State v. Hunley

253 P.3d 448, 161 Wash. App. 919

• Court: Court of Appeals of Washington
• Decided: May 17, 2011
• Docket: No. 39676-9-II
• Status: Published

Opinions

Worswick, A.C.J.

f 1 — A jury found Monte Hunley guilty of attempting to elude a police vehicle. Hunley appeals, arguing (1) that defense counsel rendered ineffective assistance by failing to request a lesser included offense instruction for reckless driving and (2) that provisions of the Sentencing Reform Act¹ (SRA) unconstitutionally relieve the State of its burden of proof at sentencing. Holding that reckless driving is not a lesser included offense in attempting to elude a police vehicle and that the challenged SRA provisions violate due process, we affirm Hunley’s conviction and remand for resentencing, allowing the State an opportunity to prove the defendant’s criminal history.

FACTS

¶2 On April 18, 2009, Washington State Trooper Ben Blankenship was working stationary radar duty off of Highway 12. He was in full uniform in a marked police car equipped with a light bar and siren. A black Mitsubishi Eclipse with a male driver sped past, and Trooper Blankenship used radar to measure its speed as 87 miles per hour in a 55-mile per hour zone. Trooper Blankenship followed the Eclipse, activating his lights and sirens. The Eclipse did not stop but turned onto a two lane “rural residential” road with a posted speed limit of 30 miles per hour. Verbatim Report of Proceedings (June 30, 2009) at 10. Trooper Blankenship estimated that the Eclipse was traveling at 70 miles per hour along this road.

¶3 The Eclipse sped through two stop signs and continued along two-lane roads, traveling approximately 60 miles per hour in 30- or 35-mile-per-hour zones. The Eclipse then turned off onto a dirt road. When Trooper Blankenship caught up to the Eclipse, it was abandoned. More officers arrived, including an officer with a tracking dog. The officers used the dog to track the car’s occupants, finding Hunley nearby just below a riverbank, along with a female who had been in the car with him. Hunley admitted to being the Eclipse’s driver.

¶4 The State charged Hunley with attempting to elude a police vehicle under RCW 46.61.024. The State also filed a special allegation under RCW 9.94A.834, alleging that one or more persons other than the defendant or the pursuing officer were threatened by Hunley’s attempt to elude a police vehicle. A jury found Hunley guilty of attempting to elude a police vehicle and returned a special verdict in the affirmative on the special allegation. At sentencing, the State offered a statement of prosecuting attorney listing Hunley’s prior convictions for sentencing purposes.² Hunley did not acknowledge his criminal history, but did not object to the statement or dispute its accuracy. Based on the statement of prosecuting attorney, the trial court calculated Hunley’s offender score as a five and sentenced Hunley to the top of that standard sentencing range.

ANALYSIS

I. Ineffective Assistance of Counsel

¶5 Hunley first argues that he was denied effective assistance of counsel at trial. He claims that because reckless driving is a lesser included offense in attempting to elude a police vehicle, defense counsel rendered ineffective assistance by failing to request a lesser included offense instruction. The State responds that pursuant to a 2003 amendment to RCW 46.61.024, reckless driving is no longer an included offense of attempting to elude a police vehicle. The State is correct.

¶6 The Sixth Amendment to the United States Constitution and article I, § 22 of the Washington State Constitution guarantee effective assistance of counsel. In re Pers. Restraint of Riley, 122 Wn.2d 772, 779, 863 P.2d 554 (1993); State v. Sardinia, 42 Wn. App. 533, 538, 713 P.2d 122 (1986). Denial of effective assistance is manifest error affecting a constitutional right, reviewable for the first time on appeal. See State v. Holley, 75 Wn. App. 191, 196-97, 876 P.2d 973 (1994); RAP 2.5(a). Appellate courts review ineffective assistance claims de novo. State v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006).

¶7 Washington follows the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001). In order to show that he received ineffective assistance of counsel, a defendant must show (1) that defense counsel’s conduct was deficient and (2) that the deficient performance resulted in prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Because both prongs must be met, a failure to show either prong will end the inquiry. See State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).

¶8 Under the Workman³ test, a party is entitled to a lesser included offense instruction where “(1) each element of the lesser offense is a necessary element of the greater offense charged (the legal prong) and (2) the evidence in the case supports an inference that only the lesser crime was committed (the factual prong).” State v. Meneses, 169 Wn.2d 586, 595, 238 P.3d 495 (2010); In re Pers. Restraint of Crace, 157 Wn. App. 81, 106, 236 P.3d 914 (2010), petition for review filed, No. 85131-0 (Wash. Oct. 1, 2010). Under the legal prong, an offense is not included in a crime when it is possible to commit the greater offense without committing the lesser offense. State v. Turner, 143 Wn.2d 715, 729, 23 P.3d 499 (2001) (quoting State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 (1973)). Under the factual prong, the evidence must support an inference that the defendant committed only the proposed lesser included offense. State v. Prado, 144 Wn. App. 227, 242, 181 P.3d 901 (2008) (quoting State v. Karp, 69 Wn. App. 369, 376, 848 P.2d 1304 (1993)).

¶9 Hunley’s claim cannot satisfy the legal prong of the Workman test because it is possible to attempt to elude a police vehicle without committing reckless driving. A person is guilty of reckless driving when that person drives a vehicle in willful or wanton disregard for the safety of persons or property. RCW 46.61.500(1). In contrast, a person is guilty of attempting to elude a police vehicle when (1) a uniformed police officer signals the person to stop by hand, voice, emergency light, or siren; (2) the police officer is in a vehicle equipped with lights and sirens; (3) the defendant willfully fails or refuses to immediately bring the vehicle to a stop after being signaled to stop; and (4) the defendant drives his or her vehicle in a reckless manner. See RCW 46.61.024(1).

¶10 It is well settled that “in a reckless manner” means “ ‘driving in a rash or heedless manner, indifferent to the consequences.’ ” State v. Roggenkamp, 153 Wn.2d 614, 621-22, 106 P.3d 196 (2005) (quoting State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960)). This is a lower mental state than the “willful or wanton” mental state required for reckless driving. State v. Ridgley, 141 Wn. App. 771, 782, 174 P.3d 105 (2007). Because one can drive “in a reckless manner” without “willful or wanton disregard for the safety of persons or property,” one can be guilty of attempting to elude a police vehicle without being guilty of reckless driving. Consequently, reckless driving is not a lesser included offense in attempting to elude a police vehicle and Hunley was not entitled to a lesser included offense instruction under the legal prong of the Workman test.⁴

¶11 Because Hunley was not entitled to a lesser included offense instruction, any claim to that effect at trial would have failed. Hunley has therefore failed to demonstrate that his trial counsel’s performance prejudiced him, and his ineffective assistance claim fails.

II. Burden of Proof at Sentencing

¶12 Hunley also contends the 2008 amendments to RCW 9.94A.500 and .530 violate due process.⁵ He argues that these sections of the SRA unconstitutionally relieve the State of its burden to prove prior convictions. We agree.

¶13 Our Supreme Court has consistently held that the State meets its constitutional burden to prove prior convictions at sentencing when it proves such convictions by a preponderance of the evidence. See State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). In Ford, the court held that the State’s “bare assertions, unsupported by evidence” are insufficient to prove a defendant’s prior convictions. 137 Wn.2d at 482. The Ford court held that under the basic principles of due process, the facts relied on in sentencing must have some basis in the record. 137 Wn.2d at 482 (quoting State v. Bresolin, 13 Wn. App. 386, 396, 534 P.2d 1394 (1975)). The court further held that the prosecutor’s assertions are neither facts nor evidence, but merely argument. Ford, 137 Wn.2d at 483 n.3. In its analysis, the court noted the critical importance of due process at sentencing, quoting the ABA Standards for Criminal Justice:

“The meaning of appropriate due process at sentencing is not ascertainable in strictly utilitarian terms. There is an important symbolic aspect to the requirement of due process. Our concept of the dignity of individuals and our respect for the law itself suffer when inadequate attention is given to a decision critically affecting the public interest, the interests of victims, and the interests of the persons being sentenced. Even if informal, seemingly casual, sentencing determinations reach the same results that would have been reached in more formal and regular proceedings, the manner of such proceedings does not entitle them to the respect that ought to attend this exercise of a fundamental state power to impose criminal sanctions.”

Ford, 137 Wn.2d at 484 (quoting Am. Bar Ass’n, ABA Standards for Criminal Justice: Sentencing std. 18-5.17, at 206 (3d ed. 1994)).

¶14 Based on this analysis, the court held:

The State does not meet its burden through bare assertions, unsupported by evidence. Nor does failure to object to such assertions relieve the State of its evidentiary obligations. To conclude otherwise would not only obviate the plain requirements of the SRA but would result in an unconstitutional shifting of the burden of proof to the defendant.

