IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON No. 84174-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MERLIN TODD MCNEAL HEMRIC
Appellant.
DÍAZ, J. — In April 2022, a jury convicted Merlin Todd McNeal Hemric of one
count of gross misdemeanor telephone harassment and two counts of gross
misdemeanor violation of court order. The court imposed three consecutive 364-
day jail sentences, one of which was suspended. Hemric appeals, complaining
the trial court mishandled or exceeded its authority in ordering consecutive terms.
Finding no error, we affirm.
I. BACKGROUND
Hemric married L.H. 1 in 2003. By 2016, L.H. sought a divorce due to
Hemric’s pattern of verbal abuse. This abuse included death threats against L.H.,
her children, and the children’s father. In May 2017, Hemric was convicted of two
1 We are using the victim’s initials to protect their privacy. No. 84174-2-I/2
felony offenses for crimes against L.H., stalking and telephone harassment.
Hemric was sentenced to a term of incarceration and the court entered a 10-year
no contact order, protecting L.H.
On December 22, 2019, L.H. received four calls from a blocked number. All
of the calls came in quick succession. L.H. answered one of the calls and
immediately recognized Hemric’s voice. During the call, Hemric threatened her,
including saying “you’re dead, b[—].” Hemric also called two of L.H.’s friends.
Hemric left a voicemail for one of the friends which included the phrase “watch
this.” The following day, L.H. contacted the police.
Hemric faced five charges, including felony telephone harassment, a lesser
included charge for gross misdemeanor telephone harassment, and three counts
of gross misdemeanor violation of court order. A jury trial began on April 5, 2022,
during which Hemric asserted a voluntary intoxication defense. On April 8, 2022,
the jury convicted Hemric of gross misdemeanor telephone harassment and two
counts of violation of court order.
On May 5, 2022, Hemric came before the court to be sentenced. The State
recommended all three counts be given the maximum 364-day sentence and be
served consecutively. They cited Hemric’s pattern of harassment and the need to
protect L.H. Hemric argued for therapeutic alternatives to prosecution or,
alternatively, a minimal term of incarceration where he would serve each sentence
concurrently. He cited his ongoing issues with alcohol, his mental health
challenges, and the care he provided his elderly mother.
2 No. 84174-2-I/3
During the hearing, Hemric objected to the State’s introduction of various
types of evidence, which he claimed had not been admitted at trial, was otherwise
not in the record, or had not been provided to defense counsel.
The court imposed three consecutive 364-day jail sentences, one of which
was suspended. Hemric appeals.
II. ANALYSIS
A. Concurrent and Consecutive Misdemeanor Sentencing
Hemric first claims that the trial court erred by not considering his argument
to run each of the sentences concurrently. We disagree.
The Sentencing Reform Act (“SRA”) generally requires a person convicted
of two or more offenses to serve their sentences concurrently. RCW
9.94A.589(1)(a). However, the SRA applies only to felony sentencing and does
not similarly restrict sentencing for misdemeanors. State v. Anderson, 151 Wn.
App. 396, 402, 212 P.3d 591 (2009). As a result, courts have discretion to impose
misdemeanor sentences consecutively. Wahleithner v. Thompson, 134 Wn. App.
931, 939, 143 P.3d 321 (2006). Outside of narrow constitutional or statutory limits,
a sentencing judge’s discretion over misdemeanors remains “largely unfettered.”
State v. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993).
As to one of the statutory limits, RCW 9.92.080 governs consecutive and
concurrent sentencing for gross misdemeanors. For a person “convicted of two or
more offenses which arise from a single act or omission, the sentences imposed
therefor shall run concurrently, unless the court, in pronouncing sentence,
expressly orders the service of said sentences to be consecutive.” RCW
3 No. 84174-2-I/4
9.92.080(2). Additionally, for convictions arising from “separate and distinct acts
or omissions . . . the sentences imposed therefor shall run consecutively, unless
the court, in pronouncing the second or other subsequent sentences, expressly
orders concurrent service thereof.” RCW 9.92.080(3). As such, the court has
broad authority to order consecutive or concurrent sentencing for misdemeanors.
The only requirement is that, where a court chooses to do so, it be done expressly.
Statutory construction is a question of law which we review de novo.
Postema v. Postema Enterprises Inc., 118 Wn. App. 185, 195, 72 P.3d 1122
(2003).
Here, Hemric was convicted of three gross misdemeanors including one
count of telephone harassment and two counts of violation of court order. He had
no felony convictions at this trial. As such, the SRA does not apply. Further, the
court expressly ordered that the sentences be served consecutively, both during
the sentencing hearing and in the judgment and sentence. As the orders were
express, the court complied with RCW 9.92.080.
Moreover, Hemric had the opportunity to argue for concurrent sentencing in
both his sentencing memorandum and during the sentencing hearing itself.
Despite this, Hemric claims that the court unlawfully disregarded his appeal for
concurrent sentences. However, Hemric does not cite to any authority that
requires a court to consider, on the record or in any specific way, an argument for
imposing concurrent sentences for misdemeanors. Where a party fails to provide
citation to support a legal argument, we assume counsel, like the court, has found
4 No. 84174-2-I/5
none. State v. Loos, 14 Wn. App. 2d 748, 758, 473 P.3d 1229 (2020) (citing State
v. Arredondo, 188 Wn.2d 244, 262, 394 P.3d 348 (2017)).
In short, courts have clear authority to order consecutive sentences for
gross misdemeanors and are not obligated to consider, on the record or otherwise,
every argument, including those advocating for a concurrent sentence, which
counsel make. As such, the court committed no error in exercising the broad
discretion it has in choosing between consecutive and concurrent misdemeanor
sentences, and in what it chose to consider in so deciding.
B. Factual findings and misdemeanor sentencing
Hemric next claims that the trial court erred in making numerous findings of
aggravating factors during sentencing. On January 25, 2023, Hemric himself also
submitted a Statement of Additional Grounds for Review (“SAG”), arguing that the
trial judge “admit[ted] on [the] record he allowed in inadmissible testimony” during
trial.
We disagree. First, the court was not required by law to make any findings
of any aggravating factors to impose its sentence. Second, the court in fact did
not make findings of any aggravating factors. Similarly, Hermic’s SAG
mischaracterized the court’s actions. 2
2 So framed, our analysis will focus on whether the court was required to find
aggravating factors in imposing the sentence it did, and whether as a matter of law it actually did so. Our analysis will not involve considering whether there would have been sufficient evidence to make such a finding. As such, this issue involves a question of law which we review de novo. Postema v. Postema Enterprises Inc., 118 Wn. App. 185, 195, 72 P.3d 1122 (2003). 5 No. 84174-2-I/6
The SRA requires courts to explicitly state their reasons for deviating from
a standard sentencing range in written findings of fact and conclusions of law.
RCW 9.94A.535. However, as discussed earlier, the SRA only applies to felonies,
not misdemeanors. Anderson, 151 Wn. App. at 402; see also 13B SETH A. FINE,
WASHINGTON PRACTICE: CRIMINAL LAW AND SENTENCING § 50:1 (3D ED. 2019) (In
misdemeanor sentencing, “courts retain broad discretion similar to that exercised
for felonies under the former indeterminate sentencing statutes.”). In fact, this
court has already rejected an argument that a trial court relied erroneously on
factual findings to impose consecutive misdemeanor sentences. State v. Harstad,
153 Wn. App. 10, 27, 218 P.3d 624 (2009). In doing so, we stated that a “trial court
has discretion to run misdemeanor sentences consecutively even though there are
no aggravating factors.” Id. (emphasis added).
Here, again, Hemric was convicted of only gross misdemeanors, no
felonies. Each gross misdemeanor individually complied with the 364-day limit set
by RCW 9.92.020, such that each sentence was within the statutorily maximum
term. Additionally, the court had clear authority under RCW 9.92.080 and Harstad
to order consecutive misdemeanor sentencing without finding any aggravating
factors. Thus, the court did not err by not makings findings, which it was not
required to make in the first place.
In response, Hemric cites to numerous instances where he alleges the court
“determined there were the equivalence of aggravating factors” during sentencing,
which he claims were unfounded. We disagree with his characterization of each
such statement. The trial court did not make findings of fact for any aggravating
6 No. 84174-2-I/7
factor or misstate the underlying facts, but instead was simply providing its
rationale for imposing the sentence it did, which is appropriate.
