State v. Hunley

• Decision Date: 01 November 2012
• Docket Number: No. 86135–8.,86135–8.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Monte W. HUNLEY, Respondent.

175 Wash.2d 901

287 P.3d 584

STATE of Washington, Petitioner,

v.Monte W. HUNLEY, Respondent.

No. 86135–8.

Supreme Court of Washington,

En Banc.

Argued March 13, 2012.

Decided Nov. 1, 2012.

Held Unconstitutional

West's RCWA 9.94A.530(2)

Unconstitutional as Applied

West's RCWA 9.94A.500(1)Pamela Beth Loginsky, Washington Association of Prosecuting Attorneys, Olympia, WA, Gerald R. Fuller, James Garnet Baker, Grays Harbor County Prosecuting Office, Montesano, WA, for Petitioner.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Respondent.

FAIRHURST, J.

[175 Wash.2d 905]¶ 1 This case requires us to decide whether a sentencing court violated a defendant's right to due process by basing the imposed sentence on prior convictions demonstrated only by the prosecutor's written summary and the defendant's failure to object. The Court of Appeals held this violated the defendant's right to due process, and we now affirm.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 Monte W. Hunley was convicted by a jury on July 13, 2009 of attempting to elude a pursuing police vehicle. At sentencing, the State presented a written statement of prosecuting attorney (prosecutor summary), summarizing its understanding of Hunley's criminal history. The prosecutor summary was an unsworn document listing six of Hunley's alleged prior convictions, their cause numbers, and the sentencing court. Only one of the six offenses was identified by date. The prosecutor summary was not accompanied with any documentation of the alleged offenses. The defense also filed a defense statement on sentencing (defense statement), but Hunley neither disputed nor affirmatively agreed with the prosecutor summary. The defense statement merely requested a finding of mitigating factors to allow for an exceptional sentence downward.

¶ 3 Based on the prosecutor summary, the trial court calculated Hunley's offender score as five and sentenced him to 24 months in prison, the top of the standard range. Hunley did not challenge his offender score or sentence at the trial court.

[175 Wash.2d 906]¶ 4 On appeal, Hunley challenged the sufficiency of the prosecutor summary. ¹ He claimed certain provisions of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, that allow a sentencing court to rely on an unchallenged prosecutor summary of a defendant's criminal history in imposing a sentence, violated his constitutional privilege against self-incrimination and unconstitutionally shifted the burden of proof from the State to the defendant.

¶ 5 The Court of Appeals did not reach Hunley's self-incrimination argument but held that the challenged SRA provisions, RCW 9.94A.500(1) and RCW 9.94A.530(2), were unconstitutional insofar as they permitted a sentencing court to make a finding of criminal history based solely on a prosecutor summary and the defendant's failure to object. State v. Hunley, 161 Wash.App. 919, 929, 253 P.3d 448 (2011). The Court of Appeals deemed RCW 9.94A.500(1) unconstitutional as applied and RCW 9.94A.530(2) unconstitutional on its face. Hunley, 161 Wash.App. at 929, 253 P.3d 448. Hunley's conviction was affirmed but the case was remanded for resentencing, allowing the State an opportunity to prove the defendant's criminal history. ²

¶ 6 We granted the State's petition for review. State v. Hunley, 172 Wash.2d 1014, 262 P.3d 63 (2011). In the interim, Hunley served his time of confinement and was released.

II. ISSUES

A. Even if we cannot provide effective relief to Hunley, should we review the issues in this case because they are of continuing and substantial public interest?

B. Did the 2008 SRA amendments violate Hunley's right to due process by shifting the burden of proof at sentencing?

III. ANALYSIS

¶ 7 Although the inability to provide effective relief to Hunley renders this case technically moot, we choose to address the issue presented because it is of continuing and substantial public interest. Substantively, we affirm the Court of Appeals and hold the 2008 amendments to RCW 9.94A.500(1) and .530(2) violated Hunley's due process rights by shifting the State's burden to prove a defendant's prior convictions at sentencing.

A. We Review the Issue in this Case Because It Is of Continuing and Substantial Public Interest

¶ 8 As a general rule, we do not consider questions that are moot. State v. Gentry, 125 Wash.2d 570, 616, 888 P.2d 1105 (1995). A case is technically moot if the court can no longer provide effective relief. Id. The expiration of Hunley's sentencing term technically renders this case moot. See In re Pers. Restraint of Mattson, 166 Wash.2d 730, 736, 214 P.3d 141 (2009). However, we may retain and decide an appeal if it involves matters of continuing and substantial public interest. Id. In determining whether a case presents issues of continuing and substantial public interest, we consider three factors: “ ‘[ (1) ] the public or private nature of the question presented, [ (2) ] the desirability of an authoritative determination for the future guidance of public officers, and [ (3) ] the likelihood of future recurrence of the question.’ ” Id. (internal quotation marks omitted) (quoting Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972)). Based on these considerations, we issued an opinion in Mattson despite the fact that the defendant's maximum term had expired and effective relief was no longer possible. Id. at 736–37, 214 P.3d 141.Mattson also involved the interpretation of an SRA provision and its constitutional implications. Id. at 736, 214 P.3d 141.

¶ 9 As in Mattson, all three considerations weigh in favor of review here. The constitutionality of these statutes related to criminal sentencing presents an issue of public interest. Further, how to sufficiently prove the existence of prior convictions at a sentencing hearing is an issue of statewide importance. While we can no longer provide effective relief to Hunley, his factual and legal scenario is undoubtedly likely to recur. An authoritative determination for the future guidance of prosecutors, defense attorneys, and trial court judges is therefore beneficial. Accordingly, despite our inability to provide effective relief to Hunley, we will address the issue presented in this case.

B. The 2008 SRA Amendments Unconstitutionally Shift the Burden of Proof at Sentencing

¶ 10 Hunley argues that RCW 9.94A.500(1) and .530(2) violated his due process rights by relieving the State of its burden to prove prior convictions. The Court of Appeals agreed, and we now affirm.

1. Standard of review

¶ 11 A challenge to the constitutionality of a statute is reviewed de novo. City of Bothell v. Barnhart, 172 Wash.2d 223, 229, 257 P.3d 648 (2011). The statute is presumed to be constitutional and the challenger must show the statute is unconstitutional beyond a reasonable doubt. Id.

2. Hunley's sentencing was unconstitutional because the State failed to prove prior convictions by a preponderance of the evidence

¶ 12 The trial court must conduct a sentencing hearing before imposing a sentenceon a convicted defendant. RCW 9.94A.500(1). A defendant's offender score affects the sentencing range and is generally calculated by adding together the defendant's current offenses and the prior convictions. RCW 9.94A.589(1)(a). In determining the proper offender score, the court “may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.” RCW 9.94A.530(2). The purpose of this limitation is “to protect against the possibility that a defendant's due process rights will be infringed upon by the sentencing judge's reliance on false information.” State v. Herzog, 112 Wash.2d 419, 431–32, 771 P.2d 739 (1989); Wash. Const. art. I, § 3 (“No person shall be deprived of life, liberty, or property, without due process of law.”).

¶ 13 The legislature amended RCW 9.94A.500(1) in 2008 to provide that “[a] criminal history summary relating to the defendant from the prosecuting authority or from a state, federal, or foreign governmental agency shall be prima facie evidence of the existence and validity of the convictions listed therein.” Laws of 2008, ch. 231, § 2. At the same time, RCW 9.94A.530(2) was also amended to add, “Acknowledgment includes ... not objecting to criminal history presented at the time of sentencing.” Laws of 2008, ch. 231, § 4. Prior to the 2008 amendments, RCW 9.94A.500(1) and .530(2) allowed a sentence to be based upon unchallenged information contained within a “presentence report.” ³See former RCW 9.94A.500(1) (2006); former RCW 9.94A.530(2) (2005). The primary issue in this case is whether these amendments violate due process.

¶ 14 It is well established that the State has the burden to prove prior convictions at sentencing by a preponderanceof the evidence. State v. Ford, 137 Wash.2d 472, 479–80, 973 P.2d 452 (1999). Bare assertions, unsupported by evidence do not satisfy the State's burden to prove the existence of a prior conviction. Id. at 482, 973 P.2d 452;State v. Lopez, 147 Wash.2d 515, 523, 55 P.3d 609 (2002). While the preponderance of the evidence standard is “not overly difficult to meet,” the State must at least introduce “evidence of some kind to support the alleged criminal history.” Ford, 137 Wash.2d at 480, 973 P.2d 452. Further, unless convicted pursuant to a plea agreement, the defendant has “ no obligation to present the court with evidence of his criminal history.” Lopez, 147 Wash.2d at 521, 55 P.3d 609.

¶ 15 The burden lies with the State because it is “inconsistent with the principles underlying our system of justice to sentence a person on the basis of crimes that the State either could not or chose not to prove.” In re Pers. Restraint of Williams, 111 Wash.2d 353, 357, 759 P.2d 436 (1988). We have also emphasized that

[s]entencing is a critical step in our criminal justice system. The fact that guilt has already been established should not result in...