State v. Romano, 5658-5-II

• Citation: 662 P.2d 406,34 Wn.App. 567
• Decision Date: 27 April 1983
• Docket Number: No. 5658-5-II,5658-5-II
• Parties: The STATE of Washington, Respondent, v. Joseph L. ROMANO, Appellant.
• Court: Washington Court of Appeals

Page 567

34 Wn.App. 567

662 P.2d 406

The STATE of Washington, Respondent, v. Joseph L. ROMANO, Appellant.

No. 5658-5-II.

Court of Appeals of Washington, Division 2.

April 27, 1983.

Peter Mair, Seattle, for appellant.

Donald Herron, Pros. Atty., Michael R. Johnson, Deputy Pros. Atty., Tacoma, for respondent.

PETRICH, Chief Judge.

Defendant, Joseph L. Romano, appeals from the imposition of the maximum sentence on two counts of first degree theft on the ground that the sentencing judge's ex parte communications violated his due process rights by creating an appearance of unfairness. We agree and reverse and remand for resentencing.

On October 13, 1980, defendant entered a guilty plea to each of two counts of first degree theft. The theft involved more than $318,000 given to defendant by two Tacoma men for investment in an illegal business venture. At the trial judge's urging, defendant and the victims tried without success to reach a mutually acceptable agreement for restitution. Defendant testified that his earnings as a jewelry salesman were seasonal, so that any repayment plan would have to be adjusted to reflect the fact that the bulk of his yearly income was received during November and December. Prior to sentencing, the judge contacted at least two friends of his in the jewelry business to verify defendant's statements regarding his income. The fact of these ex parte contacts was not revealed to defendant until after the sentence was imposed.

In determining the proper sentence, a trial court is vested with broad discretion and can make whatever investigation it deems necessary or desirable. State v. Dainard, 85 Wash.2d 624, 626, 537 P.2d 760 (1975). However, the court should not conduct a personal investigation of the defendant and should avoid whenever possible receiving ex parte statements concerning the defendant. State v. Giebler, 22 Wash.App. 640, 643, 591 P.2d 465 (1979). Furthermore, except to a limited extent otherwise authorized by law, a judge may not initiate or consider ex parte communications concerning a pending proceeding. CJC 3(A)(4) ¹.

The State asserts that defendant was in no way prejudiced in that the judge's inquiries merely verified information provided by defendant himself. However, even where there is no actual bias, justice must satisfy the appearance of fairness. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). The law goes farther than requiring an impartial judge, it also requires that the judge appear to be impartial. Next in importance to rendering a righteous judgment, is that it be accomplished in such a manner that no reasonable question as to impartiality or fairness can be raised. State v. Madry, 8 Wash.App. 61, 70, 504 P.2d 1156 (1972).

A careful search of the record...