State Of Washington, V. James Robert Spitzer

• Court: Court of Appeals of Washington
• Decided: January 27, 2025
• Docket: 85943-9
• Status: Unpublished

Opinion

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

STATE OF WASHINGTON, No. 85943-9-I

Respondent,

v. UNPUBLISHED OPINION

SPITZER, JAMES ROBERT,

Appellant.

BOWMAN, J. — In 2021, a jury convicted James Robert Spitzer of first

degree rape and first degree kidnapping. The trial court sentenced him to a high-

end standard-range indeterminate sentence. Spitzer appealed, and we affirmed

the conviction but remanded for resentencing with a corrected offender score.

Spitzer now appeals his new sentence, arguing that the judge abused her

discretion by refusing to recuse herself and that the court failed to conduct a de

novo resentencing. Because the court did not abuse its discretion by denying

Spitzer’s motion for recusal or by again imposing a high-end indeterminate

sentence, we affirm.

FACTS

We recounted the facts underlying Spitzer’s conviction and sentence in an

unpublished opinion on his first appeal. See State v. Spitzer, No. 83546-7-I

(Wash. Ct. App. July 10, 2023) (unpublished), https://www.courts.wa.gov/

opinions/pdf/835467.pdf. We repeat only the facts relevant to this appeal. No. 85943-9-I/2

In June 2021, Spitzer attacked A.U. in the middle of the street just after

6:00 a.m. as she walked to work. He threatened to kill her, then led her to a

wooden area and violently raped her for about three hours. In December 2021, a

jury convicted Spitzer of first degree rape and first degree kidnapping.

At sentencing, the trial court determined that the rape and kidnapping

charges merged and dismissed the kidnapping charge. It then calculated

Spitzer’s offender score as 7.1 In calculating the offender score, it included a

prior Nevada burglary conviction. The court then sentenced Spitzer to a high-

end standard-range indeterminate sentence of 236 months to life in confinement.

Spitzer appealed. We affirmed the conviction but determined that

Spitzer’s Nevada burglary conviction was not comparable to burglary in

Washington. Spitzer, No. 83546-7-I, slip op. at 16-18. We remanded for

resentencing with a corrected offender score. Id. at 19.

The trial court resentenced Spitzer in October 2023. Before the

resentencing, Spitzer’s attorney moved for the judge to recuse herself:

Mr. Spitzer has asked me to ask Your Honor if Your Honor thinks it’s in the interest of justice for Your Honor to recuse yourself, given Your Honor gave Mr. Spitzer what he believes is an illegal sentence.

The judge refused. She told Spitzer that since it

was not brought to my attention at the time of the sentencing, I, frankly, was not aware of the illegality of the sentencing until the Court of Appeals spoke of that. So, I don’t believe that there is any basis for me to recuse on that ground.

The court then recalculated Spitzer’s offender score as 6 with a new

1 Based on an offender score of 7, the standard range was 178 to 236 months.

2 No. 85943-9-I/3

standard range of 162 to 216 months. The State recommended the court impose

a high-end indeterminate sentence of 216 months “based on the previous

reasons [it] filed and spoke of following the trial.” Spitzer asked the court to

impose a low-end indeterminate sentence of 162 months. He told the court, “I

had filed a sentencing memorandum previously articulating my reason for why I

think the Court should give the bottom of the range sentence. I will renew that

argument today.”

The court then resentenced Spitzer to a high-end indeterminate sentence

of 216 months to life. The court explained that

based upon the reasons that I previously gave, I believe the high end of this sentence is appropriate, given the nature of the offense and the facts that I heard at the trial. So, I am imposing the high end again, consistent with the earlier ruling, of 216 months.

Spitzer appeals.

ANALYSIS

Spitzer argues that the judge abused her discretion by failing to recuse

herself at the resentencing hearing. He also argues that the trial court erred by

failing to conduct a de novo resentencing.

1. Recusal

Spitzer argues that the resentencing judge should have recused herself

under the appearance of fairness doctrine. 2 We disagree.

2 Spitzer also argues that the trial court’s ruling amounts to manifest constitutional error under RAP 2.5(a)(3). The State asserts that the appearance of fairness doctrine is a nonconstitutional claim arising from Washington’s Code of Judicial Conduct. In any event, Spitzer’s scant mention of manifest constitutional error in his reply brief does not warrant review under that rule. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). We need not consider arguments unsupported by meaningful analysis or authority. Id.

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“Recusal lies within the discretion of the trial judge, and his or her decision

will not be disturbed without a clear showing of an abuse of discretion.” State v.

Perala, 132 Wn. App. 98, 111, 130 P.3d 852 (2006). A court abuses its

discretion when its decision is manifestly unreasonable or based on untenable

grounds. Id.

