FILED JULY 18, 2019 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STATE OF WASHINGTON, ) ) No. 36429-1-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOSE ARON MADRIGAL, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Jose Aron Madrigal pleaded guilty in Adams County
to second degree assault and communication with a minor for immoral purposes. At the
sentencing hearing, defense counsel objected to the trial court’s consideration of
uncharged allegations of sexual abuse when the trial court rejected the prosecutor’s
recommended middle range sentences and instead imposed the high end of the standard
range for each offense. The court also sentenced Mr. Madrigal to a term of community
custody for the communication offense that, together with the term of confinement,
exceeded the 60-month statutory maximum for the crime. The State concedes both
errors. We vacate his sentence and remand for resentencing. No. 36429-1-III State v. Madrigal
FACTS AND PROCEDURE
On August 12, 2017, Mr. Madrigal attended a barbecue with family and friends at
the home of M-G, who had three children: 11-year-old girl G.R., 9-year-old boy N.R, and
7-year-old girl M.R. M-G.’s husband was a childhood friend of Mr. Madrigal, and the
barbecue was to celebrate the fact that Mr. Madrigal had recently returned to the area.
As the party progressed, most of the adults went to the backyard while the children
were put in bed. At some point, Mr. Madrigal came inside and went into the bedroom
shared by G.R. and M.R. G.R. later reported that she was awake and saw Mr. Madrigal
reach toward her breast, but withdraw and leave the room when her sister moved in her
sleep. She stated that he soon came back to the girls’ room, pulled down her sister’s
blankets, and put his hand down to her sister’s “‘bottom area’” for several minutes.
Clerk’s Papers (CP) at 217. He then left the room.
M-G came into the house to check on the children. She noticed that the night light
in N.R.’s bedroom was off—which was unusual—so she turned on the lights as she
entered his room. She then saw Mr. Madrigal lying on the bed next to N.R. Mr.
Madrigal’s pants were down and he had his erect penis in his hand. His other hand was
inside N.R.’s shorts. When she confronted Mr. Madrigal, he said he was just “chilling;”
N.R. complained that Mr. Madrigal was hurting his privates. CP at 217. Mr. Madrigal
then pulled up his pants and fled the house. N.R. later reported that Mr. Madrigal woke
2 No. 36429-1-III State v. Madrigal
him up and pulled on his privates. While touching him, Mr. Madrigal said, “‘[W]hat you
don’t love me?’” CP at 217.
Pursuant to plea negotiations, the State charged Mr. Madrigal by amended
information with second degree assault (intent to commit a felony) of N.R.
(RCW 9A.36.021(1)(e)), and communication with a minor (N.R.) for immoral purposes
(RCW 9.68A.090(2)). He entered his guilty plea on September 28, 2018.
At the sentencing hearing three weeks later, the prosecutor noted that with Mr.
Madrigal’s offender score of 9+, the standard range for the assault charge would be 63 to
84 months and the standard range for the communication charge would be 51 to 60
months. The prosecutor recommended a 70-month sentence for the assault conviction to
run concurrently with a 60-month sentence for the communication conviction. As the
prosecutor explained, the agreement between the parties reflected the evidentiary
problems with this case, due to N.R.’s and M-G’s sometimes conflicting statements to
investigators. Additionally, the prosecutor wished to protect N.R. from further
proceedings and to bring closure to the family, who approved the agreement.
The sentencing court referred to the presentence investigation report and noted
that the report recommended 83 months—near the top of the range for the assault
conviction—as well as 59 months for the communication conviction. As the prosecutor
explained, that was the recommendation of the Department of Corrections (DOC), not the
State. Defense counsel stated that he had read the presentence report and that there were
3 No. 36429-1-III State v. Madrigal
“a lot of statements or facts in there that we do not agree with.” Report of Proceedings
(RP) at 27.
