State v. Ramos

• Decision Date: 10 February 2011
• Docket Number: No. 84891–2.,84891–2.
• Citation: 246 P.3d 811,171 Wash. 2d 46
• Parties: STATE of Washington, Respondent,v.Joel Rodriguez RAMOS, Petitioner.
• Court: Washington Supreme Court

171 Wash.2d 46

246 P.3d 811

STATE of Washington, Respondent,

v.Joel Rodriguez RAMOS, Petitioner.

No. 84891–2.

Supreme Court of Washington, En Banc.

Considered Feb. 3, 2011.Decided Feb. 10, 2011.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Petitioner.Kenneth L. Ramm, Jr., Yakima County Courthouse, Yakima, WA, for Respondent.PER CURIAM.

[171 Wash.2d 47]¶ 1We consider whether the Court of Appeals' remand to the trial court to clarify the terms of community placement in this criminal case vested the trial court with discretion, triggering defendantJoel Ramos's constitutional right to be present at sentencing.We grant Ramos's petition for review and hold that the remand order calls for the trial court to exercise discretion.Therefore, a sentencing hearing should be scheduled at which Ramos must be present.

¶ 2 In 1993, Ramos and Miguel Gaitan, both 14 years old, murdered a family of four in the family's home during a robbery.Gaitan killed a couple and their 12–year–old son, while Ramos killed the couple's 6–year–old son.Ramos, through counsel, waived a declination hearing and pleaded guilty in adult court to three counts of first degree felony murder and one count of first degree murder.

¶ 3 In 2006, Ramos filed a notice of appeal challenging the juvenile court's declination order.The Court of Appeals dismissed the appeal as untimely, but this court granted discretionary review and directed the Court of Appeals to reinstate Ramos's appeal.State v. Ramos,No. 80365–0(Wash.Mar. 7, 2008).Through counsel, Ramos argued on appeal that the unit of prosecution for felony murder was each underlying felony rather than the number of persons killed.He also urged that the relevant declination statute did not allow juveniles under 14 years old to waive a declination hearing.In a pro se statement of additional grounds for review, Ramos argued that his community placement term was too vague under State v. Broadaway,133 Wash.2d 118, 135–36, 942 P.2d 363(1997).The Court of Appeals rejected these arguments and affirmed.

¶ 4We again granted review and remanded the matter to the Court of Appeals for reconsideration in light of Broadaway.State v. Ramos,168 Wash.2d 1025, 230 P.3d 576(2010).On remand the Court of Appeals held that the term of community placement was too vague, and it thus remanded to the trial court to correct the judgment and sentence to state the exact term of community placement and specify any special conditions of placement.The Court of Appeals indicated in its opinion that resentencing was not required and that the trial court need only enter an order clarifying or amending the judgment and sentence.Ramos petitioned for this court's review.

¶ 5 A defendant has a constitutional right to be present at sentencing, including resentencing.State v. Rupe,108 Wash.2d 734, 743, 743 P.2d 210(1987).However, when a hearing on remand involves only a ministerial correction and no exercise of discretion, the defendant has no constitutional right to be present.SeeState v. Davenport,140 Wash.App. 925, 931–32, 167 P.3d 1221(2007).When a sentence is insufficiently specific about the period of community placement, remand for the ministerial task of expressly stating the correct period of community placement is usually all that is required.Broadaway,133 Wash.2d at 136, 942 P.2d 363.But this court in Broadaway also noted that resentencing with discretion would be proper when, for instance, the trial court was originally mistaken about the period of community supervision, making it necessary to allow the court to exercise its discretion and reconsider the length of the prison sentence in light of the correct community supervision term.Id.

[171 Wash.2d 49]¶ 6 Here, the...