Opinion
No. 64821-7-I.
Filed: November 22, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 07-1-00506-1, Sharon S. Armstrong, J., entered December 18, 2009.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Lau and Spearman, JJ.
Ricky Ray Sexton appeals a court order denying his motion to amend a standard range sentence for delivery of methamphetamine and possession of methamphetamine with intent to deliver. He argues that the sentencing court erred when, on resentencing, it did not reduce his sentence in proportion to a reduction in his offender score and standard range. He contends that in doing so, the court abused its discretion and acted vindictively. Because the court was not required to proportionately reduce Sexton's previous sentence, it had discretion to sentence him within the standard range and did not abuse that discretion. And as Sexton has not shown judicial vindictiveness, we affirm.
Background
A jury found Sexton guilty of one count of delivery of methamphetamine and one count of possession of methamphetamine with intent to deliver. The court imposed a sentence of 70 months on each count, running concurrently, based on an offender score of 6 and a standard range of 60+ to 120 months for each count. Sexton appealed, arguing that the trial court was required to determine independently whether Sexton's prior offenses for burglary and theft of anhydrous ammonia constituted the "same criminal conduct" under RCW 9.94A.589(1)(a). The State conceded error, and we remanded for resentencing.
State v. Sexton, noted at 151 Wn. App. 1035, 2009 WL 2365646, at *2.
Sexton, 2009 WL 2365646, at *1, *2.
At Sexton's resentencing hearing, the court found his offender score to be 5 points, reducing his standard range on each count to 20+ to 60 months. The court stated, "I think there's a conversation to be had, though, about the appropriate amount of the sentence and I don't feel that I'm bound at all by . . . looking at where the sentence I imposed before is in relation to the range." The State argued that Sexton should be sentenced to 60 months because of "Mr. Sexton's history [of] manufacturing methamphetamine," referencing his conviction for theft of anhydrous ammonia, a common ingredient in the manufacture of the drug. Sexton's counsel responded, "[H]e was sentenced at the lower end of what was then the standard range and so I would argue that he should be sentenced again at the lower part of the range." The court replied,
[F]rankly, if we had the correct offender score and the range had been 20 months plus to 60 months, when I sentenced before, I would have sentenced Mr. Sexton at the top of the range. It was my view that with the range being so large that 70 months was . . .
the appropriate amount of time. Unless there's something in the case that compels me to do sort of a proportionate sentence, I think I have the discretion to impose a sentence that I believe is within the range but comports with the seriousness of the conduct.
The court imposed a sentence of 60 months. Sexton appealed.
Concurrent with his appeal, Sexton moved under CrR 7.8 to amend his sentence, arguing that it resulted from a misunderstanding that Sexton had prior convictions for manufacturing and delivering methamphetamine. Appended to the motion was Sexton's entire criminal history, which showed that he had no convictions for manufacture or delivery. The court denied Sexton's motion because the "[s]entence was based on the nature of the offense and the defendant's criminal history." At the CrR 7.8 hearing, the court elaborated,
My thinking, and having been the trial judge in this case, was that Mr. Sexton, though he denies this, was engaged in the sale of methamphetamine, and my belief was that the theft of anhydrous [ammonia] for which he was convicted back in 2001, indicated participation in methamphetamine activity because anhydrous [ammonia] is an ingredient for methamphetamine, and that is the part of his history that I was focused on. And I believe that 60 months is the correct sentence for this defendant on the basis of this conduct and his history.
Analysis
Sexton claims that because the trial court previously sentenced him to 70 months based on a standard range of 60+ to 120 months, when the standard range was reduced on remand to 20+ to 60 months, the trial court should have proportionately reduced his sentence. Sexton asserts that the court's refusal to do so was an abuse of discretion and constituted judicial vindictiveness. We disagree.
Generally, a party cannot appeal a standard range sentence. This principle arises from the notion that "so long as the sentence falls within the proper presumptive sentencing ranges set by the legislature, there can be no abuse of discretion as a matter of law as to the sentence's length." Therefore, a trial court has broad discretion to impose a sentence within the standard range in accordance with the correct offender score. And a trial judge is "under no obligation to explain [her] reason for imposing a sentence at the high end of the standard range."
RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003); State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003).
Williams, 149 Wn.2d at 146-47 (citing State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719 (1986)); see also State v. Medrano, 80 Wn. App. 108, 111-12, 906 P.2d 982 (1995).
State v. Barberio, 66 Wn. App. 902, 908, 833 P.2d 459 (1992).
State v. Mail, 121 Wn.2d 707, 714, 854 P.2d 1042 (1993).
Here, Sexton's sentence falls within the standard range. And, contrary to Sexton's claim, the court was not required to proportionately reduce his sentence. Consequently, we hold that the trial court did not abuse its discretion when it refused to reduce Sexton's sentence in proportion to the reduction in his offender score and standard range.
See Barberio, 66 Wn. App. at 906 (rejecting argument that reduction in offender score and standard range requires proportionate reduction in the length of reimposed exceptional sentence).
Nonetheless, Sexton can still prevail if he can show that the court's sentence was the result of judicial vindictiveness. The due process clause protects defendants from increased sentences after appeal in certain circumstances, for example where judicial vindictiveness plays a role. North Carolina v. Pearce established that where the same trial judge presides over more than one sentencing and the defendant's last sentence is more severe than earlier ones, the trial court must expressly state its reasons for imposing a greater sentence. A trial court's failure to explain its justification for imposing a greater sentence creates a rebuttable presumption of vindictiveness. Where the presumption applies, the State must point to an "on-the-record, wholly logical, [and] nonvindictive reason for the sentence."
See Barberio, 66 Wn. App. at 908 ("[U]nless at a resentencing . . ., there is evidence that the same sentence is imposed out of vindictiveness . . ., an appellate court will not find an abuse of discretion simply because a trial court, after considerations of valid aggravating factors, reimposes the same sentence after a change in the offender score.").
See State v. Parmelee, 121 Wn. App. 707, 708, 90 P.3d 1092 (2004) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)).
395 U.S. 711, 726, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (where a trial court imposes a more severe sentence on a defendant after a new trial, the reasons for doing so must affirmatively appear); see also State v. Ameline, 118 Wn. App. 128, 133, 75 P.3d 589 (2003).
Alabama v. Smith, 490 U.S. 794, 802, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989); State v. Franklin, 56 Wn. App. 915, 920, 786 P.2d 795 (1989).
Texas v. McCullough, 475 U.S. 134, 140, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); United States v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982).
Citing United State v. Barry, Sexton argues that the presumption applies not only where there is an actual increase in the sentence but also where there is an increase in relative severity. Barry states,
961 F.2d 260, 295 U.S. App. D.C. 173 (1992).
It could be argued, of course, that Pearce nevertheless applies
here because the appellate decision required the district court to reduce the sentencing offense level; the reasoning being that under such circumstances, the award of the same penalty on remand is tantamount to an increase in its relative severity. Pearce, however, does not foreclose the possibility of increased sentences on remand. It merely requires that a court explain its choice of an enhanced sentence to ensure that the more severe sentence is not motivated by vindictiveness.
Barry, 961 F.2d at 268.
Therefore, under Barry, even if we were to accept that an increase in severity gives rise to a presumption of vindictiveness, which we do not, the presumption is rebutted when the court provides a nonvindictive reason. Here, the sentencing court "provided an entirely credible, non-vindictive rationale for [the] resentencing decision" — that the "[s]entence was based on the nature of the offense and defendant's criminal history," which includes prior participation in methamphetamine activity. This wholly logical reason rebuts any presumption that the court acted vindictively.
Barry, 961 F.2d at 268.
Neither can Sexton prove actual vindictiveness. To establish actual vindictiveness, the defendant must show through objective evidence that the court acted to punish the defendant for exercising a constitutional or statutory right, here the right to appeal his original sentence. Sexton attempts to show actual vindictiveness by arguing that the court had no basis for refusing to proportionately lower his sentence once the court learned that he had no prior convictions for the manufacture or delivery of methamphetamine. Sexton argues, "[T]here would be no reason for the judge to maintain the same sentence upon discovery of the misperception — apart from vindictiveness." But, as stated above, the court gave a perfectly acceptable reason for why it refused to reduce Sexton's sentence.
See Alabama, 490 U.S. at 799-800.
See State v. Korum, 157 Wn.2d 614, 669, 141 P.3d 13 (2006) (establishing the requirements to prove actual prosecutorial vindictiveness); see also State v. Howard, 174 Ohio App. 3d 562, 566-67, 883 N.E.2d 1077 (2007) ("`Actual vindictiveness' implies an animus against a defendant on account of the defendant's prosecution of his right of appeal, resulting in a reversal of the defendant's prior conviction for error in a ruling made by the sentencing judge.").
Sexton also urges us to find actual vindictiveness based on a conversation between the court, prosecutor, and Sexton's counsel after his resentencing hearing. During this conversation, which seems to have been accidentally recorded, the following exchange occurred,
The Court: Ms. Paulson, it has been a journey with this defendant.
Attorney Paulson: I gathered that.
Prosecutor Kline: I was trying to fill her in before the hearing, Your Honor.
The Court: Especially the last hearing we had, oof!
. . . .
Attorney Paulson: Now, the ineffective assistance of counsel claim comes through. [laughter]
The Court: Or the bar complaint, I mean, the judicial conduct complaint, you know.
While these comments are unfortunate, they do not rise to the level of demonstrating vindictiveness nor do they tend to establish that the court was improperly motivated to punish Sexton for exercising his constitutional right to appeal.
"Vindictiveness" is the quality or state of being vindictive, which is defined as "having a bitterly vengeful character: disposed to seek revenge . . .: intended for or involving revenge . . .: characterized by an intent to cause unpleasantness, damage, or pain: nasty, vicious, spiteful." Webster's Third New International Dictionary 2553 (1993).
Under these circumstances, we hold that the trial court did not err in imposing a high end, standard range sentence.
In a statement of additional grounds, Sexton makes several arguments relating to his underlying conviction. His claims are dependent on facts outside the record. Therefore, an independent proceeding initiated by a personal restraint petition under RAP 16.3 provides the only procedure available to Sexton to raise these issues.
State v. King, 24 Wn. App. 495, 505, 601 P.2d 982 (1979).
Conclusion
Affirmed.
WE CONCUR: