State v. Morreira

• Decision Date: 26 July 2001
• Docket Number: No. 18874-4-III.,18874-4-III.
• Parties: STATE of Washington, Respondent, v. Robert Alan MORREIRA, Appellant.
• Court: Washington Court of Appeals

27 P.3d 639

107 Wash.App. 450

STATE of Washington, Respondent, v. Robert Alan MORREIRA, Appellant.

No. 18874-4-III.

Court of Appeals of Washington, Division 3, Panel Five.

July 26, 2001.

Gail Siemers, Walla Walla, for Appellant.

Gabriel E. Acosta, Deputy Prosecuting Attorney, Walla Walla, for Respondent.

KURTZ, C.J.

Robert A. Morreira entered an Alford¹ plea of guilty to assault in the second degree. This court vacated Mr. Morreira's exceptional sentence of 100 months. On remand, the sentencing court held a real facts evidentiary hearing and subsequently imposed a 100 month sentence. Mr. Morreira appeals again, alleging, among other things, that the sentencing court violated the real facts doctrine by relying on facts probative of first degree assault. We conclude that the trial court violated the real facts doctrine because the court relied on facts establishing the intent element of a more serious crime.

FACTS

In 1998, the State charged Robert Morreira with one count of first degree assault, alleging Mr. Morreira used his car to run over Carl Goenen. Mr. Morreira eventually entered an Alford plea of guilty to one count second degree assault with a deadly weapon enhancement.

The Presentence Investigation Report (PSI) calculated the standard range as 15 to 21 months (including a weapon enhancement for the car) but recommended an exceptional sentence of 36 months. The sentencing court entered an exceptional sentence of 100 months based on deliberate cruelty. The court further supported the exceptional sentence with written findings of fact and conclusions of law.

In an unpublished opinion, this court vacated the sentence and remanded for resentencing. State v. Morreira, 97 Wash.App. 1028, 1999 WL 699882, No. 17701-7-III (filed 9/09/99). Specifically, this court held that the sentencing court erred in not holding an evidentiary hearing on disputed facts. Clerk's Papers (CP) at 57. This court further held the trial court erred in considering misdemeanor charges subsequently dismissed by the State. CP at 58.

On remand, the trial court held an evidentiary hearing. At the start of the hearing, Mr. Morreira raised a general objection to "any additional information" provided to the sentencing court. Report of Proceedings (RP) at 2. Later, without any further objection from Mr. Morreira, the court admitted Exhibit 1, the Washington State Patrol investigative report of the incident. Detective M.A. Gradwohl testified that he had prepared the report and that any testimony he would give in the hearing would merely echo the report.

Alice Rogers, a Community Corrections Officer, testified that she relied on Exhibit 1 to prepare her PSI. Without objection, the sentencing court then admitted the PSI as Exhibit 2.

Tammy Slayton testified that her testimony at the hearing would match her written statement to the investigating officer. In that statement, Ms. Slayton wrote that Mr. Morreira had threatened to kill the victim approximately two weeks prior to the assault.

Mr. Morreira declined to call any witnesses at the hearing.

Again, the sentencing court imposed an exceptional sentence of 100 months and entered findings of fact and conclusions of law in support of the sentence. Specifically, the court noted Mr. Morreira's "premeditated and deliberate attempt to run over and kill the victim," and concluded that the assault was "more egregious than that typically seen in an assault with a deadly weapon case." CP at 41.

Mr. Morreira appeals.

ANALYSIS

Real Facts Hearing. Mr. Morreira asserts that the sentencing court did not hold a proper real facts hearing and relied instead on the PSI and police reports.

To impose an exceptional sentence, the sentencing court must set forth in written findings and conclusions substantial and compelling reasons justifying imposition of such a sentence. RCW 9.94A.120(2); State v. Halgren, 137 Wash.2d 340, 345, 971 P.2d 512 (1999). "Upon review, an appellate court may be asked to decide (1) whether there is sufficient evidence in the record to support the reasons for imposing an exceptional sentence under a clearly erroneous standard, (2) whether as a matter of law the reasons justify an exceptional sentence, and (3) whether an exceptional sentence is clearly excessive under an abuse of discretion standard." Halgren, 137 Wash.2d at 345-46,971 P.2d 512 (citing RCW 9.94A.210(4); State v. Nordby, 106 Wash.2d 514, 723 P.2d 1117 (1986)).

With regard to the first inquiry, this court applies the clearly erroneous standard when reviewing the trial court's findings of fact. State v. Morris, 87 Wash.App. 654, 659, 943 P.2d 329 (1997). The second inquiry, whether the findings justify an exceptional sentence, is a legal issue subject to de novo review. Id.

Here, the trial court entered 20 findings of fact. Mr. Morreira has not assigned error to those findings, which renders them verities on appeal. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994).

In any event, Mr. Morreira complains that rather than holding a proper hearing on remand, the sentencing court merely authenticated and admitted the PSI and WSP investigative reports over his objection. With regard to the objection, the State is correct that Mr. Morreira's blanket objection to "any additional information" was nebulous and did not identify with any specificity the facts he sought to exclude from the court's consideration. RP at 2. See State v. Garza, 123 Wash.2d 885, 890, 872 P.2d 1087 (1994)

(noting that defendant must make timely and specific challenge to information presented for sentencing court's consideration). Moreover, Mr. Morreira did not object specifically to admission of the WSP report and the PSI. See State v. Wakefield, 130 Wash.2d 464, 476, 925 P.2d 183 (1996) ("In determining the appropriate sentence, the trial court can consider the presentencing reports unless the defendant objects").

Mr. Morreira further contends it was improper to consider the PSI and WSP reports because he had entered an Alford plea. In this connection, Mr. Morreira is correct that an Alford plea is not an admission of guilt. See State v. Talley, 134 Wash.2d 176, 182-83, 949 P.2d 358 (1998)

. But the existence of an Alford plea does not necessarily deprive the sentencing court of all information relating to the circumstances of the crime; the court may consider the PSI and other relevant information. See State v. Handley, 115 Wash.2d 275, 282-83, 796 P.2d 1266 (1990) (holding RCW 9.94A.370(2) does not limit sources of information for sentencing considerations). From a policy standpoint, a blanket rule forbidding the trial court's access to information relevant to the charged crime in the Alford plea setting would unreasonably restrict the trial court's discretion to impose an exceptional sentence where the permissible facts warrant it. See State v. Perez, 69 Wash.App. 133, 137, 847 P.2d 532 (1993) ("The sentencing reform act did not eliminate judicial discretion to fashion individualized sentences when the facts of a particular case demand it").

The purpose of the real facts hearing is to protect the defendant "from consideration of unreliable or inaccurate information[.]" Handley, 115 Wash.2d at 282, 796 P.2d 1266 (citing RCW 9.94A.370(2)). "This procedure safeguards the defendant's right to know and object to adverse facts." Handley, 115 Wash.2d at 282, 796 P.2d 1266 (citing State v. Ammons, 105 Wash.2d 175, 185, 713 P.2d 719, 718 P.2d 796 (1986)).

On remand, the sentencing court held a real facts hearing so Mr. Morreira could refute the State's allegation. See Garza, 123 Wash.2d at 890,

872 P.2d 1087 (noting that defendant could have requested evidentiary hearing "at which he could controvert information contained in the [presentencing] report"). Yet, Mr. Morreira rejected that opportunity. Accordingly, the evidence presented by the State in the form of the WSP investigate report went unchallenged. Inasmuch as the real facts hearing was a rather truncated proceeding; it was due in large part to Mr. Morreira's unwillingness to controvert the State's evidence.

In this connection, Mr. Morreira argues he dare not testify at the real facts hearing because such testimony would violate his constitutional right against self-incrimination. Absent citation to relevant authority and a reasoned argument, this fleeting reference to a complex constitutional issue merits no consideration on appeal. State v. Johnson, 119 Wash.2d 167, 171, 829 P.2d 1082 (1992).

We conclude that the trial court did not err in admitting the PSI and WSP reports into the record.

Real Facts Doctrine.

In his pro se brief, Mr. Morreira argues the trial court violated the real facts doctrine by citing facts supporting the more serious crime of first degree assault. The State does not respond to his argument.

As noted earlier, Mr. Morreira did not object to admission of the PSI and WSP reports. But his defense counsel raised a general objection to the trial court considering "additional information." RP at 2. We conclude counsel's objection could be fairly interpreted as a challenge to the scope of information the trial court relied upon. A later colloquy between counsel and the sentencing court reinforces this interpretation; counsel expressed concern that the trial court was engaging in a wide ranging factual inquiry notwithstanding the Alford plea. In other words, counsel raised an objection directed generally at the real facts doctrine.

We also reject Mr. Morreira's contention that his plea agreement was invalid because a car is not a deadly weapon for purposes of the deadly weapon enhancement statute, RCW 9.94A.310(4). State v. Shepherd, 95 Wash.App. 787, 793, 977 P.2d 635 (1999); State v. Ross, 20 Wash.App. 448, 453, 580 P.2d 1110 (1978). But Mr. Morreira stipulated that the car was a deadly weapon for purposes of his plea agreement. And he has not shown that the plea agreement was involuntary. Thus, Mr. Morreira is bound by his bargain with the State. See...