Opinion
66716-5-I 66717-3-I 66718-1-I 66719-0-I
11-13-2012
STATE OF WASHINGTON, Respondent, v. AARON ANDRE JOHNSON, JR., Appellant.
UNPUBLISHED OPINION
Lau, J.
In these consolidated cases, Aaron Johnson appeals the 156-month exceptional sentence imposed after he pleaded guilty to nine felonies and one misdemeanor. Johnson argues for the first time on appeal that the sentencing court committed reversible error "by relying on 'uncharged offenses' as a basis for the exceptional sentence." Appellant's Br. at 1. Finding no error, we affirm.
FACTS
On September 16, 2010, Aaron Johnson pleaded guilty to nine felonies and one misdemeanor under four different King County cause numbers. He stipulated to the "real facts" contained in the individual certifications for determination of probable cause for each charge. Johnson had an extensive criminal history, which together with his current offenses, rendered an offender score of 22 or 23. In each of his plea agreements, Johnson acknowledged that the he was "aware that the State [would] seek an exceptional sentence of 13 years pursuant to RCW 9.94A.535(2)(c)." Report of Proceedings (RP) (Sept. 16, 2010) at 12-13.
Johnson pleaded guilty to one count of first degree theft under cause number 09-1-06842-5, two counts of first degree promoting prostitution under cause number 09-1-05920-5, one count of first degree malicious mischief, one count of second degree attempted theft, one count of second degree malicious mischief, and one count of first degree theft under cause number 09-1-06937-5, and one count of theft of a firearm and two counts of second degree identity theft under cause number 09-1-07228-7. The State amended charges and dropped charges in at least two of the cases.
Johnson's offender score is variously referred to in the record as 22 or 23. The precise number makes no difference for purposes of this opinion.
At the sentencing hearing, the State sought an exceptional sentence based on Johnson's criminal history and multiple current offenses. RP (Dec. 3, 2010) at 4; RP (Jan. 7, 2011) at 13; CP 83. Defense counsel agreed that Johnson's offender score was "certainly well over a nine" and acknowledged that Johnson "[got] off too easy" for his past crimes. RP (Jan. 7, 2011) at 7, 19. Johnson addressed the court and stated, "I understand [the prosecutor is] seeking an exceptional. I can't say that if I was the senior deputy prosecutor I wouldn't do the same thing . . . ." RP (Jan. 7, 2011) at 23. The sentencing court analyzed Johnson's criminal record before imposing its sentence:
Now, I look at your criminal history for a lot of things. First of all, even if I don't consider the points of the other current offenses, we're talking about a score of 13, very high score for a man who's only 33 years old. I also went back and looked at the types of sentences you've received over the years, all the way back to your juvenile years, and I do that in part to educate myself to make sure that I think about what could someone do differently in juvenile court that might prevent the kind of life of crime that you've spent, and I come away from looking at your criminal history, thinking that you need a really good chunk of time in JRA that you never really got.
In just hearing you speak, I can see that you are a very bright young man and that you have alternatives. I certainly hope that in the future you will pursue those alternatives. But I recognize that each of the three cases that Ms. Love talked about really represented a fraction of what you were actually doing at the time, as set forth in the various certifications for determination of probable cause, they're just sort of like a snapshot of what was happening, instead of a real reflection of just how many lives you were touching.
And Ms. Young talked about how you weren't thinking of others, and that is absolutely true, whether it's the 13-year-old or whether it's all of these people. I mean, losing a laptop can be absolutely devastating to someone's life, not just their business, it can be - - you know, it could be their - - I had a juror last week talk about how their only copy of their masters thesis was on their laptop when it was stolen. It can be utterly devastating to people. Even though it didn't involve force or violence, no blood was shed, I have to take those kinds of crimes very seriously.
And it is very rare that I see a defendant who has as many points, not counting current offenses, over such a long period of time.
And so I think that in this case the State has established substantial and compelling reasons to justify an exceptional sentence up. I'm basing that on the extraordinarily high offender score, keeping in mind all of the uncharged offenses here, and I think that the sentence that the State proposes is very fair, in light of - - in light of all of those factors.RP (Jan. 7, 2011) at 25-26 (emphasis added).
