State v. Herzog

• Decision Date: 27 April 1989
• Docket Number: No. 55873-6,55873-6
• Citation: 112 Wn.2d 419,771 P.2d 739
• Parties: STATE of Washington, Respondent, v. Dennis Richard HERZOG, Appellant.
• Court: Washington Supreme Court

Page 419

112 Wn.2d 419

771 P.2d 739

STATE of Washington, Respondent, v. Dennis Richard HERZOG, Appellant.

No. 55873-6.

Supreme Court of Washington,

En Banc.

April 27, 1989.

Washington Appellate Defender Association,

Dennis Benjamin, Seattle, for appellant

Norm Maleng, King County Prosecutor, Peter Goldman, Deputy, Donna L. Wise, Deputy, Seattle, for respondent.

PEARSON, Justice.

Upon sentencing the defendant for first degree rape, the trial court considered the facts underlying a previous, constitutionally invalid, foreign conviction to sentence the defendant to the maximum sentence within the standard range. This case is before this court following certification of the following issue by the Court of Appeals, Division One, pursuant to RCW 2.06.030(d):

Did the trial court err in considering facts alleged in a foreign conviction which was determined to be constitutionally invalid in setting defendant's sentence within the standard range?

We answer this question in the negative and, accordingly, we affirm the trial court.

FACTS

On December 6, 1985, the defendant, Dennis Herzog, was convicted of rape in the first degree. The only account in the record before this court of the facts underlying that conviction is contained in the prosecutor's certification for determination of probable cause. That document provides:

On or about September 1, 1985, the victim ... met the defendant Dennis Richard Herzog through a mutual On May 16, 1986, the trial judge sentenced Herzog to 71.5 months of confinement in the custody of the Department of Corrections.

                friend.   The three of them went to the apartment occupied by the defendant.   The defendant made a pass ast [sic] the victim, but [771 P.2d 740] was rebuffed.   The victim then asked to be driven home.   While driving her home the defendant stopped in a parking lot in North Seattle, King County, Washington, where he forced the victim into the back of his car at knife point.   He then engaged in sexual intercourse with the victim under threat of physical harm if she did not comply.   The defendant then allowed the victim to dress while he drove some distance.   Once dressed the defendant pushed the victim out of the car
                

In calculating Herzog's offender score for the purpose of determining the sentencing range, the State presented the following criminal history to the court: a 1978 conviction for escape, violative of Idaho Code § 18-2505; and a 1981 conviction for rape, violative of p 177/I of West Germany's criminal code. The trial court found the 1981 West Germany rape conviction did not meet the requirements of the United States Constitution since the trial was conducted before a panel of only two jurors. Accordingly, that sentence was not considered in calculating the offender score. Thus, the trial court assigned Herzog an offender score of one, counting only the 1978 Idaho conviction. The trial court further calculated the seriousness level of first degree rape as 10, resulting in a standard range of 57 to 75 months and, as stated, imposed a 71.5-month sentence.

In State v. Herzog, 48 Wash.App. 831, 740 P.2d 380 (1987), the Court of Appeals reversed the sentence and remanded to the trial court for resentencing. Affirming the trial court's refusal to consider the constitutionally invalid West Germany rape conviction, the Court of Appeals reversed, holding that pursuant to RCW 9.94A.360(2) (the "wash-out" statute), the trial court also should not have considered the defendant's 1978 Idaho conviction.

Upon remand, the trial judge recalculated the offender score as zero, determined a standard range of 51 to 68 In sentencing Herzog to the maximum sentence within the standard range, the following colloquy occurred between the court and defense counsel:

                months, and sentenced the defendant to the maximum 68 months' confinement with credit for 29 months already served.   Before the trial court, and contained in the presentence statement of the King County Prosecuting Attorney, was a detailed, 6-page translated copy of the findings and judgment entered against the defendant in the 1981 West Germany rape case.   That document graphically relates the defendant's actions in forcing the West German victim to engage in sexual intercourse
                

THE COURT: Well, Counsel, let's get something clear. I can't count that West Germany conviction so far as the point system is concerned.

