State v. Hixson
| Citation | 94 Wn.App. 862,973 P.2d 496 |
| Decision Date | 23 March 1999 |
| Docket Number | No. 16423-3-III,16423-3-III |
| Parties | STATE of Washington, Respondent, v. Kenneth Leroy HIXSON, Appellant. |
| Court | Court of Appeals of Washington |
James E. Egan, Kennewick, WA, for Appellant.
Andrew K. Miller, Benton County Prosecutor, Kennewick, WA, for Respondent.
Patricia Adams, Lisa Lang, Rene Munoz, Tri-Cities, WA, Pro Se.
Kenneth L. Hixson entered a guilty plea to second degree manslaughter for the shooting death of 14-year-old Wesley D. Highly. The primary issue is whether the State undercut the plea agreement. We decide it is not undercutting for the State to correct a fact in good faith perceived misrepresented by a defendant. A victim's prior bad acts and character are irrelevant to sentencing when they are unknown to a perpetrator when the offense is committed. It follows that a prosecutor does not undercut by failing to enthusiastically argue them to the sentencing court. Finally, permitting witnesses beyond those listed in RCW9.94A.110 to speak at sentencing is not error. Accordingly, we affirm.
Wesley Highly was, without permission, found in Mr. Hixson's motor home on Christmas morning 1995. When confronted by Mr. Hixson, Mr. Highly turned and ran away, however, Mr. Hixson shot him in the back. Mr. Highly was 40 or 45 feet away from Mr. Hixson and unarmed when shot. It is disputed whether at any earlier point Mr. Highly was armed. Mr. Hixson agreed to enter a plea to second degree manslaughter under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) in exchange for a recommendation by the State for a mitigated exceptional sentence. The sentencing court rejected the State's recommendation and sentenced Mr. Hixson to 12 months and one day, the low end of a standard-range sentence.
Three matters are significant to Mr. Hixson's appeal. First, the trial court allowed both the victim's mother and her attorney to address the court during the sentencing hearing. Second, the court was apparently not persuaded to grant a mitigated sentence by Mr. Hixson's evidence relating to the victim's past criminal conduct and bad acts. The evidence was offered to show the victim was an initiator, aggressor or provoker of the incident, and that Mr. Hixson acted under duress, coercion, or threat. Third, during the sentencing the prosecutor remarked in response to Mr. Hixson's sentencing memorandum and in anticipation of a plea for an even lower mitigated sentence that Mr. Hixson was "not in any danger at the time of the shooting." Mr. Hixson's appeal centers on whether the State undercut the plea bargain.
Mr. Hixson contends the trial court erred when it allowed both the victim's mother and her attorney to speak. Preliminarily, the State argues the general rule that a standard-range sentence cannot be appealed. RCW9.94A.210(1). However, Mr. Hixson assigns error to the sentencing procedures. Thus, the assigned error arguably falls within the "procedural" exception of RCW 9.94A.210(1). See State v. Mail, 121 Wash.2d 707, 712, 854 P.2d 1042 (1993).
RCW 9.94A.110 provides in part: "The court shall ... 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." Without citation Even though the plain language may be understood to limit those who may speak at a sentencing hearing, we conclude the list is inclusive rather than exclusive. RCW 9.94A.110 mandates that the persons listed must be permitted to speak but does not limit the court's discretion in hearing from others. Mail, 121 Wash.2d at 711, 854 P.2d 1042.
to other authority, Mr. Hixson claims either a survivor or a representative can speak, but not both.
Even if the court erred in allowing testimony from both Mr. Highly's mother and her attorney, the court's error must be prejudicial. State v. Gonzales, 90 Wash.App. 852, 954 P.2d 360, 362, review denied, 136 Wash.2d 1024, 969 P.2d 1065 (1998). Mr. Hixson does not establish prejudice. Mr. Highly's mother and her attorney both argued for an exceptional sentence above the standard range. The court did not follow either recommendation. Instead, Mr. Hixson was sentenced to the low end of the standard range.
Additionally, a prosecutor does not breach a plea agreement merely y advising the court of witnesses who wish to testify at a sentencing hearing. State v. Davis, 43 Wash.App. 832, 837, 720 P.2d 454, review denied, 106 Wash.2d 1017 (1986). Consequently, he cannot show a due process violation. While constitutional guarantees must be observed at sentencing just like during the investigative and trial phases of a criminal proceeding, merely considering the witnesses testimony is not evidence that procedural guarantees were not observed here. State v. Post, 118 Wash.2d 596, 605, 826 P.2d 172 (1992).
Mr. Hixson contends the sentencing court erred in excluding the evidence of Mr. Highly's prior criminal history and bad acts. He alleges this evidence is relevant to establish two of the mitigating factors in RCW 9.94A.390. Specifically, Mr. Highly's prior behavior establishes he was "an initiator, willing participant, aggressor, or provoker of the incident" and Mr. Hixson acted "under duress, coercion, threat, or compulsion." RCW 9.94A.390(1)(a) and (c). Mr. Hixson further argues Mr. Highly's history is relevant to rebut evidence of his good character, presented by witnesses at the sentencing hearing.
Contrary to Mr. Hixson's assertions, the court did read and consider his sentencing memorandum and argument before sentencing. However, the trial court was not, in its discretion, persuaded to grant a mitigated sentence. The rules of evidence do not apply at sentencing. ER 1101(c)(3). No "ruling" was made on this matter. Instead the court reasoned: "[T]o a degree (the victim) was an initiator and a provoker of this incident (by burglarizing and fleeing), I do not find that his conduct sufficiently initiated or provoked the defendant's criminal negligence in firing at or toward him as he fled to constitute a mitigating factor that would justify this court's departure from the standard range of sentence."
Additionally, relevant evidence is any evidence that makes the existence of a fact of consequence more or less probable. ER 401. Mr. Highly's prior criminal conduct and bad acts do not make it any more probable that on the day of the shooting he was the initiator, aggressor or provoker of his own death. Nor is the character of a victim relevant to sentencing under these circumstances. The record indicates Mr. Hixson was not aware of Mr. Highly's history at the time of the shooting. In State v. Bell, 60 Wash.App. 561, 564 n. 1, 805 P.2d 815, review denied, 116 Wash.2d 1030, 813 P.2d 582 (1991), the court held "[E]vidence of acts such as fights, quarrels, and insulting words ... is admissible on the issue of reasonable apprehension of danger on the part of the defendant, provided the defendant knew of the acts." (Emphasis added). Without knowledge of Mr. Highly's history, Mr. Hixson cannot establish Mr. Highly's prior acts caused him to act under duress, coercion, threat or compulsion. Therefore, they are irrelevant.
Furthermore, the individuals who spoke at the sentencing hearing did not offer specific testimony relating to Mr. Highly's good character.
Rather, they discussed the impact of his death. Mr. Hixson provides no legal authority supporting his argument that bad character evidence is relevant at a sentencing hearing under these circumstances. The trial court did not err.
Mr. Hixson contends the State breached its plea agreement by its comment asserting that Mr. Hixson was in no danger when he shot at Mr. Highly. Mr. Hixson contends this contradicts RCW 9.94A.390(1)(a) and (c), the mitigating factors the State was...
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