In its oral ruling, the sentencing court began by stating that it had just been looking
at the presentence report and it indicated that Mr. Madrigal had admitted during a
juvenile polygraph examination interview that he had been sexually abusing victims since
the age of eight years old.1 The court concluded from this that he had been sexually
assaulting people for the past 26 years. Normally, the court stated, it would agree with
joint recommendations. But in this case, “the joint recommendation is not sufficient to—
to—for the conduct committed and for the defendant’s long history of re-offending and
he’s likely to re-offend in the future when he’s released.” RP at 35. The court decided to
impose the sentence recommended by the DOC in the presentence report: 83 months for
the assault conviction and 59 months for the communication conviction, to run
concurrently. Defense counsel then clarified that he did not agree to or stipulate to the
facts in the presentence report. The court responded, “Okay, duly noted then.” RP at 37.
Due to Mr. Madrigal’s prior rape adjudication, the communication with a minor
for immoral purposes conviction was a class C felony conviction. RCW 9.68A.090(2).
The statutory maximum for a class C felony is 60 months. RCW 9A.20.021(1)(c).
1 Apparently none of these alleged incidents of abuse resulted in charges. The record shows only the one sexual offense: a juvenile adjudication of first degree rape of a child, committed when Mr. Madrigal was 13 or 14 years old and sexually assaulted his nine-year-old half-sister.
4 No. 36429-1-III State v. Madrigal
Community custody for a sex offense is 36 months. RCW 9.94A.701(1)(a). The
prosecutor explained to the court that imposing a 36-month term of community custody
along with the 59-month incarceration would exceed the statutory maximum for the
communication offense.2 One option offered to the court was to impose only one month
of community custody. Another option was to impose the 36 months of community
custody and to add a notation to the DOC that the combined terms of incarceration and
community custody cannot exceed the statutory maximum. The court adopted the second
suggestion, imposed 36 months of community custody on the communication conviction,
and wrote the suggested notation on the judgment and sentence.
RIGHT TO APPEAL
Usually a party may not appeal a sentence within the standard range. See
RCW 9.94A.585(1); State v.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED JULY 18, 2019 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. 36429-1-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOSE ARON MADRIGAL, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Jose Aron Madrigal pleaded guilty in Adams County
to second degree assault and communication with a minor for immoral purposes. At the
sentencing hearing, defense counsel objected to the trial court’s consideration of
uncharged allegations of sexual abuse when the trial court rejected the prosecutor’s
recommended middle range sentences and instead imposed the high end of the standard
range for each offense. The court also sentenced Mr. Madrigal to a term of community
custody for the communication offense that, together with the term of confinement,
exceeded the 60-month statutory maximum for the crime. The State concedes both
errors. We vacate his sentence and remand for resentencing. No. 36429-1-III State v. Madrigal
FACTS AND PROCEDURE
On August 12, 2017, Mr. Madrigal attended a barbecue with family and friends at
the home of M-G, who had three children: 11-year-old girl G.R., 9-year-old boy N.R, and
7-year-old girl M.R. M-G.’s husband was a childhood friend of Mr. Madrigal, and the
barbecue was to celebrate the fact that Mr. Madrigal had recently returned to the area.
As the party progressed, most of the adults went to the backyard while the children
were put in bed. At some point, Mr. Madrigal came inside and went into the bedroom
shared by G.R. and M.R. G.R. later reported that she was awake and saw Mr. Madrigal
reach toward her breast, but withdraw and leave the room when her sister moved in her
sleep. She stated that he soon came back to the girls’ room, pulled down her sister’s
blankets, and put his hand down to her sister’s “‘bottom area’” for several minutes.
Clerk’s Papers (CP) at 217. He then left the room.
M-G came into the house to check on the children. She noticed that the night light
in N.R.’s bedroom was off—which was unusual—so she turned on the lights as she
entered his room. She then saw Mr. Madrigal lying on the bed next to N.R. Mr.
Madrigal’s pants were down and he had his erect penis in his hand. His other hand was
inside N.R.’s shorts. When she confronted Mr. Madrigal, he said he was just “chilling;”
N.R. complained that Mr. Madrigal was hurting his privates. CP at 217. Mr. Madrigal
then pulled up his pants and fled the house. N.R. later reported that Mr. Madrigal woke
2 No. 36429-1-III State v. Madrigal
him up and pulled on his privates. While touching him, Mr. Madrigal said, “‘[W]hat you
don’t love me?’” CP at 217.
Pursuant to plea negotiations, the State charged Mr. Madrigal by amended
information with second degree assault (intent to commit a felony) of N.R.
(RCW 9A.36.021(1)(e)), and communication with a minor (N.R.) for immoral purposes
(RCW 9.68A.090(2)). He entered his guilty plea on September 28, 2018.
At the sentencing hearing three weeks later, the prosecutor noted that with Mr.
Madrigal’s offender score of 9+, the standard range for the assault charge would be 63 to
84 months and the standard range for the communication charge would be 51 to 60
months. The prosecutor recommended a 70-month sentence for the assault conviction to
run concurrently with a 60-month sentence for the communication conviction. As the
prosecutor explained, the agreement between the parties reflected the evidentiary
problems with this case, due to N.R.’s and M-G’s sometimes conflicting statements to
investigators. Additionally, the prosecutor wished to protect N.R. from further
proceedings and to bring closure to the family, who approved the agreement.
The sentencing court referred to the presentence investigation report and noted
that the report recommended 83 months—near the top of the range for the assault
conviction—as well as 59 months for the communication conviction. As the prosecutor
explained, that was the recommendation of the Department of Corrections (DOC), not the
State. Defense counsel stated that he had read the presentence report and that there were
3 No. 36429-1-III State v. Madrigal
“a lot of statements or facts in there that we do not agree with.” Report of Proceedings
(RP) at 27.
In its oral ruling, the sentencing court began by stating that it had just been looking
at the presentence report and it indicated that Mr. Madrigal had admitted during a
juvenile polygraph examination interview that he had been sexually abusing victims since
the age of eight years old.1 The court concluded from this that he had been sexually
assaulting people for the past 26 years. Normally, the court stated, it would agree with
joint recommendations. But in this case, “the joint recommendation is not sufficient to—
to—for the conduct committed and for the defendant’s long history of re-offending and
he’s likely to re-offend in the future when he’s released.” RP at 35. The court decided to
impose the sentence recommended by the DOC in the presentence report: 83 months for
the assault conviction and 59 months for the communication conviction, to run
concurrently. Defense counsel then clarified that he did not agree to or stipulate to the
facts in the presentence report. The court responded, “Okay, duly noted then.” RP at 37.
Due to Mr. Madrigal’s prior rape adjudication, the communication with a minor
for immoral purposes conviction was a class C felony conviction. RCW 9.68A.090(2).
The statutory maximum for a class C felony is 60 months. RCW 9A.20.021(1)(c).
1 Apparently none of these alleged incidents of abuse resulted in charges. The record shows only the one sexual offense: a juvenile adjudication of first degree rape of a child, committed when Mr. Madrigal was 13 or 14 years old and sexually assaulted his nine-year-old half-sister.
4 No. 36429-1-III State v. Madrigal
Community custody for a sex offense is 36 months. RCW 9.94A.701(1)(a). The
prosecutor explained to the court that imposing a 36-month term of community custody
along with the 59-month incarceration would exceed the statutory maximum for the
communication offense.2 One option offered to the court was to impose only one month
of community custody. Another option was to impose the 36 months of community
custody and to add a notation to the DOC that the combined terms of incarceration and
community custody cannot exceed the statutory maximum. The court adopted the second
suggestion, imposed 36 months of community custody on the communication conviction,
and wrote the suggested notation on the judgment and sentence.
