Opinion
No. 22896-7-III
Filed: March 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-1-02966-2. Judgment or order under review. Date filed: 03/18/2004. Judge signing: Hon. Tari S. Eitzen.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
The appearance of fairness in court proceedings is as fundamental and necessary as is actual impartiality. Any appearance of unfairness diminishes respect for the integrity of the judicial process and thereby threatens the public's confidence in the fair administration of justice. Due process for criminal defendants, like other parties, includes a fair hearing before an impartial judge and a judge who appears to be fair.
On appeal, Shawn R. Stilson argues the judge should not have sentenced him after his two guilty pleas to attempting to possess methamphetamine because her impartiality might `reasonably be questioned' per Code of Judicial Conduct (CJC) 3(D)(1). The record supports an apparent bias argument. The judge stated preconceived personal opinions showing a protective sympathy for the mother of Mr. Stilson's child derived from knowledge gained outside this case. The sentence far exceeded the agreed recommendations without any discussion of crime facts. Applying the appearance of fairness doctrine, an objective review of the record shows facts reasonably raising an inference of apparent judicial bias.
Normally the remedy would be to vacate the sentence and remand for sentencing before a new judge. However, at argument counsel agreed a resentencing may be moot because of the passage of time. Therefore, in order to vindicate the fair trial principles involved here, we remand to the trial court for proceedings before a new judge with direction to conduct such further proceedings as may be required. We envision these proceedings to include a resentencing, if necessary, to ameliorate any remaining consequences of Mr. Stilson's sentence, such as increased costs associated with his incarceration, supervision, home detention, and like costs beyond that expected in the jointly recommended sentence.
FACTS
As part of a plea agreement, Mr. Stilson pleaded guilty to two counts of attempted possession of methamphetamine. The State recommended a sentence of 11 days in jail with credit for 11 days served on one charge, and three days in jail with credit for three days served on the other charge; to dismiss a third charge; and not to file additional charges. The court capably accepted Mr. Stilson's plea.
At some point, the judge realized Mr. Stilson was the `significant other' of a person who had appeared before her in drug court who was the mother of his child. Record of Proceedings (RP) at 19. The judge said Mr. Stilson was a `horrible' influence on the mother and implied he was responsible for her drug problems. RP at 19. After asking about Mr. Stilson's contacts with the child, the following colloquy occurred:
THE COURT: You are aware that I told [the mother] to stay away from you?
RP at 18. Mr. Stilson replied affirmatively. The colloquy continued:
THE COURT: I am going to go along with this agreement, but I want to let you know if I ever find out you are around [the mother] or that child with any drugs, there is going to be a reckoning. Do you understand me?
THE DEFENDANT: I wouldn't put my child —
THE COURT: You put [the mother] in this kind of position.
RP at 18. Mr. Stilson disagreed. Continuing:
THE COURT: There is nothing I would like more than to lock you up for the longest time possible. I will tell you the truth because [the mother] fought with getting through Drug Court the whole time.
THE DEFENDANT: That's my fault? I'm sorry.
THE COURT: Go ahead.
THE DEFENDANT: No. That's my fault?
THE COURT: No. I want you to say whatever you feel like saying.
THE DEFENDANT: Just asking that's my fault?
THE COURT: I think so. I think you are a horrible influence on her.
THE DEFENDANT: Would you — you don't even know me.
THE COURT: This is Mr. Stilson, [the mother's] significant other.
THE DEFENDANT: You don't even know me.
THE COURT: I think I know you.
THE DEFENDANT: No, I don't think you do. You know my record.
RP at 18-19. The court ignored the time-served recommendations and began announcing five-month sentences when the following exchange took place:
THE DEFENDANT: You are going to take me out of my baby's life for five months — for 10 months. That's what you are trying to tell me?
THE COURT: Mr. Stilson, I would like to take you out of that baby's life forever.
RP at 21.
Finally, with no discussion of the crime facts, the court imposed concurrent five-month sentences and, after request, allowed work crew, home detention, and work release with 30 days converted to community service. Mr. Stilson appealed.
ANALYSIS
The presented issue is `[s]hould the judge have recused herself once she realized she was predisposed to bias toward the defendant because of his prior relationship with [the mother].' Appellant's Opening Brief at 3. At oral argument, the parties conceded this appeal was apparently moot. However, since the issue raised is of public importance, it warrants review. State v. Veazie, 123 Wn. App. 392, 394, 98 P.3d 100 (2004). Mr. Stilson needlessly assumes the burdens of showing actual impartiality and that the trial court realized its predisposition for bias. The deeper, less burdensome, and dispositive issue is whether, under these facts, the appearance of unfairness exists because the judge's impartiality may, by implication, be reasonably questioned. As explained below, even the appearance of unfairness threatens the integrity of the judicial process. CJC 3(D)(1) states: `Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party.' Courts apply an objective test assuming that "a reasonable person knows and understands all the relevant facts." Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)). The effect on the judicial system can be debilitating when `a trial judge's decisions are tainted by even a mere suspicion of partiality.' Sherman, 128 Wn.2d at 205. Generally, recusal is within the sound discretion of the court. In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 679 (1997). Recusal questions usually arise when a judge perceives a potential conflict or bias and announces it to the parties or a party raises the issue. Here, the issue was not raised below by either the trial court or Mr. Stilson. Considering the facts objectively, the judge appeared to have `a personal bias or prejudice concerning a party.' CJC 3(D)(1). The judge accused Mr. Stilson of harming the mother's progress in drug court stating he was a `horrible' influence on her, `[t]here is nothing I would like more than to lock you up for the longest time possible,' and the judge would like to take him out of his baby's life `forever.' RP at 18-19, 21.
The State argues Mr. Stilson waived the bias issue by not objecting. Generally, `a litigant who proceeds to a trial or hearing before a judge despite knowing of a reason for potential disqualification of the judge waives the objection and cannot challenge the court's qualifications on appeal.' Buckley v. Snapper Power Equip. Co., 61 Wn. App. 932, 939, 813 P.2d 125 (1991) (citing Brauhn v. Brauhn, 10 Wn. App. 592, 597-98, 518 P.2d 1089 (1974)); see also Henriksen v. Lyons, 33 Wn. App. 123, 128, 652 P.2d 18 (1982) (defendant waived due process issue by failing to raise issue and seek recusal). Here, waiver does not apply since Mr. Stilson did not learn of the court's suspected bias until sentencing was in progress. Further, the court initially indicated it was going `to go along with this agreement.' RP at 18.
Above all, the appearance of fairness doctrine applies. Criminal defendants have a due process right to a fair trial by an impartial judge. Wash. Const. art. I, sec. 22; U.S. Const. amends. VI, XIV. Impartial means the absence of bias, either actual or apparent. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). `The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial.' State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992) (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972)). Colloquies between the court and counsel can become the basis for a fair trial challenge. See State v. Ingle, 64 Wn.2d 491, 499, 393 P.2d 422 (1964). `The constitution guarantees a fair trial, not a perfect trial.' Id.
Public confidence in the administration of justice requires the appearance of fairness and actual fairness. State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885 (1999). Actual and potential bias is equally relevant. Post, 118 Wn.2d at 618-19. Objectively, the court's colloquy with Mr. Stilson gives the appearance that the judge's sincere personal interest in collateral matters appears to have affected the sentencing outcome. Keeping Mr. Stilson away from his former girlfriend and his child are not crime-related facts, but facts that nevertheless appear to have driven the court's sentencing decisions. `Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.' In re Pers. Restraint of Rice, 118 Wn.2d 876, 898, 828 P.2d 1086 (1992) (Utter, J. dissenting) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)).
Given all, we hold the appearance of fairness doctrine applies to these facts.
Mr. Stilson does not ask to withdraw his plea and requests resentencing. We vacate Mr. Stilson's judgment and sentence and remand for proceedings before a new judge.
Mr. Stilson is not required to show actual impartiality. Had the judge recognized the potential for apparent bias, we would expect the judge's recusal to follow. In any event, these facts raise the appearance of unfairness in Mr. Stilson's sentencing. Therefore, we remand for further proceedings consistent with this opinion. Our disposition makes it unnecessary to analyze Mr. Stilson's real facts contentions.
Remanded for further proceedings consistent with this opinion.
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.
SWEENEY, A.C.J. and SCHULTHEIS, J., Concur.