STATE v. WEAVER (2007)

PUBLISHED IN PART

¶ 1 Oliver Weaver raped and impregnated a 13 year old girl.   He was convicted of second degree rape and second degree rape of a child with the consequence of impregnating a minor.   In the unpublished portion of this opinion, we uphold the verdict and reject two of Weaver's challenges to his sentence.   In the published portion of this opinion, we reject Weaver's third challenge to his sentence, disagree with a recent decision of Division II of this court, and hold that the term “presentence reports” in RCW 9.94A.530 includes criminal history information submitted by the State.   Under that statute, Weaver's failure to object to the State's report of his criminal history constituted an acknowledgement of its truth, and the trial court was entitled to rely upon it when calculating his offender score.   We thus affirm Weaver's sentence.

BACKGROUND

¶ 2 Oliver Weaver, a man in his 40s with a wife and child, operated a used car lot.   In October 2002, he called 13 year old R.T. and her cousin over as they walked past the lot, and asked them if they wanted a job washing cars and cleaning his house.   R.T., who had never met Weaver before, accepted his offer and began working for him a few afternoons a week.   Coincidentally, R.T.'s mother and Weaver discovered they knew each other from about 25 years before.

¶ 3 One afternoon in early December 2002, R.T. was cleaning Weaver's house.   Weaver approached R.T. from behind and told her if she did not do as he wished, he would kill her.   He then violently raped her for somewhere between 15 and 45 minutes.   Weaver had a weapon, which R.T. thought was a bb gun.

¶ 4 R.T. was frightened by Weaver's threats, and did not report the rape.   She worked at Weaver's home a few times over the next several weeks because her mother needed money, but in January, she told her mother she did not want to work there anymore.   In February 2003, afraid she was pregnant, R.T. told a school friend what Weaver had done.   The friend informed a school security guard, who called police.

¶ 5 R.T.'s doctor confirmed she was pregnant.   On the advice of her mother and doctor, she had an abortion.   A fetal tissue sample was collected, and the State's DNA expert calculated a one in 240 million probability that Weaver was not the father.   According to the expert, a probability of merely one in 1,000 that a donor is not the father is a “very strong indication” of paternity.¹

¶ 6 Following trial, Weaver was convicted by a jury of rape of a child in the second degree, and rape in the second degree with the consequence of impregnating a child.

DISCUSSION

 ¶ 7 Weaver challenges his offender score, contending the State failed to prove that his prior burglary convictions had not “washed out.” ²  When an offender with a previous class B felony has spent 10 consecutive years in the community without any subsequent felony or misdemeanor convictions, the prior felony washes out and is not considered in calculating the offender score on a new offense.³ The State alleged in its presentence statement of criminal history that Weaver was convicted of two misdemeanors during the 10 years following his release on the burglaries.   Weaver did not object to the State's allegation.

¶ 8 The question here is whether the State's unchallenged allegation of intervening convictions is enough.   We hold it is.

 ¶ 9 If a defendant disputes facts material to the sentence, the State must prove the disputed facts by a preponderance of the evidence,⁴ including criminal history.⁵  Under RCW 9.94A.530, however, the court may rely on information acknowledged by the defendant:

(2) In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to information stated in the presentence reports.⁶

¶ 10 In its presentence statement, the State submitted a criminal history sheet titled “Appendix B to Plea Agreement/Prosecutor's Understanding of Defendant's Criminal History.” ⁷  Weaver was convicted of burglary in 1981 and 1985.   The sentence for the second offense was eight months.   He was thereafter convicted of misdemeanors in 1987, 1988, 1993, and 1996.   The misdemeanors prevented the burglaries from washing out.

¶ 11 At sentencing, the principal issue was whether Weaver should receive an exceptional sentence.   The offender score nonetheless had to be calculated.   The prosecutor referred to the “two points” stemming from the burglary convictions.⁸  Weaver made no objection to the State's presentence report, to the prosecutor's reference to the burglaries or to the court's calculation of his offender score.   Weaver now contends his failure to object was not an “acknowledgment,” because the State's sentencing submission was not a presentence report under RCW 9.94A.530.