RIGHT TO APPEAL
Usually a party may not appeal a sentence within the standard range. See
RCW 9.94A.585(1); State v. Osman, 157 Wn.2d 474, 481, 139 P.3d 334 (2006). A
defendant may appeal a standard range sentence, however, if the sentencing court failed
to comply with a statutory procedural requirement or constitutional requirements.
Osman, 157 Wn.2d at 481-82. Mr. Madrigal is challenging his standard range sentence,
2 Community custody for a second degree assault conviction is only 18 months. RCW 9.94A.701(2). Accordingly, the court imposed 18 months of community custody for the assault. Because the statutory maximum for second degree assault, a class B felony (RCW 9A.36.021(2)(a)), is 120 months (RCW 9A.20.021(1)(b)), the 83-month term of incarceration for this conviction plus the 18 months of community custody did not exceed the statutory maximum.
5 No. 36429-1-III State v. Madrigal
but he argues that the trial court violated statutory requirements. Consequently, his
appeal is not prohibited under RCW 9.94A.585(1).
RELIANCE ON DISPUTED FACTS AT SENTENCING
In determining a standard range sentence, “the trial court may rely on no more
information than is admitted by the plea agreement, or admitted, acknowledged, or
proved in a trial or at the time of sentencing.” RCW 9.94A.530(2). Acknowledgement
includes failing to object to information in the presentence report. RCW 9.94A.530(2).
“Where the defendant disputes material facts, the court must either not consider the fact
or grant an evidentiary hearing on the point.” RCW 9.94A.530(2).
Mr. Madrigal contends the sentencing court impermissibly relied on disputed facts
that were in the presentence report, without holding an evidentiary hearing. The State
concedes on this issue. We agree. The trial judge repeatedly referred to the presentence
report at the sentencing hearing and specifically cited its information in his decision to
impose the high end of the standard range for the assault conviction. Defense counsel
objected that he did not agree to the truth of those facts; at that point, the court should
have conducted an evidentiary hearing. Mr. Madrigal is, therefore, entitled to remand for
a new sentencing hearing.
SENTENCE EXCEEDING THE STATUTORY MAXIMUM
Under RCW 9.94A.701(9), the trial court must reduce the term of community
custody whenever the term of confinement plus the term of community custody exceeds
6 No. 36429-1-III State v. Madrigal
the statutory maximum for the crime. The State correctly concedes that the trial court
here erred when it imposed terms of confinement and community custody that, when
combined, far exceeded the statutory maximum of second degree assault. The notation
on the judgment essentially transferred the determination of the proper term of
community custody to the DOC. Before RCW 9.94A.701(9) was enacted in July 2009
(formerly RCW 9.94A.701(8)), this notation, called the “Brooks notation,”3 was
appropriate to ensure that the defendant did not serve a combined term that exceeded the
statutory maximum. State v. Boyd, 174 Wn.2d 470, 472, 275 P.3d 321 (2012). Mr.
Madrigal, however, was sentenced after RCW 9.94A.701(9) became effective. Thus the
trial court, not the DOC, is required to reduce his term of community custody to comply
with RCW 9.94A.701(9). Id. at 473.
CONCLUSION
We agree with the parties that the trial court erred in relying on disputed facts
when it imposed a high end standard range sentence for the second degree assault
conviction and in imposing a sentence that exceeded the statutory maximum for the
communication with a minor for immoral purposes conviction. Consequently, we vacate
Mr. Madrigal’s sentence and remand for a resentencing hearing.
3 In re Pers. Restraint of Brooks, 166 Wn.2d 664, 211 P.3d 1023 (2009).
7 No. 36429-1-111 State v. Madrigal
Vacated and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
LA .....~ c.~- ~W\.\7 Lawrence-Berrey, C .J. , c.. ~. .
WE CONCUR:
{)7dA&Jw~ );=· Siddoway, J. Fearing, J.