First, Hemric avers the court “faults [him] with ‘for the first time’ taking
responsibility for the crimes charged at the sentencing hearing[.]” Additionally, he
alleges the court was simultaneously “alluding here to [Hemric’s] prior convictions
. . . in contravention to double jeopardy[.]” This claim appears to be referencing
the court’s statements that “there was no acknowledgement at all of responsibility
until today from Mr. Hemric[.]” Hemric is mischaracterizing the court’s action. The
court was simply stating it did not believe the sincerity of Hemric’s statements of
remorse made at the hearing. At no point during this observation did the court
reference Hemric’s prior convictions. 3
Second, Hemric alleges that the court improperly noted his apparently
“proactive” measures to “call from a blocked number[.]” Relatedly, Hemric further
faults the court for improperly stating it was “unclear” whether Hemric was drunk
at the time of the phone calls. This appears to be referencing the fact that the calls
to L.H. and to one of her friends came from a blocked number, while calls to the
other friend did not. Based on these facts, the court stated that, “although he may
have been intoxicated, and it’s unclear whether he was or whether he wasn’t,
certainly didn’t impact his ability to take the affirmative action to try to hide his
identity[.]” Further, the court noted that Hemric was “hiding behind [his] alcohol,”
3 As to the allusion of a double jeopardy violation, passing treatment of an issue or
lack of reasoned argument are insufficient to merit judicial consideration. Joy v. Dep’t of Labor & Indus.,170 Wn. App. 614, 629, 285 P.3d 187 (2012) (citing West v. Thurston County,168 Wn. App. 162, 187, 275 P.3d 1200 (2012)). 7 No. 84174-2-I/8
as an “attempt to excuse as opposed to taking responsibility.” Rather than making
unfounded findings of fact, the court was merely stating it did not fully believe
Hemric’s intoxication defense, which the jury also apparently rejected. 4
Third, Hemric alleges the court improperly made a “further implication of
guilt” because of his mother’s comments at the hearing. This claim appears to be
referencing the court’s statement that “[Hemeric’s] mother’s comments were a
concern” as “perhaps that’s why [Hemric] take[s] the position . . . because
[Hemric’s] mother is blaming [L.H.] also.” The court was not finding that Hemric
was somehow “more guilty” following his mother’s statements. Rather, the court
simply was stating uncontroversially that he was found guilty because he called
L.H. “repeatedly in violation of the court order that told [him] not to do it.” Further,
the court correctly observed that L.H.’s alleged role in creating personal challenges
for Hemric was irrelevant. Otherwise, the court’s etiological statement, that
perhaps Hemric is focused on L.H.’s role because of his mother, is not a finding
giving rise to any error.
Fourth, Hemric alleges the court improperly considered hearsay evidence
during sentencing. Specifically, he claims that the court wrongly considered an
antiharassment order involving a corrections officer, to which Hemric “was not
given an opportunity to defend against.” This claim was factually incorrect because
4 Additionally, Hemric’s argues that the court’s alleged findings are unfounded
because “individual numbers can be blocked for long periods of time . . . thereby requiring no ‘proactive’ measures at the time of the calls.” Somewhat ironically, however, this claim is itself without a cite to the record of any kind. Arguments that are not supported by references to the record, meaningful analysis, or citation to pertinent authority need not be considered. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). 8 No. 84174-2-I/9
the antiharassment complaint was included in the State’s sentencing memo, giving
Hemric notice and an opportunity to respond to it before the sentencing hearing.
Additionally, this argument mischaracterizes the court’s actions. The court did not
indicate any reliance on this evidence during sentencing. On the contrary, the
court indicated it was appropriate for Hemric’s attorney to object to the evidence,
and otherwise did not reference the antiharassment order during his ruling.
Finally, Hermic’s SAG claims that “Judge Weiss admits on record he
allowed in inadmissible testimony, only by the state, into this trial.” Hemric appears
to be referring to an exchange between the court and his counsel, where the court
sustained an objection to testimony related to his belief about the children’s fear of
him. The court did not entertain a hearsay objection let alone “admit” it erred.
Instead, it found that L.H.’s testimony was partially irrelevant, but the defense failed
to object or move to strike at the time. Nonetheless, the court prohibited the State
from referencing that portion of L.H.’s testimony at closing argument. Again, as
his counsel has done, Hemric mischaracterizes the nature of the ruling.
