State of Washington v. Dean Lee Anders

Opinion

FILED MARCH 17, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 32114-2-111 Respondent, ) ) v. ) ) DEAN L. ANDERS, ) UNPUBLISHED OPINION ) Appellant. )

FEARING, J. - Dean Anders appeals his conviction for first degree assault with a

deadly weapon. He argues his public trial rights were violated when the parties

registered their respective preemptory challenges on paper. Anders also appeals his

sentence. He contends the trial court failed to entertain his request for an exceptional

sentence. Based on Supreme Court precedence, we reject Anders' arguments and

confirm his conviction and sentence.

FACTS

In March 2013, the accused Dean Anders and victim Richard Burt resided in a

homeless encampment in People's Park, Spokane. Anders occupied his tent with his

girlfriend, Jacqueline Stokes. Burt inhabited a nearby tent. John Hill lived in a tent one No. 32114-2-111 State v. Anders

hundred yards from Anders' and Burt's abodes.

The prosecution arises from a night attack on Richard Burt on March 6, 2013.

After the attack, Burt retreated to his tent and called the police the following morning.

Burt suffered multiple injuries from the assault, including a broken nose, fractured skull,

three spine fractures, two fractured ribs, head lacerations and bruising.

Dean Anders' codefendant, John Hill, testified at trial that he heard screaming

while at his campsite during the evening of March 6, 2013. He believed the screaming

emanated from Dangerous Debbie Do, who previously destroyed his tent in a drunken

rage. Before hearing the screams, Hill heard someone walking near his tent and

muttering: "I'm going to kill you, you mother fucker. I'm going to get you." 4 Verbatim

Report of Proceedings (VRP) (Oct. 28, 2013) at 697. Hill heard the horrible screams for

about five minutes and then perceived a person racing down a trail. The person

disappeared into the dark. During his trial testimony, Hill denied attacking and even

seeing Burt that night.

Dean Anders admitted he struck Richard Burt on March 6, 2013. He contended

that he acted in defense of himself and his girlfriend, Jacqueline Stokes. According to

Anders, he and Stokes slept in their tent until one o'clock in the morning when Richard

Burt woke him. Burt screamed and yelled outside Anders' tent door. Anders dressed.

Burt was drunk. Stokes, while inside the tent, cursed Burt. Burt, in return, said: "Fuck

you, bitch, I'm going to kill you" as he put his foot through the front door of the tent and

2 No. 32114-2-III State v. Anders

pulled on the top of the tent. 4 VRP (Oct. 28, 2013) at 618. Anders grew frightened and

wanted to protect Stokes. Anders believed Burt killed someone before, a belief that

contributed to Anders' fear. Burt had previously told Anders of the former's conviction

for voluntary manslaughter. Anders knew of Burt's reputation for aggressiveness.

According to Dean Anders, Richard Burt entered the tent and attacked Jacqueline

Stokes. In response, Anders struck Burt in the chest with his shoulder and knocked Burt

out of the tent. The two men then wrestled on the ground. Anders then remarked:

"Richard, go home. You're drunk." 4 VRP (Oct. 28, 2013) at 624. Burt fled into the

woods, where Anders heard Burt scream he was going to kill Anders and Stokes.

Richard Burt, while still yelling, returned to Dean Anders' tent. Anders exited the

tent. Burt lunged at Anders and cut Anders' arm. Anders concluded that Burt possessed

a knife. Anders grabbed a framing hammer to protect himself and Stokes. When Burt

charged a second time, Anders wrestled Burt to the ground and repeatedly struck Burt's

back with the hammer. When Burt reached for Anders, Anders struck him in the hands

with the hammer.

According to Dean Anders, during his struggle with Richard Burt, he grew winded

from asthma and suffered pain from his degenerative disc disease. Anders knew he must

quickly act to prevent Burt from overpowering him. Anders swung the hammer at Burt's

neck and knocked him down. Burt rose from the ground, and Anders, in fear for his life,

struck Burt's knees with the hammer. Burt remained on the ground, and Anders returned

3 No. 32114-2-111 State v. Anders

to his tent. During trial testimony, Anders denied striking Burt on the top of the head

with the hammer. He claimed Burt's head injuries resulted from Burt running into a tree.

PROCEDURE

The State of Washington charged Dean Anders and John Hill with first degree

assault with a deadly weapon, a framing hammer with a waffle head. The State tried

Anders and John Hill together. During the jury selection process, Anders and the State

exercised their peremptory challenges silently on a sheet of paper, which was filed after

trial with the court clerk.

The trial court instructed the jury on self-defense. The jury convicted Dean

Anders, but acquitted John Hill.

The trial court conducted a sentencing hearing, during which Richard Burt, Burt's

fiancee Carla Swift, and Dean Anders spoke. The State requested the court sentence

Anders for two hundred and forty months and impose $10,849.76 in restitution with the

option oflater adding to the restitution if Burt incurred more medical expenses. Burt

requested a sentence of one year for every time Anders hit him, which, according to the

State, would be a sentence of thirty-five years.

At the sentencing hearing, Dean Anders requested an exceptional reduced

sentence of eighty-four months. To support the low sentence, Anders offered two

reasons authorized under RCW 9.94A.535: (1) Anders acted in self-defense and (2) Burt

was the initial aggressor. At the conclusion of the hearing, the trial court stated:

4 i

I !I No. 32114-2-111 I ! State v. Anders

I, of course, have to honor the jury's decision. I will say that 1-1 don't know that I will ever know exactly what happened out there. And I know that you have claimed all along that this was self-self-defense. And I'm not necessarily going to comment on the facts here. But the law does allow a person to defend themselves. And, of course, if you were being attacked, if you feared for your safety or your life, you're allowed to defend yourself. The assault on Mr. Burt, though, was very, very significant and severe.

And even if you were in fear for your safety, in fear for your life, the-the injuries were so significant that it's difficult to fathom, you know, exactly what-what went on up there and what happened. And I-and I recall the state making a very-fairly significant case with regard to the- where the injuries occurred and-and that sort of a thing.

But again, this-this was a very significant assault. And I know the state is asking for the high end, and I know Mr. Burt would like more than the standard sentence range even allows. I'm going to impose 180 months, and that's about 15 years plus the enhancement of 24. There's no magic to my sentence here other than, Mr. Anders, I know you're-you're tearful. I can't tell if you're remorseful. You've apologized ... . . . but I don't really sense that you're taking real responsibility for it. And that's okay. You don't-you don't have to do that.

5 VRP (Nov. 15, 2013) at 859-62. The trial court sentenced Anders to a standard range

sentence of two hundred and four months' confinement and awarded $10,849.76 in

restitution.

The judgment and sentence entered by the trial court included a marked box next

to the statement: "The defendant waives any right to be present at any restitution hearing

(sign initials): _ _ _ _ _ _ _ _ _ _ _ ." Clerk's Papers (CP) at 49. Also, section

2.2 of the criminal history section of the judgment and sentence, below the list of Anders'

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prior criminal convictions, read: "*DV: Domestic Violence was pied and proved." CP at

44. This language also appeared in section 2.1 (current offenses). Section 2.3 of the

sentencing data section, following a box to enter information about the offender score and

seriousness level of the charged crime, stated:

*(F) Firearm, (D) Other deadly weapons, (V) VUCSA in a protected zone, (RPh) Robbery of a pharmacy, (VH) Vehicular Homicide, See RCW 46.61.520, (JP) Juvenile present, (CSG) criminal street gang involving minor, (AE) endangerment while attempting to elude, (ALF) assault law enforcement with firearm, RCW 9.94A.533(12), (P16) Passenger(s) under age 16.

CP at 45.

In a later order, the trial court amended the judgment and sentence to declare

$10,865.55 as the amount owing in restitution. The order noted: "no further restitution

will be ordered." CP at 75. The amended restitution amount is $15.79 more than the

original restitution amount. The amended order does nqt explain the added amount.

LAW AND ANALYSIS

Public Trial Right

On appeal, Dean Anders contends that the trial court erred in conducting the

peremptory challenge portion of the jury selection process mutely by paper.. The State

responds that selection of a jury by silent peremptory challenges does not implicate the

right to a public trial. Based on Supreme Court precedence, we hold the preemptory

challenge process did not violate Anders' public trial right.

6 No. 32114-2-111 State v. Anders

Public trial rights are bestowed by sections 10 and 22 of article I of the

Washington Constitution, which protect both the defendants' right to have the public

present, and the public's right to an open trial. State v. Love, 183 Wn.2d 598, 604-05,

354 P.3d 851 (2015),petitionfor cert.filed, 84 U.S.L.W. 3441 (U.S. Feb. 8, 2016) (No.

15-1007). A criminal defendant has a right to a "speedy public trial" under section 22,

and section 10 guarantees to the public that "[j]ustice in all cases shall be administered

openly." These provisions serve complementary and interdependent functions in

assuring the fairness of our judicial system. State v. Bone-Club, 128 Wn.2d 254, 259,

906 P.2d 325 (1995).

When a defendant asserts that the trial court breached his public trial right, we first

ask if the right attached to the discrete procedure during trial that the defendant

challenges. State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012). We next ask

whether the trial court closed the courtroom. State v. Love, 183 Wn.2d at 605. Finally,

we ask ifthe closure was justified. State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049

(2014).

State v. Love controls Dean Anders' public trial rights assignment of error. In

Love, the Washington high court noted that the public trial right attaches to jury selection,

including for cause and peremptory challenges, but the court held that written peremptory

challenges do not constitute a closure. Love, 183 Wn.2d at 607. The court reasoned:

7 No. 32114-2-111 State v. Anders

Although Love argues for a broad rule that all peremptory challenges must be spoken aloud, written peremptory challenges are consistent with the public trial right so long as they are filed in the public record. Spoken peremptory challenges certainly increase the transparency of jury selection, but there are still legitimate methods of challenging jurors in writing, like the practice here, that do not amount to a courtroom closure because they are made in open court, on the record, and subject to public scrutiny.

Love, 183 Wn.2d at 607.

Exceptional Sentence

Dean Anders contends that the trial court failed to consider on the record his

request for an exceptional sentence below the standard range. He asks for a resentencing.

The State responds that the trial court considered Anders' request for an exceptional

sentence. We agree with the State.

The trial court may impose an exceptional sentence below the standard range if it

finds mitigating circumstances by a preponderance of the evidence. RCW 9.94A.535(1).

These mitigating circumstances include:

(a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.

(c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.

RCW 9.94A.535(1). A failed self-defense claim may qualify as a mitigating factor under

RCW 9.94A.535(l)(c). State v. Pascal, 108 Wn.2d 125, 137, 736 P.2d 1065 (1987).

RCW 9.94A.585(1) declares: "A sentence within the standard sentence range ...

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for an offense shall not be appealed." Based on this statute, a sentence within the

standard range is not subject to appellate review. State v. Ammons, 105 Wn.2d 175, 182,

713 P.2d 719, 718 P.2d 796 (1986). The requirement that a trial court "set forth the

reasons for its decision in written findings of fact and conclusions of law" is limited by

the legislature to sentences outside the standard sentence range. RCW 9.94A.535. The

effect of a standard range sentence is to create a presumption that the court properly

exercised its discretion. Ammons, 105 Wn.2d at 183.

Despite this nearly uncompromising rule, a defendant may appeal the procedure

the trial court followed when imposing a sentence. State v. Knight, 176 Wn. App. 936,

957, 309 P.3d 776 (2013), review denied, 179 Wn.2d 1021, 318 P.3d 279 (2014). While

no defendant is entitled to an exceptional sentence below the standard range, every

defendant is entitled to ask the trial court to consider such a sentence and to have the

alternative actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1138

(2005). Failure to consider an exceptional sentence is reversible error. State v. Grayson,

154 Wn.2d at 342.

When a defendant has requested an exceptional sentence, our review is limited to

circumstances when the trial court refused to exercise discretion at all or relied on an

impermissible basis for refusing to impose an exceptional sentence below the standard

range. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). An

impermissible basis for declining a .request for an exceptional sentence includes race, sex,

9 No. 32114-2-III State v. Anders

or religion. Garcia-Martinez, 88 Wn. App. at 330. A trial court may consider such

subjective factors as problems related to a particular offender, the offender's social

situation, and the impact on the community when imposing a sentence. State v. Osman,

157 Wn.2d 474, 482, 139 P.3d 334 (2006). A court refuses to exercise its discretion if it

refuses categorically to impose an exceptional sentence below the standard range under

any circumstances. Garcia-Martinez, 88 Wn. App. at 330.

State v. Grayson, 154 Wn.2d 333 (2005), illustrates a trial court's categorical

refusal to impose an exceptional sentence. John Grayson requested a Drug Offender

Sentencing Alternative (DOSA) as part of his sentence for delivery of crack cocaine, but

the trial court denied the request stating:

The motion for a DOSA ... is going to be denied. And my main reason for denying [the DOSAJ is because of the fact that the State no longer has money available to treat people who go through a DOSA program. So I think in this case if I granted him a DOSA it would be merely to the effect of it cutting his sentence in half. I'm unwilling to do that for this purpose alone. There's no money available. He's not going to get any treatment; it's denied.