The appearance of fairness doctrine requires judges to recuse themselves

when they have bias against a party or when their impartiality can be questioned.

State v. Leon, 133 Wn. App. 810, 812, 138 P.3d 159 (2006). A proceeding

satisfies the appearance of fairness doctrine “only if a reasonably prudent and

disinterested person would conclude that all parties obtained a fair, impartial, and

neutral hearing.” Tatham v. Rogers, 170 Wn. App. 76, 96, 283 P.3d 583 (2012).

This is an objective test to determine “ ‘whether the judge’s impartiality might

reasonably be questioned.’ ” Id. (quoting Sherman v. State, 128 Wn.2d 164, 206,

905 P.2d 355 (1995)). Because we presume the trial court performs its functions

without bias, a party asserting a violation of the appearance of fairness doctrine

must show sufficient evidence of a judge’s bias; mere speculation is not enough.

Id.

Here, Spitzer asked the trial judge to recuse herself because she issued

an “illegal sentence” at the first sentencing. Spitzer did not say how issuing an

incorrect sentence would cause a reasonably prudent and disinterested person

to conclude that the judge would not be fair, impartial, and neutral at a

subsequent sentencing. Even so, the judge explained that she had no

opportunity to address the out-of-state conviction that rendered Spitzer’s offender

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score unlawful at the first sentencing because the parties did not bring it to her

attention. So, there was no reason to believe that she could not be fair and

impartial at the resentencing. This conclusion does not amount to an abuse of

discretion.

For the first time on appeal, Spitzer also argues the trial judge should have

recused herself based on statements she made at the first sentencing hearing.

At that hearing, the judge described Spitzer’s crime as “everyone’s worst

nightmare, to be abducted by a stranger on the street.”3 But Spitzer did not ask

the judge to recuse herself on that basis. And we necessarily “assess the

reasonableness of an exercise of discretion based on the totality of then-existing

facts.” State v. Smith, 3 Wn.3d 718, 722 n.1, 555 P.3d 850 (2024).

Spitzer argues he preserved the issue for appeal by moving for recusal

before the judge began the resentencing hearing. And that even if he did not

preserve the issue, “this Court often considers new arguments on appeal that

stem from issues that were discussed in the trial court.” But the cases Spitzer

cites in support of his argument are inapt. For example, State v. Kindell involved

the legal accuracy of a jury instruction—an issue that we review de novo. 181

3 This comment was similar to the prosecutor’s comments in closing argument, which Spitzer argued amounted to prosecutorial misconduct in his first appeal. The prosecutor told the jury that what happened to A.U. was “the personification of every person’s worst nightmare: That you will pass somebody on the street and they will decide to hurt you, not because of who you are, not because of what you believe or what you’ve said or what you’ve done, but simply because you’re there.” Spitzer, No. 83546-7-I, slip op. at 4. The prosecutor added that “ ‘the very personification of [that] nightmare . . . came true. That nightmare’s name is James Spitzer.’ ” Id. We determined on appeal that these comments amounted to improper argument. Id. at 11.

5 No. 85943-9-I/6

Wn. App. 844, 848-50, 326 P.3d 876 (2014). And Lunsford v. Saberhagen

Holdings, Inc. involved an appeal from a summary judgment ruling. 139 Wn.

App. 334, 337, 160 P.3d 1089 (2007), aff’d, 166 Wn.2d 264, 208 P.3d 1092

(2009). Again, an issue that we review de novo. Id. at 338.

As discussed above, we review a ruling on a motion to recuse for abuse of

discretion. And, based on the totality of then-existing circumstances, the trial

court did not abuse its discretion by denying Spitzer’s motion to recuse.

2. De Novo Resentencing

Spitzer also argues the trial court erred by failing to conduct a de novo

resentencing. Specifically, he asserts that the court did not exercise independent

discretion and instead “imposed the maximum sentence simply because it

imposed the maximum at the original sentencing.” We disagree.

We will reverse a sentencing court’s decision only if the court clearly

abused its discretion or misapplied the law. State v. Porter, 133 Wn.2d 177, 181,

942 P.2d 974 (1997). When an appellate court remands a case for resentencing

without any specific instructions or prohibitions, “the resentencing court should

consider sentencing de novo and entertain any relevant evidence that it could

have heard at the first sentencing. State v. Dunbar, 27 Wn. App. 2d 238, 246,

532 P.3d 652 (2023). The resentencing court is free to consider any matters

relevant to sentencing, even those that were not raised at the first sentencing,

including rehabilitation evidence. Id. at 248. The trial court may then impose

“the identical sentence or a greater or lesser sentence within its discretion.” Id. at

249.