MS. GARBERDING: Correct.

THE COURT: But is it your contention I cannot consider it in sentencing within the range?

MS. GARBERDING: Your Honor, I believe there is an extreme danger in considering that at all because it is so obvious that that conviction is constitutionally invalid.

THE COURT: I recognize that and I didn't use it for scoring, but isn't the Court free to use any fact insofar as sentencing within the standard range, because I will be perfectly frank with you, everything you say to me is not making a lot of sense because of that West Germany conviction. That was a rape. I don't see how an Appellate Court can say to the trial judge, "You may not exercise your discretion within the sentencing range even though you may not use that sentence for the scoring."

ANALYSIS

Upon adoption of the Sentencing Reform Act of 1981 (SRA), the Legislature provided, "[a] sentence within the standard range for the offense shall not be appealed." RCW 9.94A.210(1). At first glance, then, this provision arguably resolves the issue in the instant case. Nevertheless, the State concedes this statutory prohibition does not apply to the facts of this case. In State v. Ammons, 105 Wash.2d 175, 713 P.2d 719, 718 P.2d 796,cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986), this court considered numerous challenges to the constitutionality of the SRA. In that case, we held:

We read RCW 9.94A.210(1) as only precluding appellate review of challenges to the amount of time imposed when the time is within the standard range. The Legislature by establishing presumptive sentence ranges has structured the trial court's discretion. When the sentence given is within the presumptive sentence range then as a matter of law there can be no abuse of discretion and there is no right to appeal that aspect. An appellant, of course, is not precluded from challenging on appeal the procedure by which a sentence within the standard range was imposed.

(Italics ours.) Ammons, 105 Wash.2d at 182-83, 713 P.2d 719. In fact, were RCW 9.94A.210(1) read to prohibit any appeal, it would likely violate the guarantee of "the right to appeal in all cases" contained in article 1, section 22 of the Washington Constitution. Furthermore, one commentator has suggested that the first sentence of RCW 9.94A.210(1) was adopted by the Legislature simply as a "limitation on the newly created right of substantive review of exceptional sentences, so as to prevent that new right from extending beyond the reason for its creation." D. Boerner, Sentencing in Washington § 6.23 (1985). In any event, even were the statutory prohibition absolute, a challenge based upon constitutional grounds should defeat the statute. Regardless, the State has conceded the issue; therefore, we assume without deciding that such concession is appropriate.

The issue therefore becomes, what are the limits on a trial judge when imposing sentence within the standard range. Again, the Legislature has arguably resolved the issue. "The court may impose any sentence within the range that it deems appropriate." RCW 9.94A.370(1). There is indeed a tradition in American criminal jurisprudence, which gained force particularly in the late 19th century, that allows wide discretion to a sentencing judge [B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders.

(Footnotes omitted.) Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949). Therein the Court recognized that according wide latitude to the sentencing judge comports with the view that "the punishment should fit the offender and not merely the crime." Williams v. New York, at 247, 69 S.Ct. at 1083.

As Judge Friendly stated, a sentencing court should be almost completely unfettered in order that it may "acquire a thorough acquaintance with the character and history of the man before it." United States v. Doyle, 348 F.2d 715, 721 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965). Accordingly, a survey of numerous decisions reveals that a "sentencing judge has very broad discretion in imposing any sentence within the statutory limits, and in exercising that discretion he may and should consider matters that would not be admissible at a trial." (Italics ours.) United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir.1972) (enhancement of sentence based upon defendant's silence and failure to cooperate with government not violative of right against self-incrimination). See also Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) (enhancement of sentence based upon defendant's refusal to cooperate with the government not violative of due process); United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (enhancement of sentence due to trial judge's belief that defendant committed perjury while testifying at trial not violative of due process); Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (enhancement of sentence based upon prior conviction, for which defendant was already punished, and hearsay not violative of double jeopardy...