Opinion
No. 61552-1-I.
April 13, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-02391-5, James D. Cayce, J., entered March 24, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Cox and Ellington, JJ.
Appellant Beau Smith was sentenced on two different cases in the same proceeding. The court made the sentences run consecutively. Smith contends he thereby received an exceptional sentence which must be invalidated because the State did not notify him pretrial of its intention to seek an exceptional sentence. We hold that Smith cannot benefit from the presumption of concurrent sentencing for current offenses because, but for his own misconduct, he would have been sentenced in the first case before he even committed the crimes in the second case. The sentence is affirmed.
This is Beau Smith's second appeal of the sentence imposed for crimes he was charged with in 2005 and 2006. Our opinion in the first appeal is State v. Smith, 142 Wn. App. 122, 173 P.3d 973 (2007). In that opinion, we set out the sequence of Smith's crimes and the proceedings related to them:
On November 10, 2005, Smith was charged with one count of possession of stolen property in the first degree, to which he pleaded guilty (2005 conviction). Smith failed to appear at his February 3, 2006 sentencing hearing, however, and the next day committed two more offenses: possession of stolen property in the first degree and possession of cocaine. On February 7, 2006, he was charged with both offenses, and those offenses were given a different cause number from the 2005 conviction. A jury found Smith guilty of both offenses in May 2006 (2006 convictions).
A sentencing hearing for all offenses occurred on July 18 and 19, 2006. The standard range for the 2005 conviction was 43 to 57 months. The standard range for the 2006 possession of stolen property was 43 to 57 months, and the standard range for the 2006 possession of cocaine was 12+ to 24 months. The State recommended an exceptional sentence based on the "free crime" doctrine under RCW 9.94A.535(2)(c). Smith requested a DOSA for all of the offenses.
Smith, 142 Wn. App. at 124 (footnotes omitted).
At the first sentencing hearing in July 2006, the trial court wanted to accommodate Smith's request for a sentence that would allow him to get drug treatment. At the same time, the court viewed Smith's criminal history as too lengthy to warrant only a DOSA sentence. Smith had an offender score of 11 for the 2005 conviction and an offender score of 12 for the 2006 convictions. The highest standard range was the same: 43 to 57 months. The court decided on a non-DOSA sentence of 43 months for the 2005 conviction. For the 2006 convictions, the court imposed DOSA sentences: 25 months of confinement and 25 months of community custody on count one, and nine months of confinement and nine months of community custody on count two. After Smith served 25 months in custody for his DOSA sentence for the 2006 convictions, he would remain in custody to finish out the 43 months imposed for the 2005 conviction. Then he would serve the 25-month community custody portions of his DOSA sentences.
A DOSA is a sentencing alternative for drug crimes that allows a defendant to cut his prison time by one-half if he follows it up with successful drug treatment while in community custody. RCW 9.94A.660.
Smith appealed. He argued that it was a hybrid sentence, unlawful under State v. Grayson, 130 Wn. App. 782, 783, 125 P.3d 169 (2005). We agreed and remanded for resentencing, relying on Grayson's holding that a sentence imposed under RCW 9.94A.589(3) "must either be concurrent with another sentence or consecutive to it. The statute does not authorize a hybrid model, where a sentence is concurrent in part and consecutive in part." Smith, 142 Wn. App. at 127. We held Smith's sentence was hybrid because while the in-custody portions of his sentences were concurrent, the community custody portions of his DOSA sentences were not — they were "tacked on" to the end of his non-DOSA sentence.
Smith requested that the remand of his case be accompanied by instructions to the court to impose concurrent DOSA sentences. We rejected this request because it is discretionary with the trial court whether or not to impose a DOSA sentence. "On remand, the trial court may, but is not required to, impose a DOSA on any of Smith's sentences." Smith, 142 Wn. App. at 129.
The resentencing hearing occurred on March 20, 2008 before the same judge. Smith maintained his position that the appropriate sentence was a DOSA on both the 2005 conviction and the 2006 convictions. He desired that his time in custody would be limited to 25 months. The court remained unwilling to give Smith such a short time in custody in view of his lengthy criminal history. For the 2005 conviction, the court once again imposed a sentence of 43 months, the low end of the standard range. For the 2006 convictions, the option of imposing a DOSA sentence to run concurrently with the 43-month standard range sentence for the 2005 conviction had been ruled unlawful. The court decided to impose a 43-month non-DOSA standard range sentence in the 2006 case as well and determined that it would run consecutive to the 43 months imposed for the 2005 conviction, for a total of 86 months in confinement.