C. Due process
Hemric next claims that the trial court violated his “due process” rights
during sentencing by considering evidence not admitted at trial, on the record, or
otherwise provided to defense counsel. Specifically, he claims that the court
improperly relied on statements and communications he made while in custody,
awaiting or after trial, to third parties. Additionally, Hemric objected at sentencing
to a white binder introduced by the prosecution, which was allegedly not provided
to defense counsel.
9 No. 84174-2-I/10
To the extent that his due process claim arises from a statutory basis, it
clearly fails. The SRA “places substantial constraints on this historical discretion
in felony sentencing[.]" Anderson, 151 Wn. App. at 402. However, the SRA does
not similarly restrict misdemeanors, meaning “trial courts have great discretion in
imposing sentences within the statutory limits for misdemeanors and gross
misdemeanors.” Id.
To the extent that his due process is based upon the constitution, we would
review such a challenge de novo. State v. Grenning, 142 Wn. App. 518, 544, 174
P.3d 706 (2008). Hemric, however, only in the most general way claims a due
process violation and does so without further elaboration or citations to authorities.
Passing treatment of an issue or lack of reasoned argument are insufficient to merit
judicial consideration. Joy v. Dep’t of Labor & Indus.,170 Wn. App. 614, 629, 285
P.3d 187 (2012). More poignantly, “As expressed by the Eighth Circuit, ‘naked
castings into the constitutional sea are not sufficient to command judicial
consideration and discussion.’” In Re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353
(1986), superseded on other grounds, (quoting United States v. Phillips, 433 F.2d
1364, 1366 (8th Cir. 1970)).
Hemric is also again simply factually incorrect. The court did not discuss or
otherwise indicate reliance on any of the information at issue beyond discussing
the inapplicability of the SRA. As such, there is no indication that the court relied
on this information when deciding its sentence. Further, the prosecution claimed,
without objection, that the binder had been provided electronically in the same
manner as regular discovery.
10 No. 84174-2-I/11
Finally, the defense never obtained a ruling from the trial court on its
complaints. By way of analogy, “[a] defendant who does not seek a final ruling on
a motion in limine after a court issues a tentative ruling waives any objection to the
exclusion of the evidence.” State v. Riker, 123 Wn.2d 351, 369, 869 P.2d 43
(1994); see also State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536 (1991)
(holding it is a “rule that, when a ruling on a motion in limine is tentative, any error
in admitting or excluding evidence is waived”).
D. Disproportionality
Hemric’s final claim is that the trial court imposed a disproportionate
sentence. We disagree; the consecutive sentences were not extraordinary or
disproportionate. As previously discussed, courts have wide discretion when
imposing consecutive misdemeanor sentences. Harstad, 153 Wn. App. at 27. As
such, the bar for showing disproportionality is exceedingly high for consecutive
misdemeanor sentences. Hamric falls well short of this bar.
A sentence may be cruel under article I, section 14 of our state constitution
if it is grossly disproportionate to the offense. State v. Reynolds, 21 Wn. App. 2d
179, 197, 505 P.3d 1174 (2022). “The proper inquiry under article I, section 14 is
the proportionality of the individual sentences.” Wahleithner, 134 Wn. App. at 938.
However, this court has examined the proportionality of the aggregate sentence
imposed for multiple convictions. Id.
Disproportionality is judged under the four Fain factors. Reynolds, 21 Wn.
App. 2d at 197. The four Fain factors for proportionality are (1) the nature of the
offense, (2) legislative purpose behind the sentencing statute, (3) punishment
11 No. 84174-2-I/12
imposed in other jurisdictions for the same offense; and (4) punishment imposed
in the same jurisdiction for the same offense. Id. (citing State v. Fain, 94 Wn.2d
387, 397, 617 P.2d 720 (1980)). Each of these are merely factors to consider and
no factor is dispositive. State v. Gimarelli, 105 Wn. App. 370, 380-81, 20 P.3d 430
(2001). Constitutional challenges to a trial court’s sentencing decision are
reviewed de novo. Grenning, 142 Wn. App. at 544.
As to the first factor (nature of the offense), courts consider whether the
crime caused or threatened injury to persons or property. Wahleithner, 134 Wn.
App. at 939. Hemric was convicted of telephone harassment, which applies to
those who threaten “to inflict injury on a person or property of the person called[.]”
RCW 9.61.230(1)(c). In this case, Hemric was convicted of violating a no contact
order originating from his 2017 felony convictions of telephone harassment and
stalking. Telephone harassment becomes a felony if it involves death threats.
