Opinion
No. 64444-1-I.
September 13, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-1-04357-1, William L. Downing, J., entered October 12, 2009.
Affirmed by unpublished opinion per Ellington, J., concurred in by Lau and Spearman, JJ.
The court denied Jose Guerrero's request for a first-time offender waiver and imposed standard range sentences for his convictions for residential burglary and felony violation of a no contact order. We find no abuse of discretion and affirm.
In May 2009, Guerrero entered Theam Tim's home in violation of a no contact order. When she came home, Guerrero repeatedly knocked her to the ground, kicked her in the stomach, and held a blanket against her face so she could not breathe. Guerrero prevented her from leaving the home for about an hour until she was able to crawl out a window to escape.
The State charged Guerrero with first degree burglary and felony violation of a no contact order (FVNCO). Pursuant to a plea agreement, Guerrero pleaded guilty to reduced charges of residential burglary and FVNCO.
Guerrero requested a first-time offender waiver under RCW 9.94A.650. Under that statute, a court may waive the imposition of a sentence within the standard range for a first-time offender and instead impose up to 90 days confinement and community custody. A first-time offender is one who has never been previously convicted of a felony or participated in a program of deferred prosecution for a felony.
RCW 9.94A.650(2), (3).
RCW 9.94A.650(1). Additionally, offenders convicted of violent offenses, sex offenses, and some drug offenses are not eligible for the waiver. Id.
The court has "very broad discretion" in granting or denying a sentence under the first-time offender alternative. The failure to meaningfully consider a request for the waiver or a categorical refusal to impose it for a class of offenders is effectively a failure to exercise discretion and is subject to reversal.
State v. Boze, 47 Wn. App. 477, 481, 735 P.2d 696 (1987) (discussing predecessor statute RCW 9.94A.120).
See State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).
Guerrero contends the court denied his request solely because he has a prior misdemeanor conviction, even though a misdemeanor record does not make one ineligible for a first-time offender waiver. He argues the court's reliance on the misdemeanor shows it failed to give his request meaningful consideration and relied upon impermissible grounds to deny it.
Guerrero misapprehends the court's reasoning. The court did not refuse the waiver simply because of Guerrero's misdemeanor record. In fact, the court acknowledged the misdemeanor "doesn't legally preclude a first-offender waiver treatment under the law." In this case, however, the misdemeanor conviction was for an earlier assault upon the same victim, and the resulting sentence required Guerrero to have no contact with her. Guerrero violated the order and assaulted her again, resulting in the present conviction. Under the circumstances, the court reasonably concluded "it would certainly undercut the seriousness of all sentencings, and the previous one in this case in particular, for the court to treat this as a first offense at this time."
Report of Proceedings (Oct. 9, 2009) at 12.
Id. at 26.
The record demonstrates the court gave Guerrero's request meaningful consideration and did not categorically refuse to impose the waiver based upon his prior misdemeanor conviction. There was no abuse of discretion.
Affirmed.
We concur.