 ¶ 12 When we interpret statutes, we must discern and implement the intent of the legislature.⁹  We begin with the plain language and its ordinary meaning.¹⁰  When the plain language is unambiguous, the legislative intent is apparent.¹¹  We examine each provision in relation to other provisions and seek a consistent construction of the whole.¹²

¶ 13 We first address a recent decision by Division II, State v. Mendoza.¹³  The court there held that for purposes of RCW 9.9A.530(2), presentence reports are documents “prepared by the Department of Corrections (DOC) at the trial court's request under RCW 9.94A.500.” ¹⁴ The court undertook a scholarly discussion of sentencing case law, and relied principally upon State v. Ford.¹⁵ Ford involved a challenge to comparability of out-of-state prior convictions.   Our Supreme Court rejected the State's argument that the defendant had an affirmative burden to show the challenged classification was erroneous, and held that the State's mere assertion of comparability was not, standing alone, enough to prove comparability, even where the defendant stands silent:  “ ‘Acknowledgement includes not objecting to information stated in the presentence reports.’   Acknowledgement does not encompass bare assertions by the State unsupported by the evidence.” ¹⁶  The Ford Court emphasized that the classification of out-of-state convictions is not a “fact” subject to acknowledgement:  “[W]hile unchallenged facts and information are acknowledged by the defendant and may be properly relied upon by the court to support a determination of classification, under the statutory scheme classification of out-of-state convictions is a process unto itself, entirely distinct from the acknowledged existence of any fact which informs the court's conclusions.   Accordingly, a defendant does not ‘acknowledge’ the State's position regarding classification ․ merely by failing to object.” ¹⁷

¶ 14 The Mendoza court also relied upon State v. Lopez.¹⁸  THERE, LOPEZ OBJECTED TO the pRior convictions alleged by the state, but the court considered them anyway.   The State conceded error.   The issue for the Supreme Court was whether, on remand, the State should be entitled to introduce new proof, or would be held to the record of the original sentencing hearing.   The Court held the State would not have a second opportunity to create its record.

¶ 15 Relying on these cases and others, the Mendoza court concluded that no authority existed providing that anything other than a report ordered from DOC could constitute a presentence report.

¶ 16 We respectfully disagree.   Ford, Lopez, and the other cases cited in Mendoza all involve something beyond the mere fact of a conviction.   Nothing in those cases, in our view, addresses the question presented here and in Mendoza.   We look, instead, to the language of the statutes, and draw a different conclusion.

¶ 17 RCW 9.94A.500 governs procedures before sentencing.   It requires the court to request presentence reports from DOC in only two situations:  where a defendant is convicted of a felony sex offense, or shows signs of mental illness:

In addition, the court shall, at the time of plea or conviction, order the department [DOC] to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense․ If the court determines that the defendant may be a mentally ill person[,] ․ the court shall order the department to complete a presentence report before imposing a sentence.19

The same statute itemizes other information to be considered at sentencing:  “The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history.” ²⁰

 ¶ 18 This language is plain.   First, the term “presentence reports” is plural, in contrast to the singular “risk assessment report,” and therefore necessarily contemplates more than one source.   Second, the term “presentence reports” includes, at the least, any victim impact statement and any statement of criminal history.   DOC does not prepare victim impact statements, so it is difficult to see how a DOC report can be the only authorized presentence report.   Further, criminal history is defined by statute as “the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.” ²¹  Nothing in that definition or in the acknowledgment statute suggests that the only source of a criminal history is DOC. Indeed, given the narrow category of cases in which DOC now prepares presentence reports,²² we strongly doubt the legislature intended any such limitation.   While the court rules permit judges to request presentence reports from DOC,²³ it is the governing statute that informs our interpretation of legislative intent.   We do not believe the legislature intended DOC to be the only source of criminal history subject to acknowledgment.