The court sentenced Johnson to a total of 156 months of confinement, consisting of a 108-month exceptional sentence on count II under cause number 09-1-05920-5 (first degree promoting prostitution) to run consecutive to the 48 months imposed on counts I and IV under cause number 09-1-06937-5 (first degree malicious mischief and first degree theft). On all other counts, the sentencing court imposed standard range sentences to run concurrent with each other. When asked to clarify its reasons for imposing the exceptional sentence, the court stated, "[B]ecause [Johnson's] offender score is 22, for all the reasons I placed on the record." RP (Jan. 7, 2011) at 33.
The court also entered written findings justifying the exceptional sentence: "[The] defendant's current criminal history would result in a standard range sentence that does not recognize and reflect the defendant's offenses and current [and] past criminal history." CP 86. Johnson did not object to either the oral or the written findings regarding the exceptional sentence.
ANALYSIS
For the first time on appeal, Johnson argues, "The sentencing court erred by relying on 'uncharged offenses' as a basis for the exceptional sentence." Appellant's Br. at 1. The State responds that (1) Johnson waived this argument by failing to raise it below and (2) the sentencing court's imposition of an exceptional sentence is justified even without reference to the uncharged crimes.
Regarding waiver, Johnson failed to raise his uncharged offenses challenge below, and the sentencing court had no opportunity to address it. Johnson does not argue that this was a manifest error affecting a constitutional right that falls within the RAP 2.5(a)(3) exception to the general rule requiring preservation of issues for appeal. Accordingly, we can decline to consider this argument. RAP 2.5(a); State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011).
Even if Johnson had preserved this issue for appeal, his challenge lacks merit. In order to reverse an exceptional sentence, we must find that (1) under a clearly erroneous standard, there is insufficient evidence in the record to support the reasons for imposing an exceptional sentence; (2) under a de novo review standard, the reasons do not justify a departure from the standard range; or (3) under an abuse of discretion standard, the sentence is clearly excessive. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005); RCW 9.94A.585(4). Our focus here is on the second inquiry.Thus, we review de novo whether the sentencing court's reasoning justifies the exceptional sentence. A remand for resentencing may be necessary if the court placed significant weight on inappropriate factors in imposing its exceptional sentence. State v. Bourgeois, 72 Wn.App. 650, 664, 866 P.2d 43 (1994).
Johnson neither challenges the sufficiency of the record nor argues that his sentence was clearly excessive.
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 RCW 9.94A.535, the legislature created a list of aggravating circumstances that constitute substantial and compelling reasons for an upward departure from the sentencing guidelines. One of those circumstances is when "[t]he 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); State v. Newlum, 142 Wn.App. 730, 732, 176 P.3d 529 (2008). A defendant's standard range sentence reaches its maximum limit at an offender score of 9. State v. Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345 (2008) (citing RCW 9.94A.510). Thus, when a defendant's offender score is above 9, some current offenses will go unpunished if the court does not impose an exceptional sentence. State v. Bobenhouse, 166 Wn.2d 881, 896, 214 P.3d 907 (2009).
Johnson claims that the sentencing court based its exceptional sentence on an impermissible factor because it mentioned "uncharged offenses" in its oral decision. His argument fails for two reasons. First, nothing indicates that the court relied on uncharged offenses when imposing its sentence. A trial court's oral opinion "is not itself a finding of fact." State v. Williamson, 72 Wn.App. 619, 623, 866 P.2d 41 (1994). An oral decision "has no binding or final effect unless it is formally incorporated into findings of fact, conclusions of law and judgment." State v. Kilburn, 151 Wn.2d 36, 39 n.1, 84 P.3d 1215 (2004). Because the court did not incorporate its oral findings into its written judgment and sentence and because its written findings do not mention uncharged offenses, Johnson's claim fails. State v. Reynolds, 80 Wn.App. 851, 860, 912 P.2d 494 (1996) (finding without merit defendant's assertion that an exceptional sentence was based on unproven inferences where the defendant based this claim on certain oral comments made by the court: "The court did not include those statements in its written findings, and [we] will not further consider this claim.").
