State v. Van Buren

• Decision Date: 19 July 2002
• Docket Number: No. 27144-3-II.,27144-3-II.
• Citation: 112 Wash.App. 585,49 P.3d 966
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Tina Louise Van BUREN, Appellant.

49 P.3d 966

112 Wash.App. 585

STATE of Washington, Respondent, v. Tina Louise Van BUREN, Appellant.

No. 27144-3-II.

Court of Appeals of Washington, Division 2.

July 19, 2002.

Stephanie C. Cunningham, Seattle, for Appellant.

John C. Hillman, Deputy Prosecuting Attorney, Tacoma, for Respondent.

PART PUBLISHED OPINION

SEINFELD, J.

Tina Louise Van Buren appeals her 600-month exceptional sentence for the first degree murder of her former roommate. She argues that the prosecutor violated the plea agreement by participating in a court-ordered evidentiary hearing and by proposing findings of fact and conclusions of law that included aggravating factors the court did not address in its oral ruling. She also asserts that (1) the sentencing court violated the real facts doctrine; (2) the evidence does not support the court's findings of fact; (3) the facts do not justify the exceptional sentence; and (4) the sentence is clearly excessive. Finding no error, we affirm.

FACTS

In June 1998, the State charged Van Buren with first degree murder or, in the alternative, the felony murder of Holly Miller. Van Buren pleaded guilty and entered an Alford /Newton¹ plea.

As part of the plea agreement, the State agreed to recommend a standard mid-range sentence of 292 months. State v. Van Buren, 101 Wash.App. 206, 209, 2 P.3d 991, review denied, 142 Wash.2d 1015, 16 P.3d 1265 (2000). Instead, the sentencing court imposed a 400-month exceptional sentence relying in part on the presentence investigator's recommendation of a 666 month exceptional sentence. Van Buren, 101 Wash.App. at 208-209,2 P.3d 991. Van Buren appealed this sentence, and we found that the State had breached the plea agreement by advocating for an exceptional sentence. Van Buren, 101 Wash.App. at 217,2 P.3d 991.

On remand before a different judge, Van Buren again entered an Alford /Newton plea, and the State again agreed to recommend a mid-range sentence of 292 months. Van Buren stipulated to the use of the declaration for determination of probable cause as the factual basis for her guilty plea.

According to the declaration, on June 11, 1998, to June 12, 1998, Van Buren, her boyfriend Keith Ruch, and his nephew Clifford Collier "bound and beat" Van Buren's former friend and roommate Holly Miller at her residence. Clerk's Papers (CP) at 3. Following this beating, the three "drove [Miller] to a remote area in Mason County, [Washington], where they beat and stabbed her to death." CP at 3.

The initial beating apparently was in response to Miller contacting the police about some missing cash and compact disks. Soon after the police contacted Van Buren and Ruch about Miller's report, they, along with Collier, confronted Miller at her home.

Also according to the declaration, Ruch and Collier struck Miller; Collier then hit her with a baseball bat, causing her to lose consciousness. While Miller was unconscious, they tied her up, but she later regained consciousness, freed herself, confronted the defendants, and took refuge in the bathroom.

Van Buren reported that Ruch and Collier kicked in the bathroom door, renewed the assault, subdued and bound Miller, and placed her in the trunk of her car. Van Buren told detectives that she opened the trunk and put a pillow and blanket in the trunk and that she knew Miller was going to be killed.

The trio then drove Miller to a remote area where Ruch and Collier led her from the trunk. Van Buren said she heard Miller screaming, the screaming stopped, and Ruch and Collier later returned covered with blood. Ruch and Collier subsequently cleaned up and changed into clothes they had brought with them.

Van Buren later tried to sell Miller's car to a friend and admitted to the friend that they had murdered someone. An autopsy disclosed that Miller died from multiple blunt force trauma to her head and had sustained 11 knife wounds and one puncture wound to her neck and chest that contributed to her death.

In addition to the declaration for determination of probable cause, the second sentencing court also reviewed (1) a February 2001 presentence investigation report recommending a sentence of 333 months; (2) Van Buren's response to the sentencing report; and (3) letters from Miller's family. A letter from Miller's mother mentioned that Van Buren put on a pair of boots in order to stomp on Miller's head during the initial assault.² Neither the declaration of probable cause nor the February 2001 presentence investigation report contained this allegation.