¶ 19 Nor does this interpretation conflict with due process.   A criminal sentence must have some basis in the record.   The State's presentence statement is not the meanderings of a stranger to the case, it is part of the record.   A defendant can put the State to its affirmative burden of proof merely by objecting either before or during the sentencing hearing.   Absent objection, the facts are in the record, and the record satisfies due process.

¶ 20 The purpose of the acknowledgement statute is to focus time and effort on those occasions where the facts are disputed.   Limiting the definition of presentence reports contravenes this purpose, and we see nothing in the statute to support the limitation.

¶ 21 Recent Washington cases support our interpretation.   In State v. Grayson,²⁴ the court, discussing RCW 9.94A.530, noted:  “ ‘Acknowledged’ facts include all those facts presented or considered during sentencing that are not objected to by the parties.” Citing to RCW 9.94A.530, the court in In re Personal Restraint of Cadwallader ²⁵ observed:  “A sentencing court may rely on a stipulation or acknowledgement of prior convictions without further proof.”

¶ 22 Weaver failed to object, and thereby acknowledged his criminal history.   There was no error, and we affirm.

¶ 23 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

ADDITIONAL BACKGROUND

¶ 24 Trial was first set for September 2003.   Over the course of almost two years, trial was continued approximately nine times, because Weaver changed attorneys numerous times and suffered health problems. When trial at last started in February 2005, Weaver's attorney filed two motions to continue and a motion to withdraw, all of which were denied.

¶ 25 During trial, defense counsel brought out some inconsistencies between R.T.'s testimony and her initial statement to police.   The most significant inconsistency related to the date of the incident.   R.T. broke her ankle on December 10, 2002.   She first told police that Weaver raped her five days before she broke her ankle, but later realized it was two days before, on December 8. R.T. had the abortion on March 21, 2003, or 14 weeks and five days after December 8. The doctor administering the abortion estimated conception occurred 11 weeks before, plus or minus 10 days, between December 19, 2002 and January 14, 2003.   But the doctor qualified her estimate because R.T. did not have a firm memory of when her last menstruation began, and because the estimate was based on fetus size statistics developed in the 1940s and 1950s.

¶ 26 In the middle of trial, Weaver motioned to submit a medical report indicating that he was currently sterile, and sought a three to seven week continuance to develop evidence that he was sterile at the time of the incident.   The court denied both motions.

¶ 27 The court also imposed an exceptional minimum sentence of 250 months of confinement based on the jury's finding that Weaver impregnated a minor.

¶ 28 Weaver contends the court erred by denying two motions to continue, denying defense counsel's motion to withdraw, and miscalculating his offender score.   He also contends he was denied due process and effective assistance of counsel.

Continuances

¶ 29 Weaver argues that defense counsel was inadequately prepared, and the court's denial of his motion to continue denied him effective assistance of counsel and due process.   Weaver particularly points to a statement by the judge that she lacked the authority to grant his motion, which he characterizes as a failure to exercise-and, consequently, an abuse of-her discretion.

¶ 30 When ruling on a motion to continue, the trial court “may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure.” 26  In sex offense trials, the court must also consider any detriment to a child victim that a continuance could cause.27  We review denial of a motion to continue for abuse of discretion.28  A court abuses its discretion when its decision or order is manifestly unreasonable or its discretion is based on untenable grounds or untenable reasons.29

¶ 31 The history of the case is often relevant, as it is here.   Continuances were granted at least nine times because one attorney withdrew, Weaver fired several others, and Weaver suffered various health problems.   Three days before trial, the chief criminal judge denied yet another continuance, and instructed the trial judge to do the same if the motion was renewed.

¶ 32 As the chief judge predicted, Weaver moved to continue on the day of trial, on the same grounds.   Weaver's attorney had been on the case for five months, but claimed he had had too little time to interview the State's DNA expert, hire his own DNA expert, or spend enough time with Weaver to thoroughly prepare.   The State objected, citing the long history of continuances.

¶ 33 The judge explained:  “My explicit instructions from the criminal presiding judge are to go forward with the case, to make sure that the State makes the witnesses available at noon or at four and to deny any second request for a continuance that defense counsel might make․ I don't really have authority to give a continuance.” 30  Nonetheless, the court reviewed the list of witnesses and the anticipated schedule to “see if there's a remedy to this preparation issue.” 31  Defense counsel's comments demonstrated familiarity with the State's witnesses and their anticipated testimony, and he had already planned what testimony to elicit from defense witnesses.   The court ensured the State's witnesses were available for defense interviews and denied the motion.

¶ 34 Despite its comment that it lacked authority,32 the court in fact soundly exercised its discretion by inquiring into the actual state of preparedness and by ensuring that the defense had access to the State's witnesses.   The court had information sufficient to belie any claim of lack of preparation.   The court did not abuse its discretion in denying Weaver's motion to continue.

Motion to Withdraw

¶ 35 Defense counsel sought to withdraw just as jury selection began.   In chambers with Weaver and the court, he alleged Weaver had given him worthless bonds as payment for his services.   He also complained that Weaver had hindered his trial preparation:

[E]ven before this issue, we never could talk about the merits of the case.   And now, I'm just pissed at him, to be real frank.   I've been led down the primrose path.   I've been lied to in many ways, many times, under many circumstances.

․

When we're here, he's trying to pass me notes of very substantive stuff.   He's giving me look, look, look, all these witnesses.   I can't deal with that during the trial and quite frankly, I don't know what his motives are.   I suspect them, but I have no proof that he's deliberately trying to defraud me.   But the bottom line is I'm being defrauded and that's sort of like the straw that's broken the camel's back.

․

The bottom line, Your Honor, is I can't be the advocate I need to be for my client.   I was ill-prepared to start this trial.   I did my best, and a lot of the failures of being more prepared lie on Mr. Weaver's shoulders.33

Weaver attempted to placate counsel and keep him on the case.   He explained he did not know the bonds were worthless, that he was working to secure payment, and that he had offered a Porsche or a Land Rover as payment.   Although counsel continued to assert that Weaver had attempted fraud, neither counsel nor Weaver suggested that the conflict was irreconcilable.

¶ 36 The court denied the attorney's motion, finding that Weaver's conduct was part of a strategy to delay trial.   The court told defense counsel she would look into the availability of public funds to pay his fee.   The court also admonished Weaver that his counsel was an excellent, experienced defense attorney.   Trial went forward, and the matter did not again arise.

¶ 37 When a criminal case has been set for trial, a lawyer may not withdraw except with the court's written consent “for good and sufficient reason.”  34  Good cause includes a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.35  Lack of rapport is not a basis for withdrawal of counsel. 36  If ordered by the court, an attorney shall continue representing a client notwithstanding the attorney's good cause for withdrawal. 37  We review the trial court's decision denying counsel's motion to withdraw for an abuse of discretion.38

¶ 38 Weaver now contends the court was presented with an irreconcilable attorney-client conflict and failed to make a sufficient inquiry.   In determining whether the court abused its discretion by failing to find an irreconcilable conflict between an attorney and client, we consider the extent of the conflict, the adequacy of the trial court's inquiry, and the timeliness of the motion.39

