State v. Mendoza

• Citation: 165 Wn.2d 913,205 P.3d 113
• Decision Date: 16 April 2009
• Docket Number: No. 80477-0.,No. 80553-9.,80477-0.,80553-9.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Petitioner, v. Frank C. MENDOZA, Respondent. State of Washington, Petitioner, v. David M. Henderson, Respondent.

205 P.3d 113

165 Wn.2d 913

STATE of Washington, Petitioner, v. Frank C. MENDOZA, Respondent.

State of Washington, Petitioner, v. David M. Henderson, Respondent.

No. 80477-0.

No. 80553-9.

Supreme Court of Washington, En Banc.

Argued September 18, 2008.

Decided April 16, 2009.

Gerald R. Fuller, Grays Harbor Co. Prosecutor's Office, Montesano, WA, for Petitioner.

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Respondent.

STEPHENS, J.

¶ 1 In these consolidated cases, the State seeks review of two Court of Appeals decisions reversing the defendants' sentences and remanding for resentencing. The Court of Appeals in each case held that the sentencing court improperly relied upon the State's assertion of the defendant's criminal history where the defendant did not stipulate to the criminal history and the State did not provide any evidence to establish the prior convictions. We affirm and remand for resentencing, allowing the State an opportunity to prove the defendants' criminal histories.

FACTS AND PROCEDURAL HISTORY

State v. Mendoza

¶ 2 In April 2006, a jury convicted Frank C. Mendoza of robbery in the second degree and unlawful imprisonment. The jury found that the victim was particularly vulnerable and the defendant knew or should have known that status. Prior to sentencing, the prosecutor filed a statement of prosecuting attorney (Statement), which presented a summary of the evidence at trial, a list asserting Mendoza's criminal history, the prosecutor's calculation of Mendoza's offender score and appropriate sentencing range, and a sentencing recommendation. With respect to some of the asserted criminal history, the Statement listed the sentencing court and date of the crime. No documentation was included verifying the convictions. At sentencing, the prosecutor merely summarized Mendoza's criminal history on the record.

¶ 3 In light of the criminal history, the prosecutor alleged Mendoza's offender score was at least 9, putting the standard sentencing range at 63-84 months for the robbery charge and 51-60 months for the unlawful imprisonment charge. Mendoza did not object to the criminal history in the Statement at sentencing, nor did he affirmatively agree with the prosecutor's representations. The only reference Mendoza's attorney made on the record was the following: "I have reviewed the statement of prosecuting attorney, the terms and conditions with Mr. Mendoza. ... My recommendation to the Court would be 63 months on the robbery in the second degree and 51 months on the unlawful imprisonment to run concurrent." Report of Proceedings (RP) (Apr. 17, 2006) at 6. The trial court found Mendoza had an offender score of 9 and sentenced him to 84 months and 60 months, respectively, to be served concurrently.

¶ 4 The Court of Appeals affirmed the convictions but remanded for resentencing because Mendoza had not acknowledged the prior convictions, nor had the State provided any evidence of their existence. State v. Mendoza, 139 Wash.App. 693, 695, 162 P.3d 439 (2007). The appeals court held that the State would be allowed to present new evidence to prove Mendoza's criminal history at resentencing. Id. The State filed a petition for review, arguing that the sentencing court was allowed to rely on the information provided by the prosecutor in the absence of an objection by Mendoza. We granted review. State v. Mendoza, 163 Wash.2d 1017, 180 P.3d 1292 (2008).

State v. Henderson

¶ 5 In May 2006, a jury found David M. Henderson guilty of trafficking in stolen property in the first degree. Prior to sentencing, the prosecutor filed a Statement, which included the prosecutor's assertion of Henderson's criminal history, listing the crime and sentencing court. In it, the prosecutor recommended that the defendant be given an offender score of 2 based on his prior criminal history, resulting in a standard sentencing range of one year and one day to 14 months. The State provided no documentation establishing the prior convictions.

¶ 6 At sentencing, the prosecutor summarized the defendant's criminal history and his calculation of the standard range. Henderson did not object but also did not affirmatively acknowledge or stipulate to the Statement or to the prosecutor's representations of his criminal history. The only reference Henderson's attorney made on the record was that he recommended "the bottom [of] the standard range." RP (Aug. 7, 2006) at 86. The sentencing court assigned Henderson an offender score of 2 and sentenced him to one year and one day.

¶ 7 The Court of Appeals affirmed Henderson's conviction but remanded for resentencing because Henderson did not admit to the criminal history and the State did not prove the existence of the prior convictions through competent evidence. State v. Henderson, noted at 139 Wash.App. 1078, 2007 WL 2122422, at *3. The State petitioned for review, raising the same arguments as in the Mendoza case. Additionally, the State argued that if the case is remanded for resentencing, it should be given the opportunity to submit evidence of Henderson's criminal history. We granted review and consolidated this case with Mendoza.¹ State v. Henderson, 163 Wash.2d 1022, 185 P.3d 1194 (2008).

ANALYSIS

¶ 8 These cases involve challenges to sentences raised for the first time on appeal. Despite our general reluctance to address issues not preserved in the trial court, we allow belated challenges to criminal history relied upon by a sentencing court. State v. Ford, 137 Wash.2d 472, 477-78, 973 P.2d 452 (1999). As we explained in Ford, the purpose is to preserve the integrity of sentencing laws; allowing review "`tends to bring sentences in conformity and compliance with existing sentencing statutes and avoids permitting widely varying sentences to stand for no reason other than the failure of counsel to register a proper objection in the trial court.'" Id. at 478, 973 P.2d 452 (quoting State v. Paine, 69 Wash.App. 873, 884, 850 P.2d 1369 (1993)).

¶ 9 At sentencing, the State bears the burden to prove the existence of prior convictions by a preponderance of the evidence. In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 876, 123 P.3d 456 (2005). "`The best evidence of a prior conviction is a certified copy of the judgment.'" State v. Lopez, 147 Wash.2d 515, 519, 55 P.3d 609 (2002) (quoting Ford, 137 Wash.2d at 480, 973 P.2d 452). It is the obligation of the State, not the defendant, to assure that the record before the sentencing court supports the criminal history determination. Ford, 137 Wash.2d at 480, 973 P.2d 452. This reflects fundamental principles of due process, which require that a sentencing court base its decision on information bearing "`some minimal indicium of reliability beyond mere allegation.'" Id. at 481, 973 P.2d 452 (internal quotation marks omitted) (quoting United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984)).

¶ 10 This is not to say that a defendant cannot affirmatively acknowledge his criminal history and thereby obviate the need for the State to produce evidence. The issue in these cases centers on what is required for an acknowledgment to occur.

¶ 11 The State makes two arguments. First, it contends that the Statement of the prosecuting attorney comes within the definition of a presentence report under former RCW 9.94A.500(1) (2006) and a defendant's failure to object to the criminal history contained in it serves as an acknowledgment of that history pursuant to former RCW 9.94A.530(2) (2005). Second, the State asserts that Mendoza and Henderson otherwise acknowledged the criminal histories presented by the State by making sentencing recommendations consistent with the sentencing range provided by the prosecutor, which presupposed the asserted criminal history.

¶ 12 Addressing the State's first argument requires us to interpret what the legislature intended as a "presentence report." There is no definition provided in the statutes. To resolve this issue, we look to settled rules of statutory construction. Our goal is to determine the legislature's intent. Burns v. City of Seattle, 161 Wash.2d 129, 140, 164 P.3d 475 (2007). If the meaning of the statute is plain, then that meaning is given effect. Id. "Plain meaning is discerned from viewing the words of a particular provision in the context of the statute in which they are found, together with related statutory provisions, and the statutory scheme as a whole." Id. Where different terms are used in the same statute, the presumption is that the legislature intended they have separate meanings. Densley v. Dep't of Ret. Sys., 162 Wash.2d 210, 219, 173 P.3d 885 (2007). Furthermore, court rules are interpreted as though they were drafted by the legislature. State v. George, 160 Wash.2d 727, 735, 158 P.3d 1169 (2007).

¶ 13 Where a statute is amenable to more than one reasonable interpretation, it is ambiguous and we may look to legislative history. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 12, 43 P.3d 4 (2002). Subsequent legislative changes can be considered when trying to determine legislative intent. Rozner v. City of Bellevue, 116 Wash.2d 342, 347-48, 804 P.2d 24 (1991) (citing Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 813, 63 L.Ed.2d 36 (1980)).

¶ 14 Turning to the statutes at issue, the legislature has mandated that sentencing courts consider:

the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history....

If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record.

Former RCW 9.94A.500(1). In imposing a sentence within the standard range, a court "may rely on no more information than is admitted by the plea agreement, or admitted,...