Grayson, 154 Wn.2d at 337 (emphasis in original) (alterations in original). Our Supreme

Court held that the trial court abused its discretion when it refused to impose a DOSA

sentence because it failed to consider a statutorily authorized sentencing scheme,

regardless of its suitability for the particular defendant.

Dean Anders' trial court did not categorically refuse to exercise its discretion by

10 No. 32114-2-111 State v. Anders

sentencing Anders within the standard range. The trial court gave no indication it would

deny all requests for exceptional sentences below the standard range. The court did not

rely on an impermissible basis in denying his request for an exceptional sentence. The

trial court listened to both parties and the victim, recognized that Dean Anders raised a

self-defense claim, identified the severity of the victim's injuries, conceded it cannot

determine the exact events, and imposed a standard range sentence. The trial court

emphasized the severity of the assault and the victim's injuries.

Dean Anders complains that the trial court impermissibly based its decision on his

disproportionate use of force in self-defense. Nevertheless, proportionality of force is not

an impermissible basis for denying an exceptional sentence.

Dean Anders argues that the trial court abused its discretion by not declaring on

the record its reasons for rejecting his exceptional sentence request. We disagree. The

trial court mentioned the intensity of Dean Anders' attack and the severity of Richard

Burt's injuries as reasons. The trial court was not required to dictate every factual and

legal justification for denying Anders' request for an exceptional sentence.

Dean Anders relies on State v. Hampton, 107 Wn.2d 403, 409, 728 P.2d 1049

(1986), which held that the trial court must give some reason on the record as to rejecting

a defendant'-s request so that this court may review the decision. Nevertheless, Hampton

dealt with bail forfeiture and not a discretionary decision to impose an exceptional

sentence. No Washington case specifically requires on the record dictation of the reasons

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for denying a request for an exceptional sentence. The legislature intended to prevent

excessive review of standard range sentences.

Scrivener Errors

Dean Anders contends that his judgment and sentence contains two scrivener

errors that should be corrected on remand. The first error is a checked box that waives

his right to be present at any restitution hearing. The State agrees that the judgment and

sentence incorrectly indicated that Anders waived his right to be present at restitution

hearings. The State argues that the assignment of error is moot because Anders attended

the hearing when the trial court imposed restitution and an order states that "no further

restitution will be ordered." CP at 7 5.

Appellate courts may remand a case solely for correction of a scrivener's error in a

judgment and sentence in order to ensure that the document accurately reflects the

sentence the trial court intended. State v. Healy, 157 Wn. App. 502, 516, 237 P.3d 360

(2010). Nevertheless, this court generally declines reviewing an assignment of error

when the issue presented is moot. In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828 (1983);

In re Det. ofR.R., 77 Wn. App. 795, 799, 895 P.2d 1 (1995). A case is moot when it

involves only abstract propositions or questions, the substantial questions in the trial

court no longer exist, or a court can no longer provide effective relief. Spokane Research

& Def Fund v. City ofSpokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005); State v.

Slattum, 173 Wn. App. 640, 647, 295 P.3d 788 (2013). We decline to remand for

12 No. 32114-2-111 State v. Anders

correction of the first scrivener's error because the error is moot.

The second alleged error is the statement within section 2.2 Criminal History,

which states "*DV: Domestic Violence was pled and proved." CP at 44. The State

claims that the presence of the statement regarding domestic violence is boilerplate

language. The State argues the judgment reflects no error because the trial court did not

declare that any of Anders' convictions involved domestic violence. There was no

checkmark by the entry. We agree with the State.

Dean Anders misunderstands the domestic violence designation. A review of the

judgment and sentence reveals that boilerplate portions of the form provide simple

abbreviations for common designations in different sections of the form. For example, in

section 2.3 Sentencing Data the form lists (F), (D), (V), (RPh) (VH), (JP), (CSG), (AE),

(ALF), and (P16). CP at 45. Each has a corresponding meaning so these abbreviations

may be used in the sentencing data section. The statement regarding domestic violence is

another recommended abbreviation tool for both sections 2.1 and 2.2. The judgment and

sentence does not contain a "DV" notation in any of the criminal history boxes and thus it

accurately indi.cates no DV present in Anders' criminal history.

CONCLUSION

We affirm the judgment against and sentence of Dean Anders.

A majority of the panel has determined this opjnion will not be printed in the

13 No. 32114-2-111 State v. Anders

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

.1&1f; ,:r· Fearing, A~.

WE CONCUR:

Pennell, J.