¶ 39 We have carefully reviewed the record.   Defense counsel communicated great frustration, asserted that he had been misled about the bonds, and stated that his ability to represent Weaver would be affected thereby, thus raising at least the possibility of a serious conflict.   But in the chambers discussion, Weaver attempted to placate him, wanted him to remain on the case, and pledged his good faith.   This exchange was observed only by the court.   The degree to which an attorney-client relationship has deteriorated is best determined by the judge who hears from and observes the parties.   Weaver did not wish counsel to withdraw, and the dispute essentially centered upon Weaver's failure to pay counsel.   The court addressed the fee issue, and while counsel used strong language, the court clearly did not believe there was either a complete breakdown in communication or an irreconcilable conflict.   Further, the court admonished Weaver on the record and spoke in praise of counsel, who accepted the court's ruling without further objection and went on to conduct a very effective defense.   Indeed, Weaver has pointed to nothing in the record suggesting his attorney provided anything other than excellent representation.   Certainly the record supports the court's observation that Weaver was “trying to delay the inevitability of a jury verdict in this case.” 40

¶ 40 The court's inquiry was sufficiently thorough, and we see no abuse of discretion.

Continuance for Additional Evidence

¶ 41 In the middle of trial, Weaver asked for a continuance of three to seven weeks to obtain archived medical records that would allegedly prove he was sterile at the time of the rape, thereby raising doubts about the State's DNA evidence.   According to Weaver, he was found to be sterile after having measles in 2000, and adoption and medical records existed that would confirm his claim.   Weaver did produce a report showing he was sterile at the time of trial, although his doctor explained that current sterility was not indicative of past sterility.

¶ 42 Before ruling on the motion, the court obtained the referenced adoption records.   Those records did not support Weaver's claim.   An adoption preplacement report dated May 19, 2000 reported that Weaver's wife had had three failed pregnancies, the couple had “undergone some fertility testing, which has not provided many answers,” 41 they were not then using contraception, and that Weaver told the caseworker he was willing to get a vasectomy to protect his wife from further emotional and physical trauma.

¶ 43 Weaver explained that the pregnancies were in vitro and the vasectomy comment was misquoted.   But the court disbelieved him, and refused to interrupt the trial to await the archived medical records Weaver sought.   The court noted, however, that Weaver could submit evidence corroborating his claim in a post-trial motion and the court would consider it.   Weaver did not do so.

¶ 44 We see no abuse of discretion in the court's ruling.

Sentencing

¶ 45 Weaver makes two additional arguments seeking to avoid the inclusion of the prior burglaries in his offender score.   First, he claims the title on the criminal history document was misleading such that he could not be expected to know it would influence the calculation of his offender score and therefore did not object.

¶ 46 This contention is without merit.   The criminal history sheet was part of the “Presentence Statement of the King County Prosecuting Attorney,” which carried a cover page noting:  “The following attachments are incorporated by reference into prosecutor's statement.”   The list of attachments included the “[p]rosecutor's statement of defendant's criminal history (Appendix B).” 42  The fact that the attachment was originally prepared as part of a plea negotiation with Weaver (“Appendix B to Plea Agreement/Prosecutor's Understanding of Defendant's Criminal History”) 43 does not engender confusion as to its purpose or import at his sentencing.

¶ 47 Weaver also complains that the judgment and sentence does not enumerate the misdemeanors that prevented the burglaries from washing out, which he contends further demonstrates that his score was miscalculated.   This argument too is without merit.   The judgment and sentence form requires enumeration of the “criminal history used in calculating the offender score.” 44  The burglaries are listed.   Whether a prior conviction washes out is a predicate question, answered before the court decides to count the felony in calculating the score.   Weaver cites no authority for his contention that the court has a duty to list the misdemeanors in the judgment and sentence.45  But even were there such a duty, any error is clerical only, and the remedy would be remand for correction of the judgment and sentence, not a new sentencing hearing with the burglary priors excluded.

Additional Grounds

¶ 48 In a statement of additional grounds, Weaver also contends he was denied effective assistance of counsel because his attorney was not given adequate time to prepare, the court denied discovery requests, and the court declined to allow his attorney to withdraw.   Weaver points to nothing in the record suggesting counsel was ineffective, and does not explain how additional preparation or discovery would have changed the outcome of the case.   We see no error here.

¶ 49 Affirmed.

FOOTNOTES

1.   Report of Proceedings (RP) (Feb. 17, 2005) at 284.

2.   An offender score calculation is reviewed de novo.  State v. Rivers, 130 Wash.App. 689, 699, 128 P.3d 608 (2005).

3.   RCW 9.94A.525(2).

4.   RCW 9.94A.530.

5.   RCW 9.94A.500.

6.   RCW 9.94A.530(2) (emphasis added).

7.   Clerk's Papers at 190.

8.   RP (Apr. 4, 2005) at 376.

9.   State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003).

10.   Id.

11.   Id.

12.   Advanced Silicon v. Grant County, 156 Wash.2d 84, 89, 124 P.3d 294 (2005).

13.   --- Wash. ----, 162 P.3d 439 (2007).

14.   Id. at 444.

15.   137 Wash.2d 472, 973 P.2d 452 (1999).

16.   Id. at 483, 973 P.2d 452 (quoting RCW 9.94A.370(2)) (emphasis omitted).

17.   Id. (emphasis and footnote omitted).

18.   147 Wash.2d 515, 55 P.3d 609 (2002).

19.   RCW 9.94A.500.

20.   Id. (emphasis added).

21.   RCW 9.94A.030(14).

22.   Presentence reports from DOC were once routine in all felony cases, but are now common only in specific situations.   Weaver's offense is one of those situations, and in response to Mendoza, the State seeks to supplement the record to include the DOC report filed below.   The State represents that the DOC report contained the identical document outlining Weaver's criminal history.  (This is not surprising, since a DOC employee signed the document originally submitted by the State.)   But we need not supplement the record because the State's presentence report satisfies the statute.

23.   CrR 7.1(a)

24.   154 Wash.2d 333, 339, 111 P.3d 1183 (2005).

25.   155 Wash.2d 867, 873, 123 P.3d 456 (2005).

26.   State v. Downing, 151 Wash.2d 265, 273, 87 P.3d 1169 (2004).

27.   RCW 10.46.085.

28.   Downing, 151 Wash.2d at 272, 87 P.3d 1169.

29.   State v. Brown, 132 Wash.2d 529, 572, 940 P.2d 546 (1997).

30.   RP (Feb. 14, 2005) at 9, 12.

31.   Id. at 13.

32.   We suspect the court was referring not just to the instruction from the chief criminal judge, but to King County local criminal rule 4.5, which provides that “[a]ll rulings of the Court at omnibus hearings or otherwise made in the criminal motion department shall be binding on the parties and shall not be relitigated at trial.”   We further note that judicial economy generally prohibits renewing a motion in the same proceeding without additional grounds.   See Tardif v. Hellerstedt, 37 Wash.2d 940, 941, 226 P.2d 908 (1951).   Also, local civil rule 7(b)(6) prohibits parties from remaking the same motion to a different judge without demonstrating new facts or circumstances.   The record does not make clear, however, upon which authority the court relied, so we do not resolve the issue on this basis.

33.   Id. at 74-75.

34.   CrR 3.1(e).

35.   State v. Stenson, 132 Wash.2d 668, 734, 743, 940 P.2d 1239 (1997).

36.   State v. Hegge, 53 Wash.App. 345, 350, 766 P.2d 1127 (1989).

37.   RPC 1.15(c) (2005).

38.   Stenson, 132 Wash.2d at 743, 940 P.2d 1239.

39.   In re Pers. Restraint of Stenson, 142 Wash.2d 710, 724, 16 P.3d 1 (2001).

40.   RP (Feb. 16, 2005) at 88.

41.   RP (Feb.22, 2005) at 325.

42.   Clerk's Papers at 182.

43.   Id. at 190.

44.   Id. at 81.

45.   See Beal v. City of Seattle, 134 Wash.2d 769, 777, 954 P.2d 237 (1998) (arguments made without citations to legal authority are not properly before appellate court).

ELLINGTON, J.