The court asked counsel if they were aware of any factual basis for the allegation. Defense counsel stated that he was not, and the prosecutor said that he did not want to comment on matters outside the statement on plea of guilty and the other information already provided to the court:

Your Honor, in light of our recommendation and in light of the prior opinion by the Court of Appeals, I would prefer not to respond on matters that are outside the statement on plea of guilty and the other information that's provided to the Court at time of sentencing. So I would ask that the Court not require the State to disclose or State [sic] to the Court information that it has in its file or evidence that it might have presented at time of trial.

Report of Proceedings (RP) (3/6/2001) at 8.

The court stated that it understood the prosecutor's limitations but indicated that it still wanted any information relating to this allegation:

I understand that the State has certain limitations, but the Court doesn't have. I can consider anything that the Court wishes to consider in the way of police reports or presentence investigations, statements. And I would like to know whether there is any truth to the statement made in [Miller's mother's statement].

RP (3/6/2001) at 8-9. The prosecutor asked the court to not order him to present evidence on the issue and suggested that the court request briefing from the parties and ask the presentence investigator to address the issue:

Your Honor, I would make the request of the Court that the Court not order the State to present evidence on that matter at this time in light of our recommendation. If the Court is inclined to consider that matter apart from the statement that was written by Sandra Miller, I believe that we should be at recess and the Court should direct the parties to address that jointly and also direct the presentence writer to address the Court on that matter. But I would ask that the Court not require the State to go forward with evidence or information that it might have presented had this case gone to trial.

RP (3/6/2001) at 9.

The court then ordered the parties and the presentence investigator to provide any information related to the allegation:

THE COURT: Well, I think that that's an important enough issue that I'm going to do that. I'm going to recess this matter and I want the counsel and the State to provide any information that would give any support to that allegation and the mother's, Ms. Sandra Miller's statement, in her report that this defendant actually changed shoes and stomped, [sic] and would appear to be deliberate cruelty on this victim.

[Prosecutor]: Is the Court directing both attorneys to furnish the Court—

THE COURT: Both attorneys.

[Prosecutor]:—a brief on that issue?

THE COURT: You can provide a brief on that issue and I would like to have the testimony, if there is testimony, that would support those allegations.

[Prosecutor]: Your Honor, is the Court also directing that the [presentence investigation report] writer also respond on that issue?

THE COURT: And the [presentence investigation report] writer. I want all the information that's available that I can review before I sentence this defendant.

RP (3/6/2001) at 9-10.

The court said that it was primarily concerned with learning whether the allegations, which would indicate deliberate cruelty, were true:

I think it's very simple and clear what I'm concerned about. I want to know what are the real facts underlying the death of this victim, including issues that would bear on a deliberately cruel act, and I'm focusing on, as I've indicated, what this defendant allegedly did, if it's true, what is set forth in the document prepared by the victim's mother. And so I want the State to look at it. I want the defense to look at it. I want the presentence investigator to look at it. And I want any witnesses that are either going to negate or support those allegations here at the time I sentence this defendant.

RP (3/6/2001) at 11-12. The court told the prosecutor to present Van Buren's two co-defendants, Collier and Ruch, at the next hearing and ordered the prosecutor to prepare a transport order.

In a memorandum in response to the court's order, the prosecutor recommended a 292-month sentence, stated that he would participate in the evidentiary hearing only if the court ordered him to do so, and said that he would limit this participation to avoid compromising the plea agreement:

In light of the plea agreement and procedural history of this case, the state expects to limit its participation at the evidentiary hearing consistent with the requirements of its plea bargain. The state will conduct a limited examination of witnesses and respond to questions posed by the court.

CP at 64. The prosecutor also gave the court excerpts from transcribed interviews with Van Buren, Collier, and Ruch; a polygraph report and letter from a polygraph examiner related to the examination of Collier; a police report; the autopsy report; and some evidence lists.

According to these documents, Collier had stated that Van Buren was involved in the initial assault and had actively encouraged Ruch to murder Miller. Specifically, he stated that during the initial assault, which started at approximately 9:00 p.m., Van Buren or her sister broke a bottle of perfume over Miller's head; Van Buren hit and kicked Miller and then put on Ruch's discarded boots and "stomp[ed Miller's] head...