Opinion
No. 30237-3-II.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 02-1-00824-9. Judgment or order under review. Date filed: 03/24/2003. Judge signing: Hon. Leonard W Costello.
Counsel for Appellant(s), Thomas E. Jr Weaver, Attorney at Law, 569 Division St. Ste E, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Jennifer Anne Irvine Forbes, Kitsap County Prosecutors Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Albert Earl Van Buren appeals his exceptional sentence imposed after he entered an Alford plea to two counts of third degree rape of a child and one count of third degree rape. Van Buren challenges the sentencing court's calculation of his offender score and the reasons for imposing an exceptional sentence. Although the sentencing court miscalculated Van Buren's offender score by one point, the error was harmless. Moreover, the trial court had a sufficient basis to impose an exceptional sentence of 120 months plus 36 to 48 months community custody to follow his confinement. Thus, we affirm.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (`[a]n individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime').
In a footnote, Van Buren's appellate counsel also suggests that Van Buren's trial counsel was ineffective. Mysteriously he also concedes that no prejudice appears. We do not review arguments or `issues for which inadequate argument has been briefed or only passing treatment has been made.' State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)). Nor is there ineffective assistance of counsel without prejudice. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
FACTS
On October 7, 2002, the State charged Van Buren by amended information with two counts of third degree rape of a child and one count of third degree rape. The charges arose from three separate incidents that occurred between August 2001 and June 2002. Van Buren entered an Alford plea on all three charges. The plea agreement included a provision that released the State from the agreement's obligation if Van Buren attempted to withdraw his guilty plea, as well as a provision that a breach did not vacate Van Buren's guilty plea or resulting convictions. On November 22, 2002, Van Buren filed a motion to withdraw his guilty plea. On January 22, 2003, the State filed a motion to find that Van Buren breached his plea agreement. On March 19, 2003, the trial court denied Van Buren's motion to withdraw the plea and found that he had breached his plea agreement.
During the sentencing hearing on March 21, 2003, Van Buren exercised his right to speak. While speaking to the court, Van Buren blamed his prior defense counsel, as well as the victims and their parents, for failing to `take responsibility for their actions.' Report of Proceedings (RP) (March 21, 2003) at 17. Van Buren claimed that he, his family, and his fianc`e were the true victims.
The sentencing court found that Van Buren's multiple convictions, lack of remorse, and high offender score warranted imposing an exceptional sentence. Each of Van Buren's three convictions carried a standard range sentence of 60 months. Based on its findings, the sentencing court imposed an exceptional sentence of 120 months with 36 to 48 months of community custody. Van Buren then appealed his sentence.
ANALYSIS
Van Buren's standard range was 60 months on each count, totaling 180 months if the sentences were run consecutively. On appeal, Van Buren challenges the trial court's 120-month exceptional sentence. The trial court imposed an exceptional sentence based on two aggravating factors: (1) Van Buren's offender score is above `9'; and (2) Van Buren showed no remorse for his crimes. Van Buren argues that imposing an exceptional sentence for an offender score greater than `9' is legally insufficient and that his lack of remorse was a statement of innocence and not sufficiently aggravating to warrant an exceptional sentence. We disagree.
A court may impose an exceptional sentence if there are `substantial and compelling' reasons justifying the exceptional sentence. Former RCW 9.94A.535 (2000). When imposing an exceptional sentence, the court must articulate its reasons in findings of fact and conclusions of law. Former RCW 9.94A.535. The court may consider mitigating and aggravating factors, both statutory and nonstatutory. Former RCW 9.94A.535; State v. Gore, 143 Wn.2d 288, 313, 21 P.3d 262 (2001). As required by statute, the sentencing court issued findings of fact and conclusions of law with the two factors listed above. Thus, we consider whether these findings constitute sufficient justification for an exceptional sentence.
An appellate court may reverse an exceptional sentence only if it finds that (1) under a clearly erroneous standard, the reasons supplied by the sentencing court were not supported in the record which was before the judge; (2) under a de novo standard, those reasons do not justify a sentence outside the standard range; and (3) under an abuse of discretion standard, the sentence imposed was clearly excessive. State v. Rotko, 116 Wn. App. 230, 242, 67 P.3d 1098 (2003).
We first consider whether substantial evidence supports the sentencing court's reasons for imposing an exceptional sentence. The trial court found that Van Buren showed no remorse and it used this as an aggravating circumstance justifying the exceptional sentence. A lack of remorse may be a sufficient factor to justify an exceptional sentence. State v. Ross, 71 Wn. App. 556, 563, 861 P.2d 473, 883 P.2d 329 (1993), review denied, 123 Wn.2d 1019 (1994). The `mundane lack of remorse found in run-of-the-mill criminals' is not sufficient to warrant an exceptional sentence. State v. Wood, 57 Wn. App. 792, 800, 790 P.2d 220, review denied, 115 Wn.2d 1015 (1990). Thus, there must be an additional qualification, that is, the lack of remorse must be of an `aggravated or egregious' nature. Ross, 71 Wn. App. at 563; Wood, 57 Wn. App. at 800. Whether the lack of remorse was sufficiently aggravating or egregious depends on the facts of the case. Ross, 71 Wn. App. at 563.
Based on the record, the trial court's finding that Van Buren lacked remorse was not clearly erroneous. Van Buren correctly asserts that a sentencing court cannot use a defendant's continued assertion of innocence as a basis for an exceptional sentence. See State v. Russell, 69 Wn. App. 237, 251, 848 P.2d 743 (`[r]efusing to admit guilt or remaining silent is an exercise of one's rights, not an indication of lack of remorse'), review denied, 122 Wn.2d 1003 (1993). But during his statement to the sentencing court, Van Buren did not merely remain silent, proclaim his innocence, or dispute the facts of the case. Instead, Van Buren blamed his prior defense counsel and the victims and their parents for failing to `take responsibility for their actions' and claimed that he, his family, and his fianc`e were the true victims. RP (March 21, 2003) at 17.
A court may consider a defendant's blaming of the justice system and refusal to accept responsibility for the crimes when considering lack of remorse as a factor justifying an exceptional sentence. See Ross, 71 Wn. App. at 563. Here, there was ample support in the record for the trial court's findings; thus, they were not clearly erroneous.
In addition, one of the victim's parents provided evidence that Van Buren had hired an unnamed individual to intimidate and harass the victims. The trial court could not properly consider evidence of other crimes, namely that Van Buren had hired an individual to harass the victims. The trial court's findings establish that the trial court did not consider this allegation of an uncharged witness tampering offense in sentencing Van Buren.
We now consider the second element: whether, reviewing the matter de novo, the trial court's reasons justify an exceptional sentence. In its findings of fact, the trial court found that (1) Van Buren was convicted of two counts of third degree rape of a child and one count of third degree rape; and (2) Van Buren had an offender score of `15.' To support his proposition that a high offender score does not warrant an exceptional sentence, Van Buren relies on State v. Stephens, 116 Wn.2d 238, 242, 803 P.2d 319 (1991). But Van Buren's reliance is misplaced.
In Stephens, our Supreme Court held that offender scores are `simply restatements of the crimes for which [the defendant] was convicted' and that `a high offender score alone is insufficient to justify an exceptional sentence.' 116 Wn.2d at 242-43 (emphasis added). But a defendant, such as Van Buren, who is already at the upper limit of the sentencing grid `should receive a greater punishment if he commits more than one current crime.' Stephens, 116 Wn.2d at 243. Eight of Van Buren's offender score points were due to prior offenses. Van Buren's offender score exceeded the grid due to his multiple current offenses. Thus, imposing a standard sentence would result in Van Buren's receiving `free crimes' or crimes where there would be no additional punishment. Stephens, 116 Wn.2d at 243; see also State v. Coats, 84 Wn. App. 623, 628, 929 P.2d 507, review denied, 132 Wn.2d 1003 (1997).
A defendant sentenced for multiple current offenses, no one of which would warrant an exceptional sentence, may receive an exceptional sentence based on the number of crimes committed and the resulting high offender score. Stephens, 116 Wn.2d at 243-44. Similar to Coats, Van Buren's multiple current offenses took him off the grid and justify an exceptional sentence.
We next consider the third question of whether Van Buren's sentences were clearly excessive under an abuse of discretion standard. See Rotko, 116 Wn. App. at 242. A `clearly excessive' sentence is one that is `clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.' State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995) (quoting State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986)). In other words, a sentence is clearly excessive if it `shocks the conscience.' State v. Lindahl, 114 Wn. App. 1, 19, 56 P.3d 589 (2002), review denied, 149 Wn.2d 1013 (2003).
Here, we cannot say that the trial court's 120-month sentence was clearly excessive. Each of Van Buren's three convictions carry a standard range of 60 months. Run consecutively, the court had the jurisdiction to sentence Van Buren to 180 months. Instead, Van Buren received a total sentence of 120 months with community custody of 36 to 48 months. Van Buren received a sentence double that of only one of his three convictions. The sentencing court did not abuse its discretion by imposing an exceptional sentence double the standard range. See State v. Negrete, 72 Wn. App. 62, 71, 863 P.2d 137 (1993) (noting several cases which upheld exceptional sentences that doubled the presumptive range), review denied, 123 Wn.2d 1030 (1994). Van Buren has not shown that his 120-month sentence for three felony sex offenses `shocks the conscience.'
Van Buren also claims that the trial court miscalculated his offender score and reversal is mandatory. The State concedes that Van Buren's offender score should have been a `14' instead of `15.' Offender scores above `9' do not result in higher standard range sentences. RCW 9.94A.510. And Van Buren's standard range is not affected by the one point error in calculating his offender score. We review a trial court's calculation of an offender score de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003). Remand is necessary when the offender score is miscalculated unless the record clearly shows that the trial court would have imposed the same sentence. Tili, 148 Wn.2d at 358.
Here Van Buren's standard sentence range is unaffected by the miscalculation of his offender score and the sentencing court imposed an exceptional sentence. But an exceptional sentence is not automatically affirmed even if the miscalculation would not change the standard range sentence if the record demonstrates that the sentencing judge may not have imposed the exceptional sentencing with correct information. State v. Parker, 132 Wn.2d 182, 190, 937 P.2d 575 (1997). Thus, we must look beyond the SRA and determine whether the record is expressly clear that the same exceptional sentence would have been imposed regardless of whether the offender score was `14' or `15.' See Parker, 132 Wn.2d at 188-90.
In addition to the high offender score, the trial court imposed the exceptional sentence based on the multiple crimes, pattern of escalating violence, and lack of remorse. Unlike Parker, there is no indication that the sentencing court here based the exceptional sentence on an incorrect standard range. An offender score of `14' still exceeds the highest standard range and would result in Van Buren receiving free crimes. The trial court's findings state that the exceptional sentence is justified by the following aggravating circumstances: (a) the defendant's offender score is above the maximum of `9'; (b) the defendant shows no remorse for his actions/offenses.
In light of the factors relied on by the trial court, the record establishes that the trial court would have imposed the same sentence had it known that Van Buren's correct offender score was a 14 and not 15.
Thus, the trial court's exceptional sentence is proper and we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J.P.T., ARMSTRONG, JJ., concur.