State v. LopezState v. Lopez
State v. Lopez, 107 Wash.App. 270, 27 P.3d 237 (2001) vacated Respondent Lopez‘s lifelong persistent offender sentence because the state failed to establish the necessary predicate convictions with satisfactory evidence. The Court of Appeals remanded for sentencing on the existing record. We affirm.
FACTS
Sylvester Lopez was charged with four counts of first degree assault with a firearm and one count of unlawful possession of a firearm in the first degree. On direct examination Lopez admitted a previous conviction for first degree burglary. Verbatim Report of Proceedings (RP) at 318. A jury found Lopez guilty of two counts of first degree assault, two counts of the lesser-included offense of second degree assault, and one count of unlawful possession of a firearm in the first degree.
At sentencing the prosecution asked the court to impose a life sentence without the possibility of parole under the Persistent Offender Accountability Act (POAA),
[I]n order to impose the life sentence the Court has got before it, ... we need to have the prior offenses ... proved by a preponderance of the evidence, which would require ... two separate judgments and sentences for two separate incidents prior to that date that are serious offenses.
RP at 408-09. When asked to respond, the prosecution replied:
I don‘t, your Honor. I don‘t know if that—I guess that‘s a challenge that probably should have been brought up earlier. We can provide copies of the judgments and sentences in both cases. I don‘t have them with me right now.
Id. at 409, 27 P.3d 237. The judge declined to accept the prosecutor‘s offer:
Well, I don‘t—I am not aware of any procedure that requires that. I‘m going to go ahead and proceed with sentencing today. Assuming that an appeal is filed in the case, if it becomes apparent during the processing of that appeal that procedurally we have omitted a step, we can revisit that and correct it if that is necessary....
Id. at 409-10, 27 P.3d 237. The judge sentenced Lopez to life without parole. Id. at 412, 27 P.3d 237.
Lopez appealed his conviction and life sentence, alleging (1) ineffective assistance of counsel; (2) violation of his due process right to be adequately notified that he was facing a life sentence; and (3) the imposition of his sentence as a persistent offender without competent proof of prior convictions. The Court of Appeals granted Lopez‘s ineffective assistance of counsel claim in part and vacated his conviction for unlawful possession of a firearm. Lopez, 107 Wash.App. at 273, 27 P.3d 237. It did not reach Lopez‘s due process claim, overturned the persistent offender finding, and remanded for sentencing before a different judge on the existing record. Id. at 280, 27 P.3d 237.
The state petitioned for discretionary review on the sole issue of whether the Court of Appeals erred when it remanded for sentencing without providing the state an opportunity to present evidence of Lopez‘s prior convictions on remand. State‘s Pet. for Review at 2, 5. We granted review on this issue.
ANALYSIS
“The best evidence of a prior conviction is a certified copy of the judgment.” State v. Ford, 137 Wash.2d 472, 480, 973 P.2d 452 (1999). The state may introduce other comparable evidence only if it is shown that the writing is unavailable for some reason other than the serious fault of the proponent. State v. Fricks, 91 Wash.2d 391, 397, 588 P.2d 1328 (1979).
Here, Lopez admitted to a prior conviction for first degree burglary. Thus, the sentencing court properly considered this conviction for the purposes of determining Lopez‘s sentence.
However, a remand for an evidentiary hearing is only appropriate when the defendant has failed to specifically object to the state‘s evidence of the existence or classification of a prior conviction.2State v. Ford, 137 Wash.2d 472, 485, 973 P.2d 452 (1999); State v. McCorkle, 88 Wash.App. 485, 499, 945 P.2d 736 (1997), aff‘d 137 Wash.2d 490, 973 P.2d 461 (1999). Where the defendant raises a specific objection and “the disputed issues have been fully argued to the sentencing court, we ... 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 Wash.2d at 485, 973 P.2d 452.
We require a specific objection to offer the trial court the opportunity to correct the error. Spinelli v. Economy Stations, Inc., 71 Wash.2d 503, 508, 429 P.2d 240 (1967). From this record it is apparent both the prosecution and the sentencing court were laboring on the false assumption the defendant was required to provide an accurate statement of his criminal history.3See
But this was not Lopez‘s obligation. Lopez did not enter a plea agreement. He had no obligation to present the court with evidence of his criminal history. Ammons, 105 Wash.2d at 183, 713 P.2d 719. Lopez objected to the court‘s imposition of a life sentence absent proof of a prior offense by a preponderance of the evidence. His objection was sufficient to notify the sentencing court of its obligation to demand evidence of the prior convictions alleged by the state. Thus, the Court of Appeals correctly remanded for sentencing on the existing record.
Notwithstanding Lopez‘s specific objection, the state contends the mandatory character of the POAA requires it be granted a second opportunity to prove Lopez‘s prior convictions on remand. State‘s Pet. for Review at 5-6. The state argues our decision in State v. James consolidated on appeal with State v. Morley, 134 Wash.2d 588, 952 P.2d 167 (1998) and
However, neither
Similarly, the state‘s reliance on
Finally, the state argues it offered to provide copies of Lopez‘s judgments and sentences and should not be penalized for the sentencing court‘s error in proceeding without them. State‘s Pet. for Review at 4-5. But the record reveals although the state argued Lopez was a persistent offender at the sentencing hearing, it was nevertheless completely unprepared to prove his prior offenses. “The State does not meet its burden through bare assertions, unsupported by evidence.” Ford, 137 Wash.2d at 482, 973 P.2d 452. “To uphold procedurally defective sentencing hearings would send the wrong
The Court of Appeals is affirmed and the case is remanded to a different trial court judge for resentencing consistent with this opinion.
WE CONCUR: ALEXANDER, C.J., SMITH, JOHNSON, CHAMBERS, OWENS, JJ.
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
that 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
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 611.
In 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 611. 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 612.
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 Wash.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 Wash.2d 919, 926, 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.2
In addition, cases relied on by the majority do not dictate its result.3 In State v. Ford, 137 Wash.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 Wash.2d at 475, 973 P.2d 452. 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 sentence because the defendant had not specifically put the sentencing court on notice of the specific defects claimed. Id. at 476, 973 P.2d 452. 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 Wash.2d at 486, 973 P.2d 452.
The court in Ford observed in dicta that “[i]n the normal case, where the disputed issues have been fully argued to the sentencing
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 Wash.2d 490, 494, 973 P.2d 461 (1999),4 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 Wash.2d at 494, 973 P.2d 461. 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 on 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 Wash.2d at 495, 973 P.2d 461.
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 Wash.2d at 496, 973 P.2d 461. 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, 973 P.2d 461. 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. Id. at 497, 973 P.2d 461.
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.