State v. Bergstrom

• Court: Washington Supreme Court
• Writing for the Court: Fairhurst
• Citation: State v. Bergstrom, 169 P.3d 816, 162 Wn.2d 87 (Wash. 2007)
• Decision Date: 25 October 2007
• Docket Number: No. 78355-1.
• Parties: STATE of Washington, Respondent, v. Gordon David BERGSTROM, Petitioner.

169 P.3d 816

162 Wn.2d 87

STATE of Washington, Respondent, v. Gordon David BERGSTROM, Petitioner.

No. 78355-1.

Supreme Court of Washington, En Banc.

Argued March 22, 2007.

Decided October 25, 2007.

Jason Brett Saunders, Washington Appellate Project, Seattle, WA, for Petitioner.

Scott Frederick Leist, James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.

FAIRHURST, J.

¶ 1 Gordon Bergstrom appeals his sentence for first degree unlawful possession of a firearm, arguing that the sentencing court incorrectly placed the burden on him to prove that his prior convictions encompassed the same criminal conduct. At his sentencing hearing, Bergstrom, although represented by counsel, argued pro se that some of the prior crimes included in his criminal history involved same criminal conduct, in essence disputing the standard sentence range presented in both the State and defense presentence reports.¹ The sentencing court refused to deviate from that standard range because the court did not have evidence demonstrating that any of his prior convictions constituted same criminal conduct. We hold that the State has the burden of proving prior criminal history and remand for resentencing. Additionally, given the unique facts of this case, we hold that both parties may present new evidence relating to Bergstrom's prior convictions and affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 On April 15, 2004, a jury convicted Bergstrom of first degree unlawful possession of a firearm. Sentencing hearings were scheduled and then continued on April 22, June 11, July 30, and August 27, 2004, before the first hearing was finally held on November 5, 2004. While it is unclear why each hearing was continued, the record does show that at least one of the hearings was continued because of Bergstrom's medical problems. Bergstrom also changed attorneys between the first and last scheduled sentencing hearing dates.

¶ 3 Prior to sentencing, both the State and defense counsel submitted sentence recommendations. The State's presentence report stated that Bergstrom's criminal history included 11 felony convictions, a seriousness level of VII and a standard sentence range of 87 to 116 months. The defense presentence report agreed that Bergstrom's standard sentence range was 87 to 116 months.

¶ 4 At the November 5, 2004 sentencing hearing, Bergstrom's attorney argued for a sentence less than the statutory minimum based on Bergstrom's poor health. Bergstrom's attorney also requested that Bergstrom be placed on electronic home monitoring (EHM). During this hearing, neither Bergstrom nor Bergstrom's attorney disputed the State's representation of his criminal history, the offender score of 11, or the standard sentence range of 87 to 116 months. The sentencing court denied the exceptional mitigated sentence request but continued the hearing to allow Bergstrom's attorney time to determine whether Bergstrom was eligible for EHM.

¶ 5 At the November 17, 2004 sentencing hearing, both the State and Bergstrom's attorney agreed that EHM was not available to Bergstrom. During this hearing, Bergstrom argued pro se that his offender score was 7, not 11, because some of his prior crimes encompassed the same course of criminal conduct. Bergstrom's attorney did not join her client's argument; instead she stated, "I believe he believes that his-some of his priors count as same criminal conduct. I've actually looked at this issue, and I'm not going to take a position contrary to my client's. I'll let him make his argument." Verbatim Report of Proceedings (VRP) (Nov. 17, 2004) at 4. The November 17, 2004 hearing was the first time the State's offender score calculation was disputed.

¶ 6 In response to Bergstrom's pro se argument, the State made three arguments. First, prior convictions are presumed not to encompass the same criminal conduct unless an express finding was made at the time of the prior sentencing. Second, Bergstrom's argument was untimely because the sentencing hearing had already been continued multiple times and this issue had not been raised previously. Third, Bergstrom had no right to hybrid representation, so if he wanted to proceed pro se he would be required to dismiss his attorney.

¶ 7 Bergstrom's attorney did not respond to the prosecutor's arguments, did not support or make her client's argument, and did not object to the offender score calculation of 11. After the court asked Bergstrom's attorney if she was objecting to her client's position, she stated, "I've really never been in this situation before, your Honor. I feel like I cannot take a position contrary to my client's.... I could be wrong about the same criminal conduct regarding the forgeries." Id. at 7.

¶ 8 In response to the court's questions, the State contended that the defense was required to present some evidence that the prior crimes encompassed the same criminal conduct. Following the State's representation, the court determined that it had insufficient evidence to make a same criminal conduct finding. Bergstrom then asked if his attorney could get the prior judgments and sentences to provide the court with additional information. The sentencing judge responded that he was reluctant to continue the sentencing hearing again given the previous continuances and advised Bergstrom of his right to "some post-sentencing relief of some sort." Id. at 10.

¶ 9 The sentencing judge sentenced Bergstrom to 87 months based on an offender score of 11 given the following criminal history: forgery (Sept. 9, 1999); second degree possession of stolen property (July 16, 1999); second degree theft (May 13, 1994); forgery (Nov. 4, 1994); forgery (Nov. 4, 1994); forgery (Nov. 4, 1994); Violation of the Uniform Controlled Substances Act (VUCSA) (May 7, 1990); VUCSA (May 7, 1990); forgery (May 7, 1990); forgery (May 7, 1990); and first degree robbery (Apr. 9, 1984). Clerk's Papers at 31.

¶ 10 In an unpublished opinion, the Court of Appeals affirmed Bergstrom's conviction but remanded for resentencing, permitting either party to introduce evidence. State v. Bergstrom, noted at 130 Wash.App. 1037, 2005 WL 3150315. We granted Bergstrom's subsequent petition for review on the issue of whether the State may present additional evidence at resentencing. State v. Bergstrom, 158 Wash.2d 1010, 145 P.3d 1214 (2006).

II. ISSUE

¶ 11 Given these unique circumstances — where defense counsel acknowledged the offender score, defense counsel never retracted the acknowledgment, and the only objection was a pro se argument at a hearing to determine the eligibility for EHM after repeated continuances — is it inequitable to deny the State an opportunity to prove the existence of Bergstrom's prior convictions at the resentencing hearing?

III. ANALYSIS

¶ 12 We review a sentencing court's calculation of an offender score de novo. State v. Tili, 148 Wash.2d 350, 358, 60 P.3d 1192 (2003). Generally, the trial court calculates an offender score by adding together the current offenses and the prior convictions. RCW 9.94A.589(1)(a); State v. Vike, 125 Wash.2d 407, 410, 885 P.2d 824 (1994). But if the trial court finds that some of the prior offenses encompass the same criminal conduct, then those offenses count as only one crime. RCW 9.94A.589(1)(a).

¶ 13 The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence. In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 876, 123 P.3d 456 (2005); State v. Lopez, 147 Wash.2d 515, 519, 55 P.3d 609 (2002). The best evidence to establish a defendant's prior conviction is the production of a certified copy of the prior judgment and sentence. Lopez, 147 Wash.2d at 519, 55 P.3d 609 (citing State v. Ford, 137 Wash.2d 472, 480, 973 P.2d 452 (1999)). Where the sentencing court's offender score determination is challenged on appeal for insufficient evidence of prior convictions, the case law provides three approaches to analyze the issue, assuming the defendant has not pleaded guilty.²

¶ 14 First, if the State alleges the existence of prior convictions at sentencing and the defense fails to "specifically object" before the imposition of the sentence, then the case is remanded for resentencing and the State is permitted to introduce new evidence. Id. at 520, 55 P.3d 609. For example, in Ford, the State alleged that the defendant's out-of-state crimes were properly classified as felony crimes under Washington law. 137 Wash.2d at 475, 973 P.2d 452. The defense did not object, and the State did not present evidence to support the classification. Id. On appeal, Ford challenged the classification and this court reversed and remanded, permitting the State to present new evidence at resentencing because the defendant failed to specifically put the court on notice of any apparent defects. Id. at 476, 973 P.2d 452.

¶ 15 Second, if the defense does specifically object during the sentencing hearing but the State fails to produce any evidence of the defendant's prior convictions, then the State may not present new evidence at resentencing. Id.; Cadwallader, 155 Wash.2d at 877-78, 123 P.3d 456. After the defense specifically objects, putting the sentencing court on notice that the State must present evidence, the State is held to the initial record on remand. Ford, 137 Wash.2d at 485, 973 P.2d 452.

¶ 16 For example, in Lopez, the State asked the sentencing court to impose a life sentence under the Persistent Offender Accountability Act. 147 Wash.2d at 518, 55 P.3d 609. The defense objected that the State had not provided evidence of Lopez's prior convictions. Id. The State argued that the objection was untimely and offered to present evidence, but the court sentenced Lopez without evidence of the prior crimes. Id. On appeal, this court held that the State was not entitled to present new evidence at resentencing because the defense specifically objected and the objection was specific enough...