State Of Washington, V. Jeremy Michael Santiago

• Court: Court of Appeals of Washington
• Decided: August 2, 2021
• Docket: 81809-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 81809-1-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) JEREMY MICHAEL SANTIAGO, ) ) Appellant. ) )

HAZELRIGG, J. — Jeremy M. Santiago pleaded guilty to one count of assault

in the fourth degree with a domestic violence designation and one count of unlawful

possession of a firearm in the first degree. The parties were not in agreement as

to a sentencing recommendation. After taking argument, the trial court imposed a

standard range sentence of 17 months’ incarceration on the felony count, followed

by 364 days’ jail, suspended for a period of 24 months, on the misdemeanor count.

Pursuant to the State’s request, the court ordered that the first 12 months of the

probation imposed on the misdemeanor would be supervised by the Department

of Correction (DOC). Santiago appeals, arguing that the State failed to establish

that his prior domestic violence convictions were pleaded prior to August 1, 2011

such that DOC supervision was statutorily authorized. We agree and remand to

the trial court for re-sentencing.

Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 81809-1-I/2

FACTS

After entering guilty pleas to one count of assault in the fourth degree-

domestic violence and one count of unlawful possession of a firearm in the first

degree, Jeremy Santiago stipulated to the accuracy of the State’s summary of his

criminal history which included prior convictions for the gross misdemeanor crimes

of assault in the fourth degree and violation of a protection order, each with a

domestic violence designation. The statement of criminal history submitted by the

State indicated that the two charges occurred in April 2011 and listed the date of

conviction as November 16, 2011.

Santiago’s plea agreement in the current case did not contain a joint

sentencing recommendation, so the parties argued their respective positions to the

court. The felony firearm charge to which Santiago agreed to plead guilty did not

qualify for community custody supervision. As such, the State sought 24 months

of probation on the gross misdemeanor, with at least a portion of that term under

DOC supervision.

After taking argument, the court imposed a standard range sentence of 17

months’ incarceration on the felony, followed by 364 days’ jail suspended for a

period of 24 months on the gross misdemeanor. The court ordered DOC to

supervise the first 12 months of probation, which was consistent with the State’s

recommendation. The court further imposed community custody conditions after

expressly finding the felony conviction did not qualify for community custody.

Santiago now appeals.

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ANALYSIS

Santiago argues for the first time on appeal that the trial court exceeded its

authority by sentencing him to DOC supervised probation on the gross

misdemeanor assault charge because it is not authorized under the Sentencing

Reform Act of 1981 (SRA).1 A claim of an illegal or erroneous sentence may be

raised for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d

678 (2008).2

“A trial court only possesses the power to impose sentences provided by

law.” In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). The

court may order supervision when imposing a suspended sentence. RCW

9.92.060. However, absent an express requirement under the SRA, the trial court

lacks authority to impose DOC supervision. RCW 9.94A.501(6). The SRA

requires DOC to supervise misdemeanor probation in certain specific instances.

RCW 9.94A.501(1). RCW 9.94A.501(1)(b) requires supervised probation for

certain repetitive offenses. The term “repetitive domestic violence offense”

includes numerous non-felony domestic violence offenses. See RCW

9.94A.030(42). Relevant to our review is that any domestic violence assault that

is not a felony or any domestic violence violation of a protection order or no-contact

order that is not a felony offense qualifies as a “repetitive domestic violence

offense.” RCW 9.94A.030(42)(a)(i), (ii), (iii).

1 Ch. 9.94A RCW. 2 Because the State does not challenge Santiago’s claim in this regard, we accept the apparent agreement of the parties that this issue is properly before us, without expressly ruling on the legality of the sentence.

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Santiago challenges the court’s imposition of DOC supervision for the first

12 months of his period of probation, arguing the State failed to establish that his

prior offenses rendered such supervision statutorily appropriate. The relevant

portion, as it relates to Santiago’s challenge, in RCW 9.94A.501(1)(b) states:

(i) A current conviction for a repetitive domestic violence offense where domestic violence has been pleaded and proven after Aug 1, 2011; and (ii) A prior conviction for a repetitive domestic violence offense or domestic violence felony offense where domestic violence has been pleaded and proven after August 1, 2011.

Santiago notes in briefing that “supervision is unauthorized unless the domestic

violence allegation was both ‘pleaded’—i.e., alleged in a charging document—and

‘proven’—i.e., found true by the fact finder–after August 1, 2011.” Here, the parties

agree that Santiago’s current conviction for assault in the fourth degree qualifies

as a repetitive domestic violence offense which was both pleaded and proved well

after August 2011. Further, Santiago agrees that his prior convictions for assault

in the fourth degree and violation of a no contact order are also repetitive offenses

and were proven on November 16, 2011 when the judgment was entered.

However, Santiago argues that the State failed to establish when those allegations

were pleaded. See State v. Sanchez, 60 Wn. App. 687, 695, 806 P.2d 782 (1991)

(“[T]he State has the burden of establishing the defendant’s criminal history by a

preponderance of the evidence.”).

There is nothing in the record to demonstrate when Santiago’s 2011

convictions were pleaded. If they were pleaded before August 1, 2011, DOC

supervision would not be proper here under the plain language of the statute. If

they were pleaded after that date, then Santiago’s challenge fails. The State

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attempts to circumvent the legislature’s requirements in RCW 9.94A.501 by

arguing that it is Santiago’s burden to establish that these domestic violence

allegations were pleaded prior to August 1, 2011. This argument is questionable

at best. The State is attempting to shift the burden to Santiago, ignoring the wealth

of case law clearly establishing that the burden of proving up criminal history for

purposes of sentencing lies squarely with the State. Sanchez, 60 Wn. App at 695;

State v. Ford, 137 Wn.2d 472, 479–82, 973 P.2d 452 (1999); State v. Harris, 148

Wn. App. 22, 30, 197 P.3d 1206 (2008); State v. Cate, 194 Wn.2d 909, 912–13,

453 P.3d 990 (2019). Further, this argument utterly ignores an individual’s

constitutional rights during sentencing proceedings. See State v. Hunley, 175

Wn.2d 901, 287 P.3d 584 (2012).

Because the record demonstrates that the State failed to prove by a

preponderance of the evidence that Santiago’s 2011 misdemeanor domestic

violence convictions were both pleaded and proved after August 1, 2011, we

cannot conclude that the sentencing condition of DOC supervision imposed here

was authorized by statute. Accordingly, we remand for re-sentencing so that the

trial court may analyze the State’s request for supervision under the requirements

of the statute. Santiago further notes that he was ordered to pay fees associated

with DOC supervision. Fees for supervision are permitted by statute. See RCW

9.94A.780(1). If the trial court determines on remand that supervision is not

authorized based on Santiago’s criminal history, he is entitled to a refund of any

fees he has paid to date.

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Remanded for re-sentencing.

WE CONCUR:

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