State v. Lopez

Madsen, J.

(dissenting) — The majority holds that the State cannot offer evidence of prior convictions on remand for resentencing in this case. The majority’s decision penalizes the State for the sentencing court’s error in overruling an objection to use of unproved criminal history in sentencing. The authority on which the majority relies does not require this unreasonable result. I would reverse the Court of Appeals and direct that on remand for resentencing the State be given the opportunity to prove the prior convictions. Accordingly, I dissent.

There is no question that the life sentence imposed on Mr. Lopez under the Persistent Offender Accountability Act must be reversed because the State did not prove the necessary prior convictions by a preponderance of the evidence. However, under the particular circumstances of this case, the State should not be penalized for this failure. The defendant’s objection was

*524that in order to impose the life sentence the Court has got before it, that we need to have the prior offenses . . . proved by a preponderance of the evidence, which would require that we do have two separate judgments and sentences for two separate incidents . . . that are serious offenses.

Verbatim Report of Proceedings (RP) at 408-09. It is clear that the defendant was not disputing material facts that would have required an evidentiary hearing. See former RCW 9.94A.370(2) (2000). Instead, defendant was objecting to the use of former convictions without proof by a preponderance of the evidence.4

As the majority states, the prosecution and the sentencing court appear to have misunderstood the nature of Mr. Lopez’s objection. However, the misunderstanding is not as the majority characterizes it. The sentencing judge asked the deputy prosecutor if he had any "response to the indication that the prior convictions need to be somehow separated out or set forth in a separate hearing?” RP at 409 (emphasis added). The deputy prosecutor commented that he thought this was a challenge that should have been brought up earlier. Id. The judge then said, “I am not aware of any procedure that requires that. I’m going to go ahead and proceed with sentencing today.” Id. at 409-10.

Thus, the sentencing judge appears to have believed that the defendant was asking for an evidentiary hearing. And, even if the court additionally misunderstood the State’s burden of proof, the record is clear that neither the court nor the deputy prosecutor thought that Mr. Lopez had to provide an accurate statement of his criminal history, contrary to the majority’s view of what transpired. See majority at 521.

*525In any event, the court overruled the defense objection and proceeded to sentence Mr. Lopez. As the majority correctly states, the trial court erred when it considered unproved convictions, majority at 520. The majority incorrectly holds, however, that even though it was the sentencing court’s error that resulted in an unlawful sentence, the State will not be permitted to prove the prior convictions on remand because the State was not prepared at the sentencing proceeding to prove the prior convictions. Majority at 523.

This is a remarkable conclusion. It is true that in the colloquy between the court and counsel, the deputy prosecutor said that “We can provide copies of the judgments and sentences in both cases. I don’t have them with me right now.” RP at 409. However, in light of the court’s ruling on the defense motion and the court’s statement that producing the documents was unnecessary, the State simply was not in a position to ignore the court’s ruling. See State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986) (“trial judge has the power to control the courtroom consistent with the ends of justice”). It is therefore inappropriate to rely on the deputy prosecutor’s comments as a failure of proof. Rather than speculating about whether the prosecution could have met its burden of proof if the court had sustained the objection, this court should acknowledge that the sentencing court’s ruling meant that the State was never put to its burden of proof.

In concluding that the State would not have met its burden of proof, the majority essentially assumes the outcome had the sentencing court sustained the defendant’s objection. However, if the court had sustained the defendant’s objection, it is more likely that the State would have asked for and obtained a short continuance to gather its proof. The decision whether to grant a continuance is within the exercise of the sentencing court’s discretion. State v. Herzog, 69 Wn. App. 521, 524-25, 849 P.2d 1235 (1993) (motion for continuance of sentencing hearing within trial court’s discretion); cf. State v. Ford, 125 Wn.2d 919, *526926, 891 P.2d 712 (1995) (motion for continuance of arraignment within trial court’s discretion). Here, we do not know how that discretion would have been exercised if the State had moved for a continuance because there was no need for such a motion. However, rather than the majority’s assumption, it is more probable that the court would have granted a continuance and the prosecution would have satisfied its burden of proof by producing the judgments and sentences, given the court’s willingness to proceed without them.