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The court exercises its discretion “by conducting a full, adversarial

resentencing proceeding, giving both sides the opportunity to be heard.” State v.

Toney, 149 Wn. App. 787, 793, 205 P.3d 944 (2009). The “important

components of the [resentencing] process are that parties be allowed to present

their arguments and that the judge exercises their independent discretion in

sentencing.” State v. Vasquez, No. 102045-7, slip op. at 14 (Wash. Dec. 19,

2024), https://www.courts.wa.gov/opinions/pdf/1020457.pdf.

Here, the trial court conducted a full, adversarial resentencing, giving

Spitzer and the State an opportunity to be heard. The State asked for a high-end

sentence for the same reasons it presented at the first sentencing. Spitzer relied

on his previous sentencing memorandum and, again, asked for a low-end

sentence. The trial court considered the arguments and determined that based

on the reasons it gave at the first sentencing, it still “believe[d] the high end of

this sentence is appropriate, given the nature of the offense and the facts that [it]

heard at the trial.” The record shows that after considering the parties’

arguments, the trial court properly exercised its independent discretion and

imposed a sentence at the high-end of the standard range.

Still, citing Dunbar, Spitzer argues the court erred because it “never

addressed whether there was any possible rehabilitation evidence” and, pointing

to the court’s own words, viewed Spitzer’s resentencing as “simply . . . a matter

of math.” But Dunbar is inapt here.

In Dunbar, Division Three of our court remanded the defendant’s

convictions for resentencing. 27 Wn. App. 2d at 240-41. The resentencing judge

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was not the same judge that originally sentenced the defendant. Id. at 241-42.

At the resentencing hearing, the defendant submitted evidence of rehabilitation

that occurred after his first sentence. Id. at 241. Specifically, he showed

documentation of his participation in a treatment program, certificates of

completed prison programs, and related awards. Id. The trial court noted that

“ ‘what is before this Court is whether I should change the sentence’ ” imposed

by the previous judge. Id. at 241-42. It then explained that while the defendant

“ ‘has provided the Court with information about what he has done since being

incarcerated, . . . the Court cannot take that into consideration and shouldn’t take

that into consideration.’ ” Id. at 242.

Division Three reversed and remanded for another resentencing. Dunbar,

27 Wn. App. 2d at 250. It explained that a de novo sentencing means the court

can consider any matters relevant to sentencing, even those not raised at the

first sentencing hearing. Id. at 248. And that a resentencing judge “may not rely

on a previous court’s sentence determination and fail to conduct its own

independent review.” Id. at 249.

This case is different than Dunbar. Here, Spitzer did not offer any new

evidence or evidence of rehabilitation at his resentencing. Even so, he suggests

the court should have “addressed whether such evidence existed.” But a de

novo resentencing presents the opportunity for “the parties” to present all

relevant evidence. RCW 9.94A.530(2). Spitzer provides no support for his

argument that the court must affirmatively search for such evidence. So, we

presume he found none. See Carter v. Dep’t of Soc. & Health Servs., 26 Wn.

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App. 2d 299, 317, 526 P.3d 874 (2023) (When “a party cites no authorities

supporting its argument, we may assume that counsel searched diligently and

found none.”).

Nor does Spitzer show that the trial court failed to independently review

the information provided at his resentencing. Spitzer argues that the court’s

comment that “[t]his is simply now essentially a matter of math, given the fact

there’s just a new sentencing range,” shows that the court failed to exercise

independent discretion. But he takes the comment out of context. The trial court

made the remark while addressing Spitzer’s motion for recusal. The court ruled:

As I stated earlier, [the illegal sentence] issue was not brought before me at the time of sentencing previously. It has now been corrected. I don’t see any basis for recusal. This is simply now essentially a matter of math, given the fact there’s just a new sentencing range.

The court then gave both parties the opportunity to argue their sentencing

recommendations. The trial court’s “math” comment does not show that it

avoided exercising its discretion at resentencing.4

4 In a statement of additional authorities, Spitzer argues that Vasquez, No. 102045-7, supports his argument. We disagree. In Vasquez, the resentencing judge chose not to consider some of the proffered evidence, did not allow the defendant to make certain arguments, and stated he wanted to “ ‘honor’ ” the first sentencing judge’s decisions. Id., slip op. at 12-13. Our Supreme Court concluded that another resentencing was appropriate because “the court seemingly misunder[stood] its discretion.” Id. at 13-14. But here, the record shows that the resentencing court understood and exercised its discretion.

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Because we conclude that the court did not abuse its discretion by

denying Spitzer’s motion to recuse or by imposing a high-end standard-range

WE CONCUR: