State of Washington v. Robert Martinez Jr.

• Court: Court of Appeals of Washington
• Decided: October 3, 2024
• Docket: 39823-4
• Status: Unpublished

Opinion

FILED OCTOBER 3, 2024 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STATE OF WASHINGTON, ) No. 39823-4-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ROBERT MARTINEZ JR., ) ) Appellant. )

LAWRENCE-BERREY, C.J. — Robert Martinez appeals three aspects of his

amended sentence—imposition of the victim penalty assessment (VPA), imposition of

Department of Corrections (DOC) supervision fees, and the condition that he not

consume alcohol during his term of community supervision. We remand for the trial

court to strike the VPA and the DOC supervision fees, but deny further relief. No. 39823-4-III State v. Martinez

FACTS

In 2012, the trial court sentenced Robert Martinez to life without the possibility of

parole under Washington’s “three strikes” law1 after a jury convicted him of his third

strike offense, second degree rape.2 State v. Martinez, No. 30732-8-III, slip op. at 3-4

(Wash. Ct. App. Dec. 26, 2013) (unpublished), https://www.courts.wa.gov/

opinions/pdf/307328.unp.pdf. We affirmed his convictions and sentence on direct

appeal. Id. at 12. We also dismissed his subsequent personal restraint petition. In re

Pers. Restraint of Martinez, No. 33246-2-III (Wash. Ct. App. Mar. 22, 2016)

(unpublished), https://www.courts.wa.gov/opinions/pdf/332462.unp.pdf.

In 2021, Mr. Martinez filed a motion to remit and vacate his legal financial

obligations (LFOs), which the trial court denied, and he appealed. State v. Martinez,

No. 38578-7-III, slip op. at 1 (Wash. Ct. App. Nov. 3, 2022) (unpublished), https://www.

courts.wa.gov/opinions/pdf/385787_unp.pdf. While his appeal was pending, Mr.

Martinez filed a statement of additional grounds for review, arguing his second degree

1 Generally referring to the Persistent Offender Accountability Act of the Sentencing Reform Act of 1981, chapter 9.94A RCW. Mr. Martinez’s three strike convictions (most serious offenses) included: (1) a 1993 second degree robbery conviction from California, (2) a 1999 first degree robbery conviction from Washington, and (3) the 2012 second degree rape conviction. No. 30732-8-III, slip op. at 4. 2 The underlying facts are documented in our prior opinion and are largely irrelevant to the issues raised in this appeal. Slip. op at 1-4. Only one underlying fact is relevant to the challenged condition prohibiting Mr. Martinez from consuming alcohol: Mr. Martinez committed his crimes while he was intoxicated. Id. at 1.

2 No. 39823-4-III State v. Martinez

robbery conviction was no longer classified as a strike offense due to a change in the law.

Id. The State agreed and moved this court to remand for resentencing. Id. We accepted

the State’s concession and remanded the case for resentencing. Id. at 2.

In June 2023, the trial court held a resentencing hearing. The court resentenced

Mr. Martinez to serve an indeterminate life sentence, with a 245-month minimum

determinate sentence. The court imposed a mandatory $500 VPA, required him to pay

DOC supervision fees, and prohibited him from consuming alcohol during the term of his

community supervision.

Mr. Martinez timely appeals.

ANALYSIS

LFOs

Mr. Martinez contends the VPA and DOC supervision fees must be struck from

his judgment and sentence due to recent changes in the law. The State concedes. We

accept the State’s concession and direct the sentencing court to strike both LFOs on

remand.

CONDITION PROHIBITING CONSUMPTION OF ALCOHOL

Mr. Martinez contends the trial court abused its discretion when it imposed the

condition prohibiting him from consuming alcohol while on community supervision. He

argues that because the court did not discuss the condition before imposing it, there is no

3 No. 39823-4-III State v. Martinez

record showing the court was aware of its discretion to impose the condition or that the

court exercised its discretion. We disagree.

Failure to object

As a threshold issue, the State argues that we should not review this challenge

because Mr. Martinez raises it for the first time on appeal. We disagree.

Appellate review normally does not extend to arguments not raised in the trial

court. See RAP 2.5(a). However, community custody conditions may be challenged for

the first time on appeal where the challenge involves a legal question that can be resolved

on the existing record, preenforcement. State v. Wallmuller, 194 Wn.2d 234, 238, 449

P.3d 619 (2019) (citing State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018); State

v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008)). Such a claim is ripe for review on

direct appeal if the issues raised are primarily legal, do not require further factual

development, and the challenged action is final. State v. Sanchez Valencia, 169 Wn.2d

782, 786, 239 P.3d 1059 (2010).

Here, Mr. Martinez did not object to this condition during the resentencing

hearing. However, his challenge involves a legal question that can be resolved on the

existing record. Thus, we exercise our discretion and review the challenged condition.

4 No. 39823-4-III State v. Martinez

Standard of review

We review community custody conditions for an abuse of discretion. Padilla, 190

Wn.2d at 677. A trial court abuses its discretion when it fails to exercise its discretion.

State v. Flieger, 91 Wn. App. 236, 242, 955 P.2d 872 (1998).

When a trial court sentences a person to community custody, it is required to

impose certain enumerated conditions of community custody and has discretion to

impose other conditions. RCW 9.94A.703(1)-(3). Under RCW 9.94A.703(3)(e), the

sentencing court had discretion to order an offender to “refrain from consuming alcohol.”

This condition could be imposed even if alcohol played no role in the underlying offense.

State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258 (2003).

Here, contrary to Mr. Martinez’s argument, the amended judgment and sentence

permits a reasonable inference that the trial court knowingly imposed the challenged

condition, thus evidencing an exercise of discretion. Unlike the DOC community

custody fee that typically is found in preprinted boilerplate language, the alcohol

prohibition is conspicuous in three places—following a box marked with a handwritten

“x” in paragraph 4.6, following a box marked with a handwritten “x” in Appendix A, and

following a box marked with a handwritten “x” in Appendix B.

5 No. 39823-4-III State v. Martinez

Remand to strike the VPA and the DOC supervision fees.

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.

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WE CONCUR:

~~,.::r. i Fearing, Pennell, J.