn. App. at 743). The court in Newlun concluded that "the sentencing court need only find the fact of the defendant's convictions in order to be justified in imposing an exceptional sentence pursuant to RCW 9.94A.535(2)(c)." Newlun, 142 Wn. App. at 742.
Significantly, the Newlun court distinguished those cases dealing with former RCW 9.94A.535(2)(i) and other subsections of the 2005 amended version of RCW 9.94A.535(2) which contained the problematic "clearly too lenient" language. Newlun, 142 Wn. App. at 742-44. The court clarified that the 2005 amended version of RCW 9.94A.535(2)(c)'s "current offenses going unpunished" language, in contrast, does not allow the trial court to engage in fact finding. Newlun, 142 Wn. App. at 742-44. The court concluded that the "core concern of the Blakely court, as discussed in Hughes . . . — the imposition of exceptional sentences based on judicial factual findings extending beyond the fact of the defendant's criminal convictions — is not implicated by the current version of RCW 9.94A.535(2)(c)." Newlun, 142 Wn. App. at 742.
Ultimately, the Supreme Court in Alvarado found the analysis in Newlun persuasive, "insofar as it recognizes that the only factors the trial court relies upon in imposing an exceptional sentence under RCW 9.94A.535(2)(c) are based on criminal history and the jury's verdict on the current convictions." Alvarado, 164 Wn.2d at 566-67. And, as the court held, "[b]oth fall under the Blakely prior convictions exception, as no judicial fact finding is involved." Id. at 567.
Applying Alvarado, Mr. Hotrum's exceptional sentence pursuant to RCW 9.94A.535(2)(c) does not violate his Sixth Amendment right to a jury trial as defined in Blakely.
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds for review (SAG), Mr. Hotrum raises in excess of 27 issues for further review. His pro se statement is based in large part on arguments he made to the court at sentencing. The issues Mr. Hotrum raises can be summarized into seven major contentions. He argues that the trial court erred by: (1) improperly calculating his offender score; (2) imposing an exceptional sentence; (3) refusing to appoint substitute counsel to prepare a CrR 4.2(f) motion to withdraw his guilty plea; (4) finding that his guilty plea was entered knowingly, intelligently, and voluntarily; (5) refusing to order discovery and conduct an evidentiary hearing on his claim of vindictive prosecution; (6) imposing court costs and fees without making findings as to his ability to pay; and (7) imposing mandatory interest in his legal financial obligations.
#1: Offender Score Calculation. At the plea hearing, Mr. Hotrum stipulated to having an offender score in excess of 9. However, he raised challenges to the scoring of some of his prior convictions at sentencing. Now in his statement of additional grounds, Mr. Hotrum contends that the trial court erred by failing to properly calculate his offender score. Mr. Hotrum maintains that his correct offender score is less than 9.
A. Validity of Prior Convictions. Mr. Hotrum claims that the six convictions resulting from a series of crimes he committed in 1989 are facially invalid and cannot be used in calculating his offender score. Mr. Hotrum asserts that the judgment and sentence does not reflect either representation by counsel or waiver. He relies on State v. Marsh, 47 Wn. App. 291, 734 P.2d 545 (1987) for the proposition that such convictions are presumptively invalid and their use, in establishing the sentencing range or for any other purpose, is unconstitutional.
Mr. Hotrum relies on Marsh, but this decision was overruled in In re Personal Restraint of Williams, 111 Wn.2d 353, 368, 759 P.2d 436 (1988). There, the court held that the constitutional validity of prior convictions need not be affirmatively proved by the State at an SRA sentencing proceeding; rather, the defendant bears the burden of establishing that his or her prior convictions were unconstitutionally obtained. Id. Even if the 1989 judgment form showed that Mr. Hotrum was not represented by counsel, it did not show that he was unconstitutionally deprived of counsel. Mr. Hotrum's remedy was to appeal the 1989 convictions in a timely manner. Any such challenge is foreclosed by RCW 10.73.090. Mr. Hotrum's claim is without merit.
B. Community Custody Point. Mr. Hotrum next argues that the trial court erred in finding that he was under community custody at the time he committed the new offenses. A sentencing court may add one point to an offender score if it finds by a preponderance of evidence that the defendant was under community custody when he committed the current offense. State v. Jones, 159 Wn.2d 231, 236-37, 149 P.3d 636 (2006) (citing former RCW 9.94A.525(17) (2002)). This argument is mooted by the stipulation that Mr. Hotrum's offender score was in excess of 9.
C. Same Criminal Conduct. Mr. Hotrum also claims that the trial court failed to perform a same criminal conduct analysis and argues that his convictions for robbery and unlawful possession of a firearm from 1997 encompassed the same criminal conduct.
This claim is also without merit.
RCW 9.94A.589(1)(a) provides that if two current offenses encompass the same criminal conduct, they count as one point in calculating the defendant's offender score. RCW 9.94A.589(1)(a); State v. Haddock, 141 Wn.2d 103, 108, 3 P.3d 733 (2000). The same criminal conduct rule requires two or more crimes to involve the same criminal intent, the same time and place, and the same victim. RCW 9.94A.589(1)(a). Significantly, if one of these elements is missing, the offenses must be counted individually toward the offender score. Haddock, 141 Wn.2d at 110.
Here, Mr. Hotrum's convictions for robbery and unlawful possession of a firearm did not encompass the "same criminal conduct" for sentencing purposes, because the victim of each crime differed. The victim of the offense of unlawful possession of a firearm was the general public, while the victim of the robbery was the property owner from whom Mr. Hotrum stole. Haddock, 141 Wn.2d at 110-11; State v. Webb, 112 Wn. App. 618, 624, 50 P.3d 654 (2002). Consequently, the different victims prevented the 1997 offenses from being considered the same criminal conduct.
D. "Wash-out" Convictions. Mr. Hotrum also contends that all of his convictions from the 1980s "washed out" of the offender score calculation. This argument is foreclosed by the stipulation to the offender score. It is also without merit. As the prosecutor's recitation of Mr. Hotrum's release dates and corresponding offenses shows, there were — at most — a few months spent in the community without committing new offenses.
Former RCW 9.94A.525(2) (2002) provides that class A felony convictions shall always be included in the offender score. Additionally, the statute provides:
Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction. Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
Former RCW 9.94A.525(2).
Here, Mr. Hotrum's criminal history in his judgment and sentence includes convictions for: two crimes in 1986; three crimes in 1987; eight crimes in 1989, which included one class A felony, six class B felonies, and one class C felony; and two crimes in 1997. The only theoretical argument for washing out offenses would have involved his conviction for attempted second degree burglary, a class C felony, and the only potential "wash out" time would have been the nearly eight years between his 1989 crime sprees and the 1997 offenses.
However, as the prosecutor explained at sentencing, there was only a brief time between release on the 1989 crimes and the new 1997 offenses. Mr. Hotrum has never sworn, or otherwise put fAorth, evidence alleging that he was out of custody for five years before committing the 1997 crimes. In fact, the prosecutor informed the trial court that Mr. Hotrum was not released from confinement on the multiple 1989 burglaries until 1996, only to reoffend in June 1997. According to the prosecutor's calculations, only six months elapsed between release from confinement and reoffending. Therefore, under former RCW 9.94A.525(2), each of Mr. Hotrum's previous convictions were properly included in his offender score and are not "washed out."
E. Evidentiary Hearing. Mr. Hotrum also contends that the trial court erred by failing to hold an evidentiary hearing to resolve the disputed facts. The record shows that at sentencing, Mr. Hotrum objected to his criminal history on two of the bases addressed above. Mr. Hotrum specifically objected to the use of the prior convictions, which he argued were facially invalid, and to the scoring of multiple offenses, which he argued were the same criminal conduct.
The State presented certified copies of Mr. Hotrum's judgment and sentences and reviewed Mr. Hotrum's criminal history at length during the hearing. The prosecutor addressed Mr. Hotrum's same criminal conduct argument and clarified how she had arrived at his offender score. The prosecutor pointed out that at the time Mr. Hotrum entered his guilty plea, he signed his understanding of criminal history without objection. There was no need for an evidentiary hearing on the issues raised by Mr. Hotrum.
#2: Exceptional Sentence Issues. Mr. Hotrum raises multiple challenges to his exceptional sentence. In addition to raising substantially the same issues as his attorney on appeal, Mr. Hotrum further contends that: (1) RCW 9.94A.530(3) in conjunction with the mandatory language of RCW 9.94A.537 conflicts with RCW 9.94A.535(2)(c) and the rule of lenity requires the resolution of sentencing ambiguities in his favor; (2) the retroactive application of RCW 9.94A.535(2)(c) violates due process because it deprived him of a substantive right; (3) the State violated the Fourteenth Amendment's equal protection clause because it does not evenhandedly apply RCW 9.94A.535(2)(c) to similarly situated offenders; (4) the application of RCW 9.94A.535(2)(c) violates the ex post facto clause of the United States and Washington Constitutions; and (5) RCW 10.01.040 bars the application of RCW 9.94A.535(2)(c).
Mr. Hotrum provides no credible argument in support of his contentions. The majority of Mr. Hotrum's arguments were rejected in Pillatos. In Pillatos, our Supreme Court made clear that the "relevant portions of Laws of 2005, chapter 68 are remedial law, as they relate only to procedures and do not affect substantive or vested rights." Pillatos, 159 Wn.2d at 473. As such, the amended statutes properly applied "to all cases where trials have not begun or where pleas have not been accepted" as of the effective date of the legislation on April 15, 2005. Id. at 474. Given that the exceptional sentence was addressed above, we need not consider this further.
#3: Substitution of Counsel. Next, Mr. Hotrum contends that the trial court failed to perform an adequate inquiry into his allegations concerning a potential conflict of interest and to appoint new counsel to prepare a CrR 4.2(f) motion.
On June 2, 2006, subsequent to the guilty plea hearing, but prior to sentencing, Mr. Hotrum filed a pro se motion seeking to withdraw his guilty pleas. He requested the assistance of substitute counsel as part of the motion. Mr. Hotrum contends that once the trial court was faced with a claim of a potential conflict of interest, it was constitutionally required to conduct a factual inquiry into his assertions. He relies on State v. Lopez, where Division Three of the Court of Appeals held that summarily denying a motion for substitution of counsel, without inquiry into reasons for the defendant's dissatisfaction, constitutes an abuse of discretion. State v. Lopez, 79 Wn. App. 755, 767, 904 P.2d 1179 (1995). Mr. Hotrum argues that the court's failure to inquire into his reasons for seeking substitution of counsel violates due process and his Sixth Amendment right to conflict free counsel.
This case is controlled by the decision in State v. Dhaliwal, 150 Wn.2d 559, 79 P.3d 432 (2003). There, the defendant had been represented at trial by an attorney who simultaneously and previously represented some of the witnesses on both sides of the criminal case in a civil matter. Id. at 564. The attorney had also represented some of the witnesses in an earlier criminal case in which Mr. Dhaliwal had been a co-defendant. Id. at 565. On appeal, Mr. Dhaliwal claimed that his trial counsel had a conflict of interest and that the trial court's failure to properly inquire about the conflict required reversal of his conviction. Id. at 564.
Subsequently, the Court of Appeals, relying on the United States Supreme Court's decision in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), held that reversal was not required unless the defendant could demonstrate not only that his lawyer had an actual conflict of interest, but also that the lawyer's performance at trial was adversely affected by that conflict. Dhaliwal, 150 Wn.2d at 565-66. The Court of Appeals concluded that Mr. Dhaliwal was not automatically entitled to reversal based on the court's failure to inquire fully into the possible conflict. Id. at 568.
On review of that decision, the Washington Supreme Court agreed that "under Mickens reversal is not mandated when a trial court knows of a potential conflict but fails to inquire." Id. at 571. However, the court went on to hold that "a defendant asserting a conflict of interest on the part of his or her counsel need only show that a conflict adversely affected the attorney's performance to show a violation of his or her Sixth Amendment right." Id.
Here, Mr. Hotrum made no such showing. Rather, his vague "numerous factual issues will be raised" allegation failed to show that his attorney's performance was negatively affected by any alleged conflict. 2CP at 487. At most, this allegation suggested that Mr. Hotrum wanted different counsel due to a disagreement about procedures and tactics up to that point. The allegation fell short of showing a conflict of interest that would have triggered a need for the court to inquire. The trial court properly declined to go forward.
#4: Guilty Plea. Mr. Hotrum raises several claims in an attempt to void his guilty pleas. He contends that his pleas are constitutionally invalid because: (1) the trial court failed to inform him of a direct consequence of his plea, in that mandatory interest would be imposed as part of his punishment, (2) the denial of his Sixth Amendment right to self-representation on count IX renders the guilty plea on that count involuntary, (3) there is an insufficient factual basis to support the plea on count IX, and (4) the record is silent as to his understanding of the law in relation to the facts.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). Likewise, CrR 4.2(d) mandates that the trial court not accept a guilty plea without first determining that a criminal defendant has entered into the plea voluntarily, competently, and with an understanding of the nature of the charge and the consequences of the plea. A court must allow a defendant to withdraw a guilty plea whenever "necessary to correct a manifest injustice." CrR 4.2(f); see State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). A manifest injustice is one "that is obvious, directly observable, overt, not obscure." Taylor, 83 Wn.2d at 596.
A written plea statement in compliance with CrR 4.2(g) is prima facie evidence that the plea is voluntary when the defendant acknowledges reading and understanding the written statement and that the contents of the statement are true. State v. Perez, 33 Wn. App. 258, 261, 654 P.2d 708 (1982). And when the trial court has inquired into the voluntariness of the plea on the record, as it did here, the presumption of voluntariness is "well nigh irrefutable." Id. at 262.
A. Mandatory Interest. Mr. Hotrum's first contention is that interest is a direct consequence of the guilty pleas and that he needed to be informed of such prior to pleading guilty. There is no authority supporting Mr. Hotrum's assertion. For a plea to be knowing and voluntary, a criminal defendant must be informed of all direct consequences of his plea. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). However, "[a] defendant need not be informed of all possible consequences of a plea but rather only direct consequences." Id. A direct consequence is one which "'represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" Id. (quoting State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). Sentencing conditions — where any effect on punishment flows not from the guilty plea itself but from additional proceedings — cannot qualify as immediate. Id. at 285.
While interest in legal financial obligations is mandatory, that does not mean that it is a direct consequence of pleading guilty. That is so, in part, because the imposition of the underlying financial obligations is largely discretionary with the trial court. And, more importantly, RCW 10.82.090(2) expressly provides that "[t]he court may, on motion by the offender, following the offender's release from total confinement, reduce or waive the interest on legal financial obligations levied as a result of a criminal conviction." In short, interest is a potential and, at most, indirect consequence of pleading guilty.
B. Faretta Violation. Next, Mr. Hotrum complains that he was denied the right to represent himself on count IX, in violation of Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The United States Supreme Court held in Faretta that a defendant has a constitutional right under the Sixth and Fourteenth Amendments to represent himself or herself in state criminal proceedings without the assistance of counsel. Id. at 807.
Mr. Hotrum filed a motion to sever count IX from count XI and to represent himself on count IX. At the hearing on the motion, Mr. Hotrum agreed with the trial court that if he wanted to represent himself on only one of the two counts, the counts would have to be severed. The motion to sever was denied and Mr. Hotrum does not challenge that decision. Thereafter, Mr. Hotrum did not assert the right to self-representation.
Count VII was previously severed and, as noted in the facts, Mr. Hotrum represented himself on that count.
Washington has consistently rejected the idea that a criminal defendant can be represented by counsel and also represent himself or herself. State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987); State v. DeWeese, 117 Wn.2d 369, 378, 816 P.2d 1 (1991); State v. Hightower, 36 Wn. App. 536, 541, 676 P.2d 1016 (1984). As our Supreme Court explained: "There is . . . no Sixth Amendment right to 'hybrid representation,' whereby a defendant serves as cocounsel with his attorney." Bebb, 108 Wn.2d at 524.
Here, Mr. Hotrum failed to assert the right to represent himself en toto, which is the essence of the Faretta right. Consequently, Mr. Hotrum had no right to partial representation on some of the counts against him. Mr. Hotrum's claim that the trial court erred by rejecting his request for self-representation on count IX is without merit.
C. Factual Basis. Mr. Hotrum further complains that there was no factual basis for his guilty plea to residential burglary in count IX. He mistakenly cites to his counsel's comments in the course of an earlier motion concerning the relationship between that count and an earlier Pend Oreille County prosecution. Counsel's comments are irrelevant. The issue is whether there was a factual basis for the plea. As the plea statement shows, instead of stating what he did that made him guilty of the crime, Mr. Hotrum told the trial court that it could consider the police reports and affidavit of probable cause to establish a factual basis for the plea. The court did so. Mr. Hotrum does not address what the affidavit of probable cause contained, nor does he make any argument why the affidavit is insufficient. Accordingly, his argument is without merit.
D. Understanding of the Law. Lastly, Mr. Hotrum claims that "because the record is silent as to [his] assessment of the law in relation to the facts" both of the guilty pleas should be rendered involuntary. SAG at 41. Importantly, Mr. Hotrum never argues that he failed to understand the law in relation to the facts, only that the record is "silent." SAG at 41. Mr. Hotrum's argument is without merit.
At the guilty plea hearing, Mr. Hotrum acknowledged that he understood the elements of the crimes and their relation to the facts of the incident. Nothing more is required. As with his previous issue, Mr. Hotrum fails to explain what defect there is in the record or what he did not allegedly understand.