Johnson argues that the word "offenses" in the court's written findings includes the subset of the orally stated "uncharged offenses." Appellant's Br. at 7. This is speculation supported by neither authority nor the record. Such speculation is insufficient to establish prejudice or manifest error. See State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (in determining whether alleged error had identifiable consequences, "the trial record must be sufficient to determine the merits of the claim" and if the necessary facts are not in the record, the error is not manifest); State v. Sterling, 23 Wn.App. 171, 177, 596 P.2d 1082 (1979) ("speculation or possibility is insufficient to show prejudice").
Second, even if the court relied in part on uncharged offenses in imposing its exceptional sentence, "a reviewing court can nonetheless affirm the sentence if the principal justifications relied on by the trial court are proper and the reviewing court is confident that the trial court, on remand, would impose the same sentence even without considering the improper justifications." In re Pers. Restraint of George, 52 Wn.App. 135, 148-49, 758 P.2d 13 (1988). Here, in imposing the exceptional sentence, the sentencing court focused on Johnson's high offender score:
Johnson cites State v. Ferguson, 142 Wn.2d 631, 15 P.3d 1271 (2001), and State v. Collins, 69 Wn.App. 110, 115, 847 P.3d 528 (1993), for the proposition that remand for resentencing is the appropriate remedy when a "court imposes an exceptional sentence in part on proper grounds and in part on improper grounds . . . ." Appellant's Br. at 9. He misstates the law. In Ferguson, the trial court used an element of the charged offense as the sole basis for imposing an exceptional sentence. Ferguson, 142 Wn.2d at 647. Our Supreme Court held, "An element of the charged offense may not be used to justify an exceptional sentence. An exceptional sentence is not justified by mere reference to the very facts which constituted the elements of the offense proven at trial." Ferguson, 142 Wn.2d at 648 (footnote omitted).
In Collins, the trial court was "heavily influenced" by the defendant's uncharged offenses when it imposed an exceptional sentence. Collins, 69 Wn.App. at 115. Division Three of this court recognized that "[a] remand for resentencing is necessary 'when the trial court places significant weight on an inappropriate factor.'" Collins, 69 Wn.App. at 115 (quoting State v. Post, 118 Wn.2d 596, 616, 826 P.2d 172, 837 P.2d 599 (1992)). The court remanded for resentencing because "[t]he [trial] court's consideration of the uncharged offenses permeated its findings." Collins, 69 Wn.App. at 115 (emphasis added). Neither case announced a rule requiring remand when a sentence is based in part on improper grounds. We adhere to the well-settled rule discussed above, allowing us to affirm if we are confident the sentencing court would impose the same sentence without the improper grounds. George, 52 Wn.App. at 148-49.
And it is very rare that I see a defendant who has as many points, not counting current offenses, over such a long period of time.
And so I think that in this case the State has established substantial and compelling reasons to justify an exceptional sentence up. I'm basing that on the extraordinarily high offender score, keeping in mind all of the uncharged offenses here, and I think that the sentence that the State proposes is very fair, in light of—in light of all of those factors.RP (Jan. 7, 2011) at 26.
The court's written findings similarly reflect that given Johnson's criminal history, the multitude of current offenses would go unpunished with a standard range sentence: "[Johnson's] current criminal history would result in a standard range sentence that does not recognize and reflect the defendant's offenses and current [and] past criminal history." Johnson's offender score was 22 or 23. If the court had imposed a standard range sentence, Johnson would have received no punishment through confinement on his multiple current offenses because those offenses did not increase the standard sentence range he already faced on count II under cause number 09-1-05920-5 (first degree promoting prostitution). Johnson's criminal history, high offender score, and multiple current offenses support the sentencing court's conclusion that substantial and compelling reasons exist to impose an exceptional sentence under RCW 9.94A.535(2)(c). We are confident the sentencing court would have imposed the same sentence even without considering uncharged crimes.
Contrary to Johnson's contention, the court clearly based the exceptional sentence at least in part on RCW 9.94A.535(2)(c)'s aggravating factors. The court used language similar to that in RCW 9.94A.535(2)(c), reflecting its intent to impose the exceptional sentence based on Johnson's extensive criminal history, high offender score, and multiple current offenses.
CONCLUSION
Because the sentencing court had a sufficient basis to impose an exceptional sentence under RCW 9.94A.535(2)(c), we affirm.