RCW 9.61.230(2)(b). As such, Hemric’s crimes involved threatened injury to
others, meaning this factor does not weigh in his favor.
As to the second factor (legislative purpose behind the sentencing statute),
courts consider the statutes that authorize the relevant penalties. Wahleithner,
134 Wn. App. at 939. Telephone harassment and violation of a no contact order
are gross misdemeanors with a maximum penalty of 364 days in jail. RCW
9.92.020. As already discussed, trial courts enjoy broad discretion on sentences
for gross misdemeanors. Anderson, 151 Wn. App. at 402. Each of Hemric’s
individual offenses was sentenced within the 364-day limit for misdemeanors.
Additionally, the court ordered consecutive sentencing expressly in compliance
12 No. 84174-2-I/13
with RCW 9.92.080. In light of the broad deference the legislature has granted
courts on misdemeanor sentencing, no legislative purpose was contravened here.
As to the third factor (punishment received in other jurisdictions)
Washington courts compare the statutes underlying the sentence at issue with
analogous statues of jurisdictions outside of the state. Wahleithner, 134 Wn. App.
at 940. Hemric did not offer a comparison to other jurisdictions in his appeal.
However, telephone harassment and violation of a no contact order are both
misdemeanors in Oregon and California. ORS 166.090; Cal. Penal Code 653m.
Additionally, both states give their courts broad discretion in imposing consecutive
or concurrent sentences. ORS 137.123; In re Claude J., 217 Cal. App. 3d 760,
763, 266 Cal. Rptr. 99 (1990). As such, this factor does not weigh in Hemric’s
favor.
As to the final factor (punishment imposed in the same jurisdiction), courts
do a “comparison of sentencing for the current offense to the sentencing scheme
in Washington.” Wahleithner, 134 Wn. App. at 940-41. Disproportionality is not
shown merely because a judge imposed a sentence harsher than what another
judge might impose. Id. at 941. In fact, the ultimate sentence for gross
misdemeanors “may even exceed the standard range for a comparable felony.”
Anderson, 151 Wn. App. at 402. “Only on the very rare occasion when a
consecutive sentence is shockingly long has a court held cumulative sentences
cruel and unusual.” Wahleithner, 134 Wn. App. at 937 (emphasis added).
The Wahleithner court cited State v. Davis, a case from Arizona, as an
example of disproportionate consecutive sentencing. State v. Davis, 206 Ariz. 377,
13 No. 84174-2-I/14
79 P.3d 64 (2003). Davis was a 20-year-old man, with no past criminal record,
convicted of four counts of sexual offenses involving minors. Id. He was
sentenced to four consecutive 13-year sentences, for a total of 52 years in prison.
Id. The Arizona Supreme Court vacated the sentence, finding it to be
unconstitutionally disproportionate. Id.
In contrast, Wahleithner was convicted of three DUIs and hit-and-run, all
gross misdemeanors. Wahleithner, 134 Wn. App. at 935. He failed to comply with
his probationary treatment requirements, leading the court to revoke his
suspended sentence and to require he serve his remaining jailtime of 44 months.
Id. This court upheld the trial court in that case, finding the punishment
proportional. Id. at 942. This holding came despite Wahleithner compiling “charts
and graphs” comparing sentences between judges in the same county. Id. at 941.
Hemric, in contrast, lists eight somewhat random cases in support of his
disproportionality claim. A brief procedural description of each case is provided
without additional analysis or comparison to Hemric’s situation. Only one of the
cases, State v. Armendariz, 160 Wn.2d 106, 109, 156 P.3d 201 (2007), had some
similarity to Hemric’s case, as it involved a violation of a court order. However, as
held in Anderson, Hemric’s argument that his misdemeanor sentence is harsher
than a comparable felony is insufficient in itself to show disproportionality. 151
Wn. App. at 402. Further, as held in Wahleithner, an appellant cannot merely cite
to variations in sentencing decisions between cases to establish disproportionality;
the disparity must be “shocking.” 134 Wn. App. at 937. As such, Hemric failed to
14 No. 84174-2-I/15
reach the high bar for showing disproportionality in his sentence, which we note
suspended one of the three terms of confinement.
III. CONCLUSION
For the reasons stated above, we affirm.
WE CONCUR: