State v. Canfield, 75357-1.

• Decision Date: 21 July 2005
• Docket Number: No. 75357-1.,No. 76561-8.,No. 76464-6.,75357-1.,76464-6.,76561-8.
• Parties: STATE of Washington, Petitioner, v. Michael Christopher CANFIELD, Respondent. State of Washington, Respondent, v. Raymond D. Demry, Appellant. State OF WASHINGTON, Respondent, v. Donald C. Speirs, Appellant.
• Court: Washington Supreme Court

116 P.3d 391

154 Wn.2d 698

STATE of Washington, Petitioner, v. Michael Christopher CANFIELD, Respondent.

State of Washington, Respondent, v. Raymond D. Demry, Appellant.

State OF WASHINGTON, Respondent, v. Donald C. Speirs, Appellant.

No. 75357-1.

No. 76464-6.

No. 76561-8.

Supreme Court of Washington, En Banc.

Argued March 8, 2005.

Decided July 21, 2005.

Teresa Jeanne Chen, Grant County Prosecutors Office, Ephrata, David Bruce Koch, Dana M. Lind, Nielsen Broman Koch PLLC, Seattle, for Petitioner.

Michael C. Canfield, Walla Walla, Patrick Joseph Preston, King County Prosecutor's Office, Seattle, Janet G. Gemberling, Spokane, Joshua Choate, Island County Prosecutors Office, Coupeville, for Respondent.

CHAMBERS, J.

Allocution is the right of a criminal defendant to make a personal argument or statement to the court before the pronouncement of sentence. It is the defendant's opportunity to plead for mercy and present any information in mitigation of sentence. Washington recognizes the right of a defendant to allocute at sentencing. However, whether a defendant who violates the conditions of a suspended sentence is entitled to allocution at a revocation hearing is a question of first impression in this court. We conclude that a defendant at a revocation hearing has a limited right to allocute. A denial of that right must, however, be raised at the revocation hearing in order to preserve the issue for appeal.

FACTS

¶ 2 CANFIELD. Michael C. Canfield pleaded guilty to child molestation and was sentenced to 89 months in prison. His prison sentence was suspended pursuant to a special sex offender sentencing alternative (SSOSA).¹ Some time later the Department of Corrections filed a notice of violation and recommended revocation of Canfield's suspended sentence. The court held a revocation hearing on November 8, 2002. Canfield was invited to testify but declined to do so after conferring with his attorney. The court revoked Canfield's suspended sentence and ordered execution of the 89 month sentence. The trial court did not solicit a statement from Canfield prior to revoking the sentence. Canfield appealed. The Court of Appeals reversed because the trial court failed to invite allocution and remanded the case for a new sentencing hearing. State v. Canfield, 120 Wash.App. 729, 86 P.3d 806 (2004).

¶ 3 SPEIRS. Like Canfield, Donald C. Speirs pleaded guilty to child molestation. He was sentenced to 68 months in prison, which was suspended pursuant to a SSOSA. The State filed a report contending that he had violated the terms of his SSOSA and at a revocation hearing on December 11, 2003, the court found that Speirs had failed to make satisfactory progress in treatment and that he willfully violated the conditions of his SSOSA. Without soliciting a statement from Speirs, the court revoked Speirs' SSOSA.

¶ 4 DEMRY. Raymond D. Demry was convicted of second degree rape and first degree kidnapping and sentenced to 63 months in prison followed by 24 months of community placement. He served his time and was released from prison. But Demry was reincarcerated at least three times for violations of his community placement. On October 31 and November 14, 2003, revocation hearings were held. The court found that six of seven alleged violations were willful and imposed sanctions of 60 days for each violation for a total of 360 days. The judge failed to ask Demry if he wished to speak before the sentence was imposed, and refused to allow Demry to speak despite Demry's request that he be allowed to "say something" at the conclusion of the hearing. Demry Report of Proceedings (DRP) at 72. We granted review and consolidated these three cases. State v. Canfield, 152 Wash.2d 1028, 103 P.3d 200 (2004).

THE NATURE OF THE RIGHT OF ALLOCUTION

¶ 5 The United States Supreme Court has said that the denial of the right of allocution is "an error which is neither jurisdictional nor constitutional," nor is it "a fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). The right of allocution has its roots in common law. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) ("The design of [the federal allocution rule] did not begin with its promulgation; its legal provenance was the common-law right of allocution."). At common law, the "object of allocution was to afford the prisoner an opportunity to move in arrest of judgment pleading specific legal defenses available to him." Jonathan Scofield Marshall, Comment, Lights, Camera, Allocution: Contemporary Relevance or Director's Dream?, 62 TUL. L.REV. 207, 210 (1987). Among these defenses were that certain judicial requirements had not been met, that the defendant was insane, or that the person sentenced was not the person tried. Id. In recognizing the common law right of allocution, the United States Supreme Court has observed that "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green, 365 U.S. at 304, 81 S.Ct. 653.

THE STATUTORY RIGHT OF ALLOCUTION IN WASHINGTON

¶ 6 This State has afforded defendants the right to allocute by statute since its inception. In re Pers. Restraint of Echeverria, 141 Wash.2d 323, 333-34, 6 P.3d 573 (2000). Former RCW 10.64.040 provided in part "When the defendant appears for judgment, he must be ... asked whether he h[as] any legal cause to show why judgment should not be pronounced against him." After the legislature passed the Sentencing Reform Act of 1981,² it repealed RCW 10.64.040 (Laws of 1984, ch. 76, § 33), which had already been superseded by former CrR 7.1(a)(1), 82 Wash.2d 1159-60 (1973). Echeverria, 141 Wash.2d at 334, 6 P.3d 573. Former CrR 7.1(a)(1) read in part: "Before disposition the court ... shall ask the defendant if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment." CrR 7.1 was rewritten in 1984 and recodified as CrR 7.2, 101 Wash.2d 1115-16 (1984). The allocution provision was deleted from the rules since allocution was "covered in more detail in RCW 9.94A.110." Comment to CrR 7.2, 101 Wash.2d at 1116. RCW 9.94A.110 was recodified in 1999 as RCW 9.94A.500, but the allocution provision remained unchanged.

¶ 7 RCW 9.94A.500(1) states in relevant part:

The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.

(Emphasis added.)

¶ 8 All three defendants claim that they were denied their right of allocution at their SSOSA revocation hearings because the sentencing judge failed to solicit their statements in allocution. They claim that RCW 9.94A.500, entitled "Sentencing hearing—Presentence procedures[,]" is the source of this right. The statute states in relevant part: "[t]he court shall ... allow arguments from ... the offender ... as to the sentence to be imposed." RCW 9.94A.500(1). This court has said that "trial courts should scrupulously follow [the presentence procedures] by directly addressing defendants during sentencing hearings, asking whether they wish to say anything to the court in mitigation of sentence, and allowing `arguments from . . . the offender[s] . . . as to the sentence to be imposed.'" Echeverria, 141 Wash.2d at 336-37, 6 P.3d 573 (emphasis added). Doing so "unequivocally acknowledge[s] the right of allocution as a significant aspect of the sentencing process." Id. at 337, 6 P.3d 573. Whether the revocation court must perform the same inquiry as a sentencing court is the subject of these consolidated cases.

¶ 9 Sentencing hearings and a revocation hearing serve different purposes. It is at the sentencing hearing that the judge must decide whether or not to sentence the defendant to prison and, if so, what the appropriate duration of such confinement should be. It is at the sentencing hearing that the right of the accused to make a personal statement is vital. At a revocation hearing, the inquiry is different. The court has already decided to sentence the defendant to prison and for how long. At sentencing the defendant has an absolute liberty interest at stake, but at a revocation hearing the defendant's enjoyment of this liberty interest is conditioned upon complying with terms of the suspension imposed.

¶ 10 The text of the statute is limited to sentencing hearings. Unlike at a sentencing hearing, law enforcement representatives and victims are neither present nor invited to speak at a SSOSA revocation hearing. Compare RCW 9.94A.670(4) with RCW 9.94A.670(10). Thus, the need for allocution as a means of countering and contradicting these statements is absent at the revocation hearing. Allocution may, however, still serve an important function at a revocation hearing. While the defendant may have more at stake at the initial sentencing hearing, he still has a conditional liberty interest at stake at revocation. There is no reason to deny a defendant the opportunity to allocute at revocation since allowing a defendant a few moments of the court's time is minimally invasive. United States v. Barnes, 948 F.2d 325, 331 (7th Cir.1991).

MINIMUM PROCEDURAL DUE PROCESS REQUIREMENTS

¶ 11 To find a basis for allocution at a revocation we must look beyond RCW 9.94A.500. We find federal analysis of the rights associated with parole revocation hearings persuasive. The United States Supreme Court addressed the rights to which one is entitled at a parole revocation hearing in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Court observed: "Revocation deprives an individual, not of...