#5: Vindictive Prosecution. Next, in what is nothing more than an expanded version of his equal protection argument, Mr. Hotrum contends that he is the victim of vindictive and selective prosecution. Specifically, he claims that the State brought the current charges against him in retaliation after he prevailed against the State in a related prosecution. Mr. Hotrum further argues that the State's motivation behind the 12-count information was made clear once the State dismissed nine of the charges because it lacked sufficient evidence to prosecute those charges. Mr. Hotrum appears to suggest that the State overcharged in an attempt to pressure him into pleading guilty. The record does not support Mr. Hotrum's claim.
The term "prosecutorial vindictiveness" describes the actions of the government when it "'acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights.'" State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)). The action is vindictive only "'if designed to penalize a defendant for invoking legally protected rights.'" Id. Prosecutorial vindictiveness may be actual or presumptive. Id. "A presumption of vindictiveness arises when a defendant can prove that 'all of the circumstances, when taken together, support a realistic likelihood of vindictiveness.'" Id. (quoting Meyer, 810 F.2d at 1246).
The record shows that the State moved to dismiss nine of the charges in the 2005 Case on January 26, 2006. It was not until a pretrial hearing, which occurred months later on May 18, 2006, that Mr. Hotrum announced to the court that he wanted to plead guilty on all counts "to avoid the media trying my case." RP (May 18, 2006) (2005 Case) at 45. There is no evidence that the State overcharged to pressure Mr. Hotrum to plead guilty, or to penalize him for invoking a legally-protected right. Moreover, even the filing of additional charges after a defendant refuses to plead guilty does not by itself give rise to a presumption of vindictiveness. Korum, 157 Wn.2d at 630 (holding that the filing of additional charges after a defendant withdrew his guilty plea, without additional facts, did not raise a presumption of vindictiveness). A presumption of prosecutorial vindictiveness is not warranted in this case. Given that, the trial court did not err by denying Mr. Hotrum an evidentiary hearing.
#6: Assessment of Costs. Mr. Hotrum next contends that the trial court erred by including costs and other legal financial obligations as part of his judgment and sentence in both the 2004 and 2005 cases without conducting an inquiry or setting forth findings as to his ability to pay. Statutes are presumed to be constitutional and a party challenging the constitutionality of a statute has the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Blank, 131 Wn.2d 230, 235, 930 P.2d 1213 (1997).
The Washington Supreme Court previously rejected this same argument in State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992). Contrary to Mr. Hotrum's assertion, the statutory scheme does not require a trial court to enter formal, specific findings regarding a defendant's ability to pay when assessing costs. Id. As the court in Curry reiterated, it is not permissible to sanction offenders who lack the ability to pay. Id. A show cause or contempt hearing must be held before sanctions for nonpayment can be imposed. Blank, 131 Wn.2d at 241. Moreover, sanctions can only be imposed for intentional or willful refusal to pay. Id. Finally, ability to pay is determined at the time collection is sought, rather than at the time the monetary obligation is imposed. Id. at 242.
In Curry, the court concluded that the statute's directive regarding ability to pay and procedures for modification of the financial obligation for a defendant ultimately unable to pay provide sufficient protections from a trial court's abuse of discretion. Curry, 118 Wn.2d at 916. Mr. Hotrum fails to show error.
#7: Mandatory Interest. Lastly, Mr. Hotrum contends that RCW 10.82.090(1), which authorizes a trial court to impose interest on "financial obligations imposed in a judgment," is unconstitutional under Apprendi and Blakely. He claims that because mandatory interest is equivalent to punishment, it requires jury fact finding in order to be constitutionally imposed.
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Mr. Hotrum's reliance on Apprendi and Blakely is misplaced. Under Apprendi, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Blakely, the Court clarified Apprendi, and held that the statutory maximum means the maximum sentence that a judge can impose " solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303.
RCW 10.82.090(1) unambiguously requires that "financial obligations imposed in a judgment shall bear interest from the date of the judgment until payment, at the rate applicable to civil judgments." Because the interest is mandatory and imposed by statute, it is, therefore, not a punishment that results from judicial fact finding. State v. Cunningham, 116 Wn. App. 946, 954, 69 P.3d 358 (2003) (citing State v. Claypool, 111 Wn. App. 473, 475, 45 P.3d 609 (2002)). Accordingly, Blakely is not implicated. Mr. Hotrum provides no basis for finding the statute unconstitutional.
We affirm Mr. Hotrum's convictions for second degree burglary and three counts of residential burglary.
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.
BROWN and SWEENEY, JJ., concur.