Ford, 137 Wn.2d at 482 (emphasis added). In other words, constitutional due process requires the State to meet its burden of proof at sentencing. The defendant’s silence is not constitutionally sufficient to meet this burden. The court has reaffirmed this rule in subsequent opinions, including In re Personal Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005); State v. Bergstrom, 162 Wn.2d 87, 93, 169 P.3d 816 (2007); and State v. Mendoza, 165 Wn.2d 913, 928-29, 205 P.3d 113 (2009).⁶

¶15 In 2008, the legislature amended RCW 9.94A.500(1) to add, “A criminal history summary relating to the defendant from the prosecuting authority ... shall be prima facie evidence of the existence and validity of the convictions listed therein.” Laws of 2008, ch. 231, § 2. And the legislature amended RCW 9.94A.530(2) to add that “not objecting to criminal history presented at the time of sentencing” constitutes acknowledgement of the criminal history. Laws of 2008, ch. 231, § 4. These amendments attempt to overrule Ford and its progeny by providing that a criminal history summary provides prima facie evidence of criminal history, and that failure to object to this summary constitutes acknowledgement. However, the legislature has no power to modify or impair a judicial interpretation of the constitution. Seattle Sch. Dist. No. 1 of King County v. State, 90 Wn.2d 476, 497, 585 P.2d 71 (1978). Ford was based on the constitutional principle of due process. 137 Wn.2d at 482. Thus, the 2008 amendments to RCW 9.94A.500(1) and RCW 9.94A.530(2) cannot constitutionally convert a prosecutor’s “bare assertions” into evidence or shift the burden of proof by treating the defendant’s silence as acknowledgement.

¶16 RCW 9.94A.500(1) is not facially unconstitutional. Rather, it is unconstitutional as applied when used to relieve the State of its burden of proof at sentencing. So long as a “criminal history summary” includes sufficient evidence of prior convictions, it does not violate due process for the State to use such a summary as prima facie evidence of criminal history. However, RCW 9.94A.530(2) is facially unconstitutional insofar as it provides that the defendant’s failure to object to the “bare assertions” in a criminal history summary constitutes acknowledgement. Ford and its progeny make clear that unless the defendant affirmatively acknowledges his criminal history, the State must meet its burden to prove prior convictions by presenting at least some evidence.

¶17 Here, the statement of prosecuting attorney is exactly the type of “bare assertion” rejected in Ford. The unsworn document simply lists the crimes that the prosecutor believes Hunley to have been convicted of. Under Ford, such allegations are not evidence. The trial court violated Hunley’s right to due process of law by sentencing him based on facts for which there was no evidence in the record. Therefore, we vacate Hunley’s sentence.

¶18 Hunley argues that he should be resentenced with an offender score of zero. We disagree.

¶19 On remand, the State may present evidence of Hunley’s past convictions. “When a defendant raises a specific objection at sentencing and the State fails to respond with evidence of the defendant’s prior convictions, then the State is held to the record as it existed at the sentencing hearing.” Mendoza, 165 Wn.2d at 930. “But where, as here, there is no objection at sentencing and the State consequently has not had an opportunity to put on its evidence, it is appropriate to allow additional evidence at sentencing.” Mendoza, 165 Wn.2d at 930. Moreover, this remedy is consistent with RCW 9.94A.530(2), which provides, “On remand for resentencing . . . the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented.”

¶20 Before concluding, we address some of the arguments made by the dissent. First, the dissent argues that Hunley waived any objection to his criminal history by failing to object. But we may consider manifest error affecting a constitutional right for the first time on appeal. RAP 2.5(a). Moreover, the dissent’s argument is directly contrary to Ford and we cannot accept it. See 137 Wn.2d at 477 (“In the context of sentencing, established case law holds that illegal or erroneous sentences may be challenged for the first time on appeal.”).

¶21 The dissent also argues that Ford was decided under the SRA and did not announce a constitutional rule. But the Supreme Court unambiguously stated that treating the defendant’s silence as acknowledgement would not only violate the SRA, but would also unconstitutionally shift the burden of proof.⁷ Ford, 137 Wn.2d at 482.

¶22 We acknowledge that the Ford court emphasized that it was placing “no additional burden on the State not already required under the SRA.” 137 Wn.2d at 482. But this does not lead to the conclusion that Ford is based only on the SRA and not on due process. The Ford court noted that in State v. Ammons, 105 Wn.2d 175, 186, 713 P.2d 719, 718 P.2d 796 (1986), the court “held that the use of a prior conviction as a basis for sentencing under the SRA is constitutionally permissible if the State proves the existence of the prior conviction by a preponderance of the evidence.” 137 Wn.2d at 479-80. The Ammons court based this holding on the rule that defendants have “a liberty interest which minimal due process protects” at sentencing. 105 Wn.2d at 186. We recognize that Ammons did not announce that preponderance of the evidence is the lowest evidentiary standard permissible at sentencing. But in holding the State to that standard, the Ford court was adhering not only to the statutory requirements of the SRA, but also to the constitutional requirement of minimal due process. We disagree with the dissent not as to the constitutionally required standard of evidence at sentencing, but rather as to the character of the State’s assertions of Hunley’s criminal history. In our view, the State provided no evidence whatsoever of Hunley’s criminal history, failing to satisfy even minimal due process.

¶23 Next, the dissent attempts to distinguish Ford on the grounds that there, the State relied on oral assertions as to the defendant’s criminal history. Here, in contrast, the State relied on a written summary of the defendant’s criminal history. But under Mendoza, this is a distinction without a difference. There, the State filed a statement of prosecuting attorney that listed the defendant’s criminal history, listing the sentencing court and the date of each crime. Mendoza, 165 Wn.2d at 917-18. The court held that such a statement was not evidence of criminal history. See Mendoza, 165 Wn.2d at 929. So too here, the unsworn, written criminal history summary was not evidence of Hunley’s criminal history.

¶24 We acknowledge that the legislature has amended RCW 9.94A.500(1) to provide that a criminal history summary shall be prima facie evidence of criminal history. But as noted above, under Ford, due process requires the State to offer some evidence of criminal history, and a prosecutor’s assertions are not evidence. Defendants have a constitutional right to be sentenced based on evidence in the record; the legislature cannot strip this right by passing a law that simply labels the State’s bare assertions as evidence.⁸

¶25 Finally, the dissent argues that the 2008 amendments to the SRA do not shift the burden of proof at sentencing because they do not require the defendant to provide evidence refuting the State’s asserted criminal history. Rather, the defendant need only object to the statement of criminal history. Because the defendant need not produce evidence, argues the dissent, the burden of proof is not shifted. This argument is logically sound, but again, based on the unambiguous language of Ford, we cannot agree. The Ford court held that relying on the defendant’s silence as acknowledgement “would not only obviate the plain requirements of the SRA but would result in an unconstitutional shifting of the burden of proof to the defendant.” 137 Wn.2d at 482. This is binding precedent, and in the absence of any Supreme Court directive to the contrary, we are compelled to follow it.

¶26 We affirm Hunley’s conviction but remand for resentencing.

Van Deren, J., concurs.

1 Ch. 9.94A RCW.

2 The statement of prosecuting attorney was an unsworn document setting forth Hunley’s alleged prior convictions, including their cause numbers. It listed the date of one out of six alleged offenses and did not list the date of any of the convictions.

3 State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).

4 Hunley cites State v. Argueta, 107 Wn. App. 532, 539, 27 P.3d 242 (2001) for the proposition that reckless driving is a lesser included offense in attempting to elude a police vehicle. But Argueta was decided under a prior version of RCW 46.61.024 that provided the mental element of “wanton or wilful disregard,” identical to reckless driving. Former RCW 46.61.024 (1983). The legislature amended the attempted eluding statute in 2003, replacing the “wanton or willful” mental state with “reckless manner” and abrogating Argueta’s holding. RCW 46.61.024(1).

5 Hunley also argues that these amendments violate the right to remain silent at sentencing. Because we find that the amendments violate due process by unconstitutionally shifting the burden of proof at sentencing, we do not address the right to remain silent.

6 We note that our Supreme Court recently reaffirmed Mendoza in State v. Weaver, 171 Wn.2d 256, 251 P.3d 876 (2011). Because Weaver is based on the pre-2008 SRA, it does not change our analysis below. See 171 Wn.2d at 259-60.

7 The dissent questions our reliance on this holding by pointing to the Ford court’s statement that “[a] criminal defendant is simply not obligated to disprove the State’s position, at least insofar as the State has failed to meet its primary burden of proof.” 137 Wn.2d at 482. This holding does not impugn our analysis because, in our view, the State failed to meet its primary burden of proof by failing to present any evidence of Hunley’s criminal history.

8 We further acknowledge that the Mendoza court noted, “No question has been raised in these cases about the constitutional limits of the legislature’s ability to define when an acknowledgment occurs.” 165 Wn.2d at 922 n.2. This fact does not impact our analysis here. In our view, Ford leaves room for only one conclusion as to the constitutionality of the 2008 amendment to RCW 9.94A.530(2).