Opinion
No. 21551-2-III
Filed: December 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County. Docket No. 02-1-00315-7. Judgment or order under review. Date filed: 10/07/2002. Judge signing: Hon. Donald Schacht.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), James Lyle Nagle, Office of the Pros Attorney, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Ralph A. Mabry was charged with vehicular assault, hit and run accident with injury, and taking a vehicle without permission. After accepting Mr. Mabry's guilty plea on all three counts, the sentencing court imposed an exceptional sentence and ordered restitution. On appeal, Mr. Mabry challenges the exceptional sentence and the order of restitution contending the court (1) violated the appearance of fairness doctrine and his right to allocution by preparing written findings of fact and conclusions of law prior to the sentencing hearing, (2) relied on invalid aggravating factors when imposing the exceptional sentence, and (3) imposed restitution without holding a fact-finding hearing.
Pending this appeal, the United States Supreme Court decided in Blakely v. Washington, U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) that, other 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. We thus requested supplemental briefing from the parties regarding the impact of Blakely on Mr. Mabry's exceptional sentence. We now invalidate two of the three factors used by the trial court to support the exceptional sentence and remand for resentencing. We also reverse the order of restitution.
FACTS
Mike Tyas was injured when he was struck by a red Mazda while riding his mountain bike. When the accident occurred, Mr. Tyas was riding his bicycle in a marked bicycle lane and the Mazda was approaching in the opposing lane of vehicle traffic. Witnesses observed the Mazda accelerate and cross the centerline. The Mazda then entered the bicycle lane and the left front corner of the vehicle struck Mr. Tyas. On impact, Mr. Tyas was thrown into the windshield of the Mazda and then over the roof of the vehicle, landing on the street.
The Mazda continued and turned at the intersection, stopping at the curb with half of the bicycle under the car. The driver stepped out of the vehicle and asked witnesses if the bicycle was alright. When witnesses responded in the negative, the driver hit himself on the head a few times and drove away in the Mazda with the bicycle still under the car. Another witness observed the Mazda, with the bicycle underneath, parked by the side of the street, and the driver fleeing on foot. The driver, Mr. Mabry, was detained by police and later identified by witnesses as the driver involved in the collision.
When apprehended by police, Mr. Mabry made unsolicited inquiries as to the condition of the bicyclist. Mr. Mabry also told police that he fled the scene because he was scared. At the time, officers observed that Mr. Mabry was very sluggish and had slurred speech, similar to an intoxicated person. A blood sample was obtained and the toxicology report later revealed that `Mr. Mabry had .15 mg of alprazolam (Zanax) and 6 Ng/ml of carboxy-THC in his blood sample.' Clerk's Papers (CP) at 16.
At the time of the accident, Mr. Mabry's license status from California was found to be revoked for driving under the influence and the Mazda he was driving had been reported as stolen. Police later confirmed that the Mazda had been stolen.
Mr. Mabry was charged with vehicular assault, hit and run with injury, and taking a motor vehicle without permission. Mr. Mabry entered a guilty plea to all three counts. The prosecutor and defense counsel recommended a sentence in the standard range. After accepting his plea, the sentencing court imposed an exceptional sentence by ordering consecutive sentences and by imposing sentences above the standard range on each count. Later, the court ordered Mr. Mabry to make restitution in the amount of $128,688.16.
ANALYSIS
Appearance of Fairness Doctrine. Mr. Mabry contends the sentencing court violated the appearance of fairness doctrine by preparing the written findings and conclusions prior to the sentencing hearing.
The appearance of fairness doctrine is violated when the right of allocution is inadvertently omitted until after the court has orally announced the sentence it intends to impose. State v. Aguilar-Rivera, 83 Wn. App. 199, 203, 920 P.2d 623 (1996).
There has been some disagreement over whether the unintentional failure by the trial court to grant a defendant the opportunity to speak at sentencing is necessarily reversible error. See State v. Gonzales, 90 Wn. App. 852, 854, 954 P.2d 360 (1998); State v. Avila, 102 Wn. App. 882, 898, 10 P.3d 486 (2000). In Gonzales, Division One of this court concluded that no prejudice resulted because Mr. Gonzales received the lowest possible standard range sentence. Gonzales, 90 Wn. App. at 855. Similarly, in Avila, Division Three of this court held the trial court's failure to provide the defendant an opportunity to address the court was harmless because his sentence was well below the maximum prescribed under the statute. Avila, 102 Wn. App. at 898. However, recently, Division Three of this court concluded that denial of allocution constitutes reversible error. State v. Canfield, 120 Wn. App. 729, 734, 86 P.3d 806 (2004). Here, Mr. Mabry was permitted his right of allocution before the sentencing court announced its decision. But Mr. Mabry contends that there is no meaningful distinction between making an oral sentencing decision prior to allocution and preparing written findings of fact and conclusions of law prior to allocution. This argument extends Aguilar-Rivera too far. We will not assume the court is incapable of changing its decision after hearing the defendant's statement. The court always retains the discretion to revise its findings of fact and conclusions of law before entry. We conclude the trial court did not violate the appearance of fairness doctrine by preparing findings of fact and conclusions of law supporting the exceptional sentence prior to allocution.
Exceptional Sentence. In its findings of fact, the court found that the `facts of this case, the injuries to the victim, and the effect of this crime upon the victim and his family are as set forth in the Presentence Investigation Report.' CP at 34. The court also found `the Defendant's prior unscored misdemeanor criminal history consists of 16 convictions, involving alcohol and drug abuse, assault, disorderly conduct, burglary, domestic violence, and driving while intoxicated.' CP at 34-35.
The court concluded that (1) pursuant to RCW 9.94A.535(2)(j), Mr. Mabry's prior unscored misdemeanor criminal history results in a presumptive sentence that is clearly too lenient in light of RCW 9.94A.010; and (2) substantial and compelling reasons justified a sentence above the standard range on counts 1 and 2, and the imposition of consecutive sentences on all counts. In other words, the court's exceptional sentence included both sentences outside the standard range and consecutive sentences on each count.
Under the Sentencing Reform Act of 1981 (SRA), the court may impose an exceptional sentence upward based upon statutory or nonstatutory aggravating factors. The SRA has permitted the trial judge to make the factual determinations necessary to establish aggravating factors by a substantial and compelling reasons, rather than beyond a reasonable doubt. RCW 9.94A.535. But the United States Supreme Court's decision in Blakely has invalidated this procedure. The court in Blakely held that, except for the existence of a prior conviction, any fact that increases the penalty for a crime must be admitted by the defendant, or submitted to a jury and proved beyond a reasonable doubt. Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Since this appeal was pending when the opinion in Blakely was announced, its holding applies to this case. See Griffith v. Kentucky, 479 U.S. 314, 322, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326-27, 823 P.2d 492 (1992).
Applying Blakely, the first two factors employed by the trial court here — the injuries to the victim, and the effect of the crime upon the victim and his family — do not pertain to the existence of any prior conviction or criminal history. And the facts were neither admitted by Mr. Mabry nor determined by a trier of fact beyond a reasonable doubt. The court instead merely adopted by a preponderance standard the facts stated in the presentence investigation report. Hence, under Blakely, the court erred in using these factors to support an exceptional sentence.
The State's additional argument that Mr. Mabry's mental state and the vulnerability of Mr. Tyas as a bicyclist were factors sufficient to support the court's imposition of an exceptional sentence are not discussed because there is no indication in the court's findings that these factors were considered. Such findings would be subject to the Blakely beyond a reasonable doubt standard in any event.
Our focus then is on the third aggravating factor used by the trial court — Mr. Mabry's 16 prior unscored misdemeanor convictions, including a conviction for driving while under the influence of intoxicating drugs or alcohol and several other convictions involving drug and alcohol abuse. Mr. Mabry has made no challenge to the existence of these convictions, either at sentencing or during his opening and post-Blakely supplemental briefing in this appeal. Rather, his argument is that his prior convictions bear little similarity to the offenses charged here and that these convictions should not have been considered by the sentencing court to justify an exceptional sentence.
Prior unscored misdemeanors can be considered to support the imposition of an exceptional sentence if they result in a presumptive sentence that is too lenient in light of the purposes of the SRA. RCW 9.94A.535(2)(j); State v. Ratliff, 46 Wn. App. 325, 332, 730 P.2d 716 (1986). Unscored misdemeanors can be an aggravating factor based either on the number of the convictions or on the relationship between the prior unscored convictions and the current offense. Ratliff, 46 Wn. App. at 331-32. Significantly, five unrelated misdemeanor convictions have been held sufficient to warrant an exceptional sentence. State v. Atkinson, 113 Wn. App. 661, 669, 54 P.3d 702 (2002), review denied, 149 Wn.2d 1013 (2003).
We agree with Division Two of this court in its recent decision in Van Buren that the holding in Blakely does not require that a defendant's criminal history, including prior misdemeanor convictions, be proved beyond a reasonable doubt before it can be taken into consideration by a sentencing judge. State v. Van Buren, Wn. App. ___, 98 P.3d 1235, 1240-41 (2004). Neither Blakely nor Apprendi — the case upon which it is based — expressly prohibit a judge from imposing sentences above the standard range when the defendant's criminal history justifies an exceptional sentence. Indeed, under the SRA, it remains a matter of judgment for the sentencing court to determine whether facts existing or sufficiently proven under Blakely are sufficiently substantial and compelling to justify an exceptional sentence. See Van Buren, 98 P.3d at 1241 (citing Blakely, 124 S. Ct. at 2538 n. 8).
Applying the above principles, the trial court did not err by considering Mr. Mabry's prior unscored misdemeanors as an aggravating factor when imposing an exceptional sentence.
Although we approve of only one of the three factors used by the trial court in imposing the exceptional sentence, we may uphold the exceptional sentence if we are satisfied that the trial court would have imposed the same sentence based solely upon the factor of Mr. Mabry's prior unscored misdemeanors. State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d 57 (1996). Because the trial court did not specifically state as a conclusion of law that the unscored misdemeanor factor standing alone would be a substantial and compelling factor justifying the exceptional sentence, we remand for resentencing consistent with Blakely. We thus will not review Mr. Mabry's additional contention that his sentence is clearly excessive.
Restitution. RCW 9.94A.753(5) provides that: `Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property.' The sentencing court's authority to order restitution is purely statutory; when authorized, the sentencing court has discretion to determine the amount of restitution. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). As a result, a trial court's restitution award, if authorized, will not be disturbed absent an abuse of discretion. Id. This exercise of discretion is reversible only when it is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999) (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981)).
Restitution may be ordered only for losses incurred as a result of the precise offense charged. State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993). And, the restitution ordered must be causally connected to the defendant's crime. Enstone, 137 Wn.2d at 682-83. When determining restitution, the sentencing court may rely upon information that is admitted by the plea agreement, or admitted or acknowledged by evidence presented at the sentence or restitution hearing. State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998) (quoting former RCW 9.94A.370(2) (2000)).
Recodified as RCW 9.94A.530 by the Laws of 2001, ch. 10, sec. 6.
Restitution for injury to or loss of property is limited to damages that are `easily ascertainable' and `[t]he amount of restitution shall not exceed double the amount of the offender's gain or the victim's loss from the commission of the crime.' RCW 9.94A.753(3). The amount of loss need not be shown by proof beyond a reasonable doubt or clear and convincing evidence. State v. Smith, 33 Wn. App. 791, 795-96, 658 P.2d 1250 (1983). To prove the extent of damages, the victim need only present evidence that `affords a reasonable basis for establishing the loss and does not subject the trier of fact to mere speculation or conjecture.' State v. Horner, 53 Wn. App. 806, 808, 770 P.2d 1056 (1989). In short, once the fact of damage is established, the precise amount does not have to be shown by mathematical certainty. Id. However, if a defendant disputes a material fact related to restitution, the sentencing court must either not consider those facts or hold an evidentiary hearing where the State must prove the restitution amount by a preponderance of the evidence. Woods, 90 Wn. App. at 907 (quoting former RCW 9.94A.370(2)).
Restitution Order. On August 26, 2002, Mr. Mabry entered a guilty plea. At that time, he acknowledged that he understood that restitution could be imposed. Mr. Mabry also indicated that he would `be more than happy' to give the victim all of the $50,000 he believed he would be receiving from a settlement for the death of his wife. Report of Proceedings (RP) (Oct. 7, 2002) at 11.
On March 24, 2003, the State presented an order to the court determining restitution totaling $128,688.16 be paid to Uniform Medical, Allied Group Claims, Premera Blue Cross, and Christopher and Tamela Tyas. Mr. Mabry was not present at this hearing. At the hearing, defense counsel stated that he had concerns about the order and that he had been unable to speak to Mr. Mabry. Defense counsel objected to the order, expressing concern that he had been presented only with line items, dollar amounts, and people's names — without any information explaining how these items related to the accident. The hearing was continued for two weeks to enable the State to obtain additional information concerning the restitution.
On April 7, the last day of the 180-day period, the State once again noted the order for presentment. Defense counsel again objected, stating that the information provided by the State was insufficient and that a restitution hearing was the proper mechanism to establish the restitution amount. The State did not request a continuance. The court signed the order to preserve this issue for appeal.
If a defendant disputes a material fact related to restitution, the sentencing court must either not consider those facts or hold an evidentiary hearing where the State must prove the restitution amount by a preponderance of the evidence. Woods, 90 Wn. App. at 907 (quoting former RCW 9.94A.370(2)). Because Mr. Mabry disputed the amounts of restitution presented by the State, the State was under the obligation to present evidence that the restitution amounts were causally related to the offense. Here, the court improperly imposed restitution without any evidence that established a causal connection between Mr. Mabry's actions and the amount of damages requested. Entry of an order of restitution for the amount of $128,688.16 was an abuse of discretion.
Remedy. Mr. Mabry also argues that the State is barred from recovering restitution because the court did not properly determine the amount of restitution within the 180-day limitation period.
The sentencing court must determine the amount of restitution at the sentencing hearing or within 180 days of sentencing unless the court extends this period for good cause. RCW 9.94A.753(1). The order of restitution will be vacated on appeal if the sentencing court holds a restitution hearing and enters a restitution order after this time period has expired. State v. Dennis, 101 Wn. App. 223, 229, 6 P.3d 1173 (2000). `The reason for this rule is that the State must not be given a further opportunity to carry its burden of proof after it fails to do so following a specific objection.' Id.
Here, defense counsel made an objection, but the State did not ask for a continuance to set a date for a hearing. The sentencing court then entered an order of restitution without resolving the factual disputes between the parties. Additionally, it is unclear whether the sentencing court considered any documents when entering the order of restitution. When defense counsel stated that all he had was a computer printout with provider names on it, the sentencing court responded: `Well, you have got more than the Court has.' RP (April 7, 2003) at 6.
While the parties acknowledged that the victim sustained serious injuries as a result of this accident, the State made no attempt to respond to Mr. Mabry's challenges to the amount requested for restitution. Moreover, there are no exhibits in the record here to support the court's decision to set the restitution amount at $128,688.16. As a result, the sentencing court improperly entered an order based on insufficient evidence. Because the State did not request a continuance for the hearing, the matter cannot be remanded as that would allow the State to introduce new evidence when the State failed to prove the required facts within the statutory time period. See Dennis, 101 Wn. App. at 229-30. In Dennis and State v. Dedonado, 99 Wn. App. 251, 257-58, 991 P.2d 1216 (2000), the court vacated those portions of a restitution order that the State did not prove within the 180-day period set forth in former RCW 9.94A.142 (2000).
Recodified as RCW 9.94A.753 by the Laws of 2001, ch. 10, sec. 6.
In summary, we reverse Mr. Mabry's sentence and remand for resentencing. We reverse the restitution order.
The 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.
KATO, C.J. and SWEENEY, J., concur.