State v. Inocencio
| Decision Date | 21 May 2015 |
| Docket Number | No. 31485–5–III.,31485–5–III. |
| Citation | 187 Wash.App. 765,351 P.3d 183 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Alfredo Brice INOCENCIO, Appellant. |
Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Appellant.
David Brian Trefry, Joseph Anthony Brusic, Yakima County Prosecutors Office, Spokane, WA, for Respondent.
¶ 1 Alfredo Inocencio appeals the results of a resentencing, arguing that the trial court erroneously included points in his offender score for two convictions as a juvenile in adult court that he claims are invalid. Citing State v. Saenz, 175 Wash.2d 167, 283 P.3d 1094 (2012), he argues that the State cannot demonstrate that his waiver of a decline hearing resulting in those convictions as an adult was knowing and voluntary. He also relies on Saenz to argue that the court's order transferring jurisdiction of those charges to adult court contained inadequate findings.
¶ 2 Saenz involved the distinguishable context of a court imposing a sentence on a persistent offender of total confinement for life without the possibility of release. When requesting such a sentence, the State must prove a defendant's prior status as an “offender,” a statutorily defined term that implicates proof of the prior sentencing court's jurisdiction over a juvenile. Where only an offender score is at issue, as in this case, the State has the different burden of proving the defendant's criminal history by a preponderance of the evidence—a burden that can be met without proving a prior sentencing court's jurisdiction.
¶ 3 Saenz does not apply. Because the allegedly invalid convictions have not previously been determined to have been unconstitutionally obtained and are not constitutionally invalid on their face, we affirm.
¶ 4 Alfredo Inocencio was convicted in 2009 of two counts of first degree assault. This court affirmed his judgment and sentence on appeal. See State v. Inocencio, Commissioner's Ruling, No. 28691–6–III (Wash.Ct.App., May 25, 2011). In response to a timely petition for review, however, we remanded the matter to the superior court for resentencing after the State agreed that errors had been made in calculating the offender scores for the two convictions. See In re: Alfredo Jose Inocencio, Agreed Order Transferring Personal Restraint Petition to Superior Court for Resentencing and Dismissing Petition, No. 30908–8–III (Wash.Ct.App., December 4, 2012).
¶ 5 Before the resentencing hearing, Mr. Inocencio filed a motion to strike two prior convictions from his offender score for the reason that “the defendant was 16 years of age at the time of the convictions and had not been properly declined by the Juvenile Court prior to the entry of the conviction in Adult Court.” Clerk's Papers (CP) at 33. This requested adjustment to his offender score was distinct from, and in addition to, the error that resulted in the order requiring resentencing. According to Mr. Inocencio, striking of two convictions entered in 2005, when he was a juvenile, was required by the Washington Supreme Court's decision in Saenz.
¶ 6 Mr. Inocencio's two convictions at issue were the result of a 2005 plea agreement. He had initially been charged with first degree robbery, unlawful possession of a firearm, and possession of a stolen firearm; the first degree robbery charge resulted in automatic declination from the juvenile division to adult criminal court. RCW 13.04.030(1)(e)(v). The State and Mr. Inocencio reached an agreement under which the State would file an amended information in adult court reducing the first two charges to first and second degree theft and dropping the third charge. In exchange, Mr. Inocencio agreed to enter a plea of guilty to the two theft charges. It was a condition of the State's agreement that the convictions be entered in adult criminal court. Since the reduced charges fell within the jurisdiction of the juvenile court, Mr. Inocencio agreed to waive a decline hearing and submit to the jurisdiction of the adult court.
¶ 7 At the hearing on Mr. Inocencio's guilty plea, the lawyers explained their agreement and the sentencing judge engaged in some discussion with Mr. Inocencio about the fact that by submitting to the jurisdiction of the adult court, any further crimes he committed as a juvenile would automatically fall within the jurisdiction of the adult court. Mr. Inocencio indicated that he understood.
¶ 8 The trial court that accepted the plea and waiver of a decline hearing entered findings of fact and conclusions of law that stated, in relevant part:
III.
Inocencio knowingly, intelligently and voluntarily waives his right to a declination hearing in the Juvenile Division under RCW 13.40.110(1). Inocencio understands that entry of this order will subject him to Adult Division jurisdiction for any and all subsequent criminal offenses, because he will no longer meet the definition of “juvenile” under RCW Title 13 as interpreted by State v. Oreiro, 73 Wash.App. 868 (1994).
IV.
The State and Inocencio request the Juvenile Division to decline jurisdiction and the Adult Division to retain jurisdiction. This agreed jurisdictional status is a material component of the plea agreement into which Inocencio has entered with the State.
V.
In light of the facts, reports and opinions submitted, the best interests of Inocencio and the community would be served by declination of Juvenile Division jurisdiction over the amended charges of First Degree Theft and Second Degree Theft (and any and all subsequent charges) pursuant to RCW 13.40.110(2) and the criteria set forth in Kent v. United States. 383 U.S. 541 [86 S.Ct. 1045, 16 L.Ed.2d 84] (1966) and State v. Holland, 98 Wash.2d 507 (1983).
CP at 42–43. On the basis of the findings, the court ordered that the juvenile division of the superior court declined jurisdiction over Mr. Inocencio and that the adult division of the court retained jurisdiction.
¶ 9 At the 2013 resentencing hearing, a new sentencing judge heard argument of Mr. Inocencio's motion to strike the two 2005 theft convictions from his offender score. Mr. Inocencio argued that in order for a conviction entered when he was less than 18 years old to count toward his offender score, Saenz required the State to demonstrate that the case had properly been under adult criminal court jurisdiction. Because he had waived juvenile court jurisdiction, he argued that Saenz required the State to demonstrate an express waiver, intelligently made, after having been fully informed of the rights being waived. See Saenz, 175 Wash.2d at 176, 283 P.3d 1094. He also argued that before transferring the case to adult court, the juvenile court must have entered a finding that transfer to adult court was in the best interest of Mr. Inocencio or the public. See id. at 180, 283 P.3d 1094. He argued that in the case of his 2005 theft convictions, there was no showing of an informed intelligent waiver and that the court's “best interest” finding was conclusory.
¶ 10 The sentencing court refused to strike the 2005 theft convictions and included them in arriving at a corrected offender score. In announcing its sentencing decision, the court observed that in the case of Mr. Inocencio's 2005 sentencing (unlike in Saenz ) the court had entered a written finding that the best interest of Mr. Inocencio and the community would be served by declination of juvenile court jurisdiction.
¶ 11 Mr. Inocencio appeals the court's refusal to strike the 2005 convictions in calculating his offender score.
¶ 12 RCW 9.94A.525 provides that a defendant's offender score “is the sum of points accrued under this section rounded down to the nearest whole number.” First and second degree theft are class B and C felonies, respectively.
RCW 9A.56.030(2) ; RCW 9A.56.040(2). Unless they have washed out, class B and C felonies count toward the offender score under RCW 9.94A.525(2)(g), which “applies to both adult and juvenile prior convictions.”
¶ 13 Nonetheless, in Saenz and in State v. Knippling, 166 Wash.2d 93, 206 P.3d 332 (2009) —both involving sentences imposed under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, also known as the “three strikes law”—our Supreme Court held that the State fails to meet its burden of proving that a defendant “has ... been convicted as an offender” of a “strike” as required by RCW 9.94A.030(37) when it offers evidence of a conviction at a time when the defendant was less than 18 years old without demonstrating that he or she was properly before the adult criminal court. At issue is whether the reasoning of the two decisions extends to the facts of this case.
¶ 14 In Knippling, the State asked in 2005 that Tucero Knippling be sentenced to life imprisonment without parole as a persistent offender, relying in part on his conviction of a most serious offense in 1999. The 1999 judgment and sentence indicated on its face that Mr. Knippling had been 16 years of age at the time of the conviction. As in Mr. Inocencio's case, the record indicated that Mr. Knippling had originally been charged in 1999 with first degree robbery over which the adult criminal court had automatic jurisdiction, but that the parties had reached a plea agreement under which the charge was reduced to second degree robbery, a crime within the exclusive jurisdiction of the juvenile court. Once the information was amended, “the superior court no longer had jurisdiction because of Knippling's status as a juvenile,” and “a declination hearing was required in order to transfer the case back to superior court.” Id. at 101, 206 P.3d 332.
¶ 15 Nothing in the record before the court asked to sentence Mr. Knippling as a persistent offender in 2005 indicated that the juvenile court declined jurisdiction in 1999. The supreme court granted review on the issue of...
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