I do not suggest that a continuance is the preferred course. Clearly, the State should come prepared to meet its burden of proof. Nevertheless, I would not usurp the sentencing court’s authority to consider a possible motion for a continuance in circumstances like these.5

In addition, cases relied on by the majority do not dictate its result.6 In State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999), the primary issue was whether the defendant could challenge his sentence on appeal when he failed to specifically object at trial to classification of out-of-state convictions as felonies for purposes of calculating his offender score. During the sentencing hearing, the State asserted that the convictions would be classified as felonies under Washington law, but provided no evidence supporting the assertions. Ford, 137 Wn.2d at 475. This court held that the defendant could challenge for the first time on appeal the use of the out-of-state convictions. On the merits, the court concluded that given the lack of evidence as to classification, the sentence must be vacated. The court concluded, however, that on remand the State could seek the same *527sentence because the defendant had not specifically put the sentencing court on notice of the specific defects claimed. Id. at 476. This court reasoned that this result was required in order to discourage defendants from purposefully failing to raise defects at sentencing in hopes of reversal on appeal, leaving the State without any further opportunity to prove its case. Ford, 137 Wn.2d at 486.

The court in Ford observed in dicta that “[i]n the normal case, where the disputed issues have been fully argued to the sentencing court, we would hold the State to the existing record, excise the unlawful portion of the sentence, and remand for resentencing without allowing further evidence to be adduced.” Ford, 137 Wn.2d at 485 (citing State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997), aff’d, 137 Wn.2d 490, 973 P.2d 461 (1999)).

Ford did not involve, much less consider, a case like this one where the sentencing court overruled a specific objection by the defendant. Nor does it suggest that the prosecution could not request a continuance in circumstances such as those in Mr. Lopez’s case. It clearly does not control the outcome here.

In the second case, State v. McCorkle, 137 Wn.2d 490, 494, 973 P.2d 461 (1999),7 the defendant objected at sentencing to use of out-of-state convictions offered by the State on the grounds that only convictions for which there was a certified judgment could be used and that any pre-1986 convictions had “washed out.” McCorkle, 137 Wn.2d at 494. The sentencing court agreed with the State that the convictions could be used for purposes of calculating the defendant’s offender score. Id. On appeal, the defendant contended for the first time that the State had failed to prove that the out-of-state convictions should be classified as felonies for purposes of calculating his offender score. The Court of Appeals held that the defendant had made only a general, rather than a specific objection, and that the failure to specifically object did not waive the issue *528on appeal. Id. That court then concluded that the evidence was insufficient to resolve the issue on appeal, and remanded for an evidentiary hearing and resentencing. McCorkle, 137 Wn.2d at 495.

On discretionary review, this court held that the defendant had made a specific objection because classification of the out-of-state convictions was necessary before considering whether they “wash out.” McCorkle, 137 Wn.2d at 496. The court then said, as it did in Ford, that where the prosecution fails to satisfy its burden of proof at the sentencing hearing after a specific objection, it will not be permitted a further opportunity to do so. Id. at 496-97. However, because the defendant failed to cross-appeal the Court of Appeals holding that remand for an evidentiary hearing and resentencing was required, this court affirmed that holding. McCorkle, 137 Wn.2d at 497.

Because of the defendant’s failure to cross-appeal, this court never considered in McCorkle the effect of the trial court’s failure to sustain the defendant’s objection. Significantly, this court did not address the question whether the State would be obliged to proceed to make its case despite a court ruling to the contrary. And, as in Ford, the court did not discuss the possibility of a motion for a continuance in the event the sentencing court sustains a specific objection. Moreover, McCorkle involved a dispute about material facts, i.e., the classification of the out-of-state convictions. In contrast, Mr. Lopez raised no factual disputes about the existence or nature of the convictions.

Unlike the majority, I would not require the State to make an offer of proof in view of the trial court’s ruling. Nor would I penalize the State on the assumption that the State would have foregone a motion for a continuance and the sentencing court would have denied such a motion if made.

For the reasons stated, I dissent.

Ireland and Bridge, JJ., concur with Madsen, J.

As the majority correctly notes, the defendant admitted the prior conviction of first degree burglary, and thus this conviction was properly considered by the sentencing court. Therefore, although the defendant contended that two judgments and sentences were required to prove two prior serious offenses, the State actually failed to prove one additional serious violent offense, i.e., the alleged conviction for second degree assault, in order to establish that Lopez was a persistent offender.

I note that the sentencing proceeding occurred May 11, 2000, following a May 1-3, 2000, trial, well within the time allowed for sentencing the defendant. See former RCW 9.94A.110 (2000).

In each case, State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999) and State v. McCorkle, 137 Wn.2d 490, 973 P.2d 461 (1999), the State failed to prove criminal history used for purposes of calculating the defendant’s offender score. This case involves prior convictions used for purposes of sentencing the defendant as a persistent offender. The distinction is not material because in each type of case the State has the burden of proving the prior criminal convictions for purposes of sentencing.

The majority relies on the Court of Appeals opinion in the case, while I refer to this court’s decision. The difference is not crucial for purposes here.