Smith now appeals from the sentence imposed at the resentencing in 2008. We summarize his argument as follows. All three of the convictions, one from 2005 and two from 2006, were "current offenses" because they were sentenced on the same date. RCW 9.94A.525(1) (Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589.). Sentences for multiple current offenses are generally concurrent. RCW 9.94A.589(1)(a). Consecutive sentences for multiple current offenses can be imposed only under the statutory provisions for exceptional sentences. RCW 9.94A.589(1)(a). Smith thus contends that he received an exceptional sentence. Smith ignores RCW 9.94A.589(3), the statute on which Grayson was based and which served as the undergirding for his first appeal.
Smith's argument continues as follows. The statutory provisions for exceptional sentences are found in RCW 9.94A.535. The statutory provision applicable to Smith's situation is that a trial court may impose an exceptional sentence where the defendant "has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished;" no finding of fact by a jury is necessary under those circumstances. RCW 9.94A.535(2)(c); State v. Newlun, 142 Wn. App. 730, 176 P.3d 529 (2008). Another statute provides that the State "may give notice" prior to trial or entry of a guilty plea that it is seeking a sentence above the standard sentencing range and stating aggravating circumstances upon which the requested sentence will be based. RCW 9.94A.537(1). In a case where the aggravating circumstances had to be proved to a jury, the Supreme Court interpreted the notice provision in RCW 9.94A.537(1) as a mandatory prerequisite for the imposition of an exceptional sentence. State v. Womac, Page 6 160 Wn.2d 643, 663, 160 P.3d 40 (2007) ("RCW 9.94A.537(1) permits the imposition of an exceptional sentence only when the State has given notice, prior to trial, that it intends to seek a sentence above the standard sentencing range."). Smith contends that under Womac, he was entitled to notice of the State's intention to seek an exceptional sentence under RCW 9.94A.537(1) even though no finding of fact by a jury was necessary to prove that some of his current offenses would otherwise go unpunished. He argues that the sentence must be invalidated because he did not receive prior notice of the State's intention to seek an exceptional sentence. He requests that his case be remanded for resentencing and that the State be precluded from pursuing an exceptional sentence. Under Smith's theory, the longest term of confinement he could serve would be 57 months, the top end of the standard range with the sentences for all three crimes running concurrently.
The State responds that the sentence imposed was not an exceptional sentence because the circumstances are the same as in State v. Moore, 63 Wn. App. 466, 469-71, 820 P.2d 59 (1991). In Moore, a case involving several defendants, defendant Evans was convicted on two burglary charges in 1987. He failed to appear for sentencing despite several warrants being issued. In 1990 he was convicted of assault. The two burglary convictions were brought before the court for sentencing along with the assault conviction. The court ordered concurrent sentences for the burglaries and then ordered the sentence for the assault conviction to run consecutively to the burglary sentences. Evans argued that because the sentences were all entered on the same date, the presumption of concurrent sentencing should have controlled the outcome, and by running the sentences consecutively the trial court had imposed an exceptional sentence for which no basis was stated. We held, however, that under the circumstances it was not an exceptional sentence. The trial court properly implemented former RCW 9.94A.400(3), now recodified as RCW 9.94A.589(3), by expressly ordering consecutive sentences. By doing so, the court "simply effectuated what would have been done in the originally scheduled sentencing hearing if Evans' misconduct had not prevented that hearing from taking place." Moore, 63 Wn. App. at 470 n. 2.
Evans absconded to avoid sentencing on the 1987 convictions. By doing so, he prevented those sentences from being entered when they normally would have been. This situation differs, consequently, from one in which multiple independent charges in a single jurisdiction are pending against a defendant due to routine delays in sentencing and are sentenced at the same hearing. To order the 9-month sentence for the assault conviction to run concurrently with the 18-month burglary sentences would in effect reward Evans for evading the punishment for the burglary convictions. This could not have been the Legislature's intent when it created the presumption of concurrent sentences in subsection (1)(a).
Moore, 63 Wn. App. at 470-71.
Like in Moore, the fact that Smith ended up being sentenced on the same day both for the 2005 conviction and also for the 2006 convictions was not the result of routine delays in sentencing. It was the result of his own misconduct. Smith was scheduled to be sentenced on February 3, 2006 on his 2005 conviction for possession of stolen property. He did not appear. The next day, he committed the 2006 offenses — possession of stolen property and possession of cocaine. To require the sentences on the 2006 convictions to be run concurrently with the 2005 conviction under RCW 9.94A.589(1)(a) would reward Smith for failing to appear on his earlier sentencing date. Following Moore, we view this as an absurd or strained consequence that is to be avoided in order to give effect to the purposes of the various statutes. See State v. Alvarado, 164 Wn.2d 556, 562, 192 P.3d 345 (2008).
The State did not argue Moore below. But a judgment of the trial court can be sustained upon any ground apparent in the record, whether stated by the trial court or not. See State v. Carroll, 81 Wn.2d 95, 101, 500 P.2d 115 (1972). Smith argues that Moore is inapplicable because it did not involve the issue he raises here, that is, whether the State can advocate for an exceptional sentence without first giving notice. This attempt at distinguishing Moore is unpersuasive. The issue of notice does not arise unless the sentence imposed is truly an exceptional sentence. Under Moore, the 2005 conviction did not deserve to be treated as a "current offense," and so the sentence Smith received for his 2006 conviction was not an exceptional sentence. For his 2005 conviction, he received a standard range sentence. For his 2006 conviction, he received two standard range sentences, to run concurrently with each other but following consecutively upon the sentence for the 2005 conviction, just as if the sentence for the 2005 conviction had been imposed on the date when sentencing was originally scheduled. We conclude that Moore provides a proper basis for affirming the sentence.
In view of this conclusion, we need not address Smith's argument that the State was required either by due process or by RCW 9.94A.537(1) to advise him prior to trial in 2006 that an aggravated exceptional sentence would be sought. As a result, we need not decide whether the State is correct in responding that the notice requirement in RCW 9.94A.537(1) is mandatory only when the State alleges aggravating factors that must be determined by a jury. And because the sentence imposed was not an exceptional sentence, we reject Smith's argument that the case must be remanded for entry of written findings of fact and conclusions of law stating the basis for an exceptional sentence.
Smith has filed a statement of additional grounds for review. First, he claims the prosecutor vindictively sought a longer sentence to penalize him for his successful pursuit of reversal in the first appeal. This claim is not supported by the record. The State consistently opposed DOSA sentencing, consistently recommended consecutive sentences, and consistently recommended that the sentence for the 2006 convictions be within the standard range of 43-57 months. The prosecutor originally believed that 29 months was long enough for the 2005 conviction, and so the State's recommendation at the first sentencing was for a total of 79 months. This represented concurrent terms of 50 and 24 months respectively for the two convictions from 2006, to run consecutively with a 29-month term for the 2005 conviction. The State made the identical recommendation at the second hearing. But then the prosecutor, judge, and defense counsel agreed that the correct standard range for the 2005 conviction was 43-57 months. This record does not supply a basis to find misconduct by the prosecutor.
Report of Proceedings on Sentencing, July 19, 2006, at 4-5.
Report of Proceedings on Resentencing, March 20, 2008, at 2-3.
Report of Proceedings on Resentencing, March 20, 2008, at 7.
Smith also contends that just before the judge entered the courtroom, his attorney assured him that the State was in total agreement with his request for concurrent DOSAs on all counts and cause numbers. Evidence to support this contention is not in the record.
Finally, Smith contends the trial judge was vindictive and impatient during the resentencing hearing in March 2008. This claim is likewise not supported by the record. The judge explained that if he had not imposed the hybrid sentence in 2006, he would have imposed consecutive standard range sentences. "If it's based on criminal history . . . they should be consecutive but I was trying to fashion that sentence where he would actually get some treatment." Smith asked a number of questions reflecting his surprise that he was getting two consecutive 43-month sentences instead of treatment. He asked the judge to review materials from his treatment facility, to which the judge responded, "I've already looked at your criminal history and have always been concerned." The judge mentioned the trial that he was scheduled to begin momentarily, "so we need to finish up things." Smith asked if the judge would reconsider. The judge responded, "I'm always willing to come back to a hearing if there's a motion filed." Smith said, "I just don't understand why you're so harsh with me on this." The judge responded, "I tried to give you a break by giving you a DOSA on one, and I understood there could be a problem with it. We tried to resolve it, but you had the right to appeal, and you did. That's your right. I don't see that that's a problem. All right. Court is in recess."
Report of Proceedings on Resentencing, March 20, 2008, at 10-18.
The record shows that the judge gave full consideration to Smith's request for two concurrent DOSAs and simply decided that he was no more inclined to grant the request than he had been at the original hearing. Grayson, relied on by Smith in his first appeal, explains that under circumstances controlled by RCW 9.94A.589(3), the sentencing judge has unfettered discretion to be either lenient or stern when deciding whether or not to run sentences consecutively. But it does not allow the flexibility to impose "a sentence in between lenient and stern." Grayson, 130 Wn. App. At 786. Here, the judge had already made it clear at the first hearing that he was not going to be lenient. As a result of Smith's first appeal, the only other option the judge had was to be stern. It should have come as no surprise to Smith that the judge chose that option. All issues properly before the trial court were fully aired. The conduct of the judge provides no basis for additional review.
The sentence is affirmed.
WE CONCUR: