State Of Washington v. James Wiggin ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
1 No. 69120-1-1
o
Respondent, ceo
—i cr.
) DIVISION ONE
v. o
JAMES 0. WIGGIN, ) UNPUBLISHED OPINION CD
C/i i"'-"i
^ r—
Appellant. ) FILED: March 10, 2014
Becker, J. — Appellant James Wiggin challenges an order sentencing
him to a 12-month term of community custody. Because he was denied his right
of allocution, we reverse and remand for a hearing before a different judge.
On March 22, 2010, after a bench trial in front of Judge Gerald Knight,
Wiggin was convicted of one count of failing to register as a sex offender during
the period April 7 to May 30, 2009. The standard range for that offense is 0 to 12
months in jail. Judge Knight sentenced Wiggin to 30 days in jail with credit for
time served and 36 months of community custody. Wiggin appealed the
community custody term. The State conceded error. This court remanded the
case for resentencing. "We accept the State's concession that under the
applicable version of the statute, former RCW 9.94A.505(2)(b) (2008), where an
offender is sentenced to not more than one year of confinement, the term of
No. 69120-1-1/2
community custody should not have exceeded one year." State v. Wiggin. noted
at 161 Wn. App. 1020,2011 WL 1534508. at *4. review denied. 172Wn.2d 1019
(2011).
Following remand, the trial court made several attempts to resentence
Wiggin. Our disposition is based on the first attempt. On November 22, 2011,
the State presented ex parte a document titled "Agreed Order Modifying
Judgment and Sentence." The prosecutor later explained that he "handed up" an
agreed order under the mistaken belief that the court had no discretion to order
anything less than 12 months. Report of Proceedings (Feb. 17, 2012) at 2. This
purportedly agreed order, which imposed 12 months of community custody, was
not signed by defense counsel. In fact, it had never been seen by Wiggin or
defense counsel. Judge Richard Okrent, Judge Knight's successor, signed the
order. When Wiggin learned of this document several months later, he appealed.
The State agreed to a resentencing hearing. The State's memorandum
explaining the situation notes that Wiggin "argued that he was not given an
opportunity to be heard at the resentencing." Clerk's Papers at 354.
A resentencing hearing was set for February 17, 2012. Wiggin was
present and represented by counsel. Wiggin's position was that the trial court
should impose little or no community custody. He objected that he had been
transported from Department of Corrections custody to the jail without knowing
what the hearing would be about, he was unable to meaningfully confer with an
attorney before the hearing, and he was unable to obtain mental health records
to support his argument for mitigation. At the end of the hearing, Judge Okrent
No. 69120-1-1/3
once again imposed 12 months of community custody. Wiggin appealed. The
State agreed that Wiggin should have another resentencing hearing, where he
would have notice and the opportunity to confer with counsel before the hearing,
and where he would have the opportunity to present his mental health records as
mitigating evidence in support of his request that the term of community custody
be less than 12 months.
The most recent resentencing began with an initial hearing on June 8,
2012. At the hearing, Wiggin asked Judge Okrent to recuse himself because
"essentially the court has ruled on this matter twice, once through the original ex-
parte order and once through at the last hearing, and Mr. Wiggin feels that you
are predisposed towards - both times you've come to the conclusion of 12
months probation." The judge continued the hearing until the following week and
said he would take the issue of recusal under advisement in the meantime. "If I
decide to recuse myself, I'll do it by a written entry so you'll know ahead of time."
The continued hearing occurred on June 12, 2012. The record does not
include a written entry on the recusal issue. Wiggin asked for a ruling on the
recusal issue. Judge Okrent responded, "I'm not going to recuse myself as I
have already made a decision in this case. I will not recuse myself and the
record will reflect that. Let's proceed." The judge proceeded to hear argument
from defense counsel as to why, in Wiggin's particular circumstances, a 12-
month term of community custody would be too onerous. The judge began to
discuss the history of the case and noted that he had read the entire file,
including the supplemental materials concerning Wiggin's mental health history.
No. 69120-1-1/4
At this point, defense counsel interrupted and stated that Wiggin wanted to
address the court before it ruled. The judge then heard from Wiggin, who
reviewed the case in detail and argued that his situation warranted a term of
community custody at the bottom end of the range of 0 to 12 months. Judge
Okrent announced that he would adhere to the decision he had reached at the
hearing on February 17, 2012. "And I've heard the argument from Mr. Wiggin
and I appreciate his point of view and I think he's had his chance to explain to me
his rationale .... Nonetheless, he's similarly situated with this crime to others.
As a result, I'm going not to change my original sentence. It will be 12 months
concurrent with the other conviction in terms of community custody." (The "other
conviction" is a robbery conviction; Judge Okrent learned at the February 17
hearing that Wiggin was serving a prison sentence for the robbery, to be followed
by an 18-month term of community custody. Wiggin argued that he hoped to
prevail in an appeal of the robbery conviction).
Wiggin appeals from the 12-month term of community custody imposed on
June 12, 2012. He contends the trial court abused its discretion by denying his
motion to recuse. He asks this court to remand for resentencing by a different
judge.
Wiggin first argues that the trial court's denial of his request for recusal
was based on an erroneous understanding that Wiggin was trying to file an
untimely affidavit of prejudice.
Affidavits of prejudice permit a party to change judges once as a matter of
right. RCW 4.12.050(1); State v. Dominguez. 81 Wn. App. 325, 328, 914 P.2d
No. 69120-1-1/5
141 (1996). But an affidavit of prejudice must be filed and called to the attention
of the judge before he or she makes any ruling whatsoever in the case. RCW
4.12.050(1). No such deadline exists to bar motions for recusal. These two
methods by which a party may attempt to effect a change of judge—affidavit of
prejudice and request for recusal—are independent of each other and are
analyzed by different legal standards.
At the hearing on June 12, 2012, Judge Okrent announced that he was
"not going to recuse myself as I have already made a decision in this case."
While this statement can be construed as the result of confusing a recusal motion
with an affidavit of prejudice, it may have simply meant that the judge had
already decided not to recuse himself. Wiggin did not seek clarification in the
trial court. Under these circumstances, where the issue is raised for the first time
on appeal, we decline to speculate that Judge Okrent thought he was dealing
with an affidavit of prejudice. We presume that he knew he was denying a
request for recusal, and we will evaluate that decision accordingly.
A trial judge's decision whether to recuse him or herself is reviewed for an
abuse of discretion. State v. Leon. 133 Wn. App. 810, 812, 138 P.3d 159 (2006),
review denied. 159 Wn.2d 1022 (2007). "Ajudge shall disqualify himself or
herself in any proceeding in which the judge's impartiality might reasonably be
questioned." CJC Canon 2.11(A) (emphasis added). In determining whether
recusal is warranted, actual prejudice need not be proved; a mere suspicion of
partiality may be enough to warrant recusal. Sherman v. State. 128 Wn.2d 164,
205, 905 P.2d 355 (1995). The test for determining whether the judge's
No. 69120-1-1/6
impartiality might reasonably be questioned is an objective test and assumes that
a reasonable person knows and understands all relevant facts. Sherman. 128
Wn.2d at 206.
On June 8, 2012, Wiggin requested Judge Okrent to recuse himself on the
ground that the judge had already imposed a 12-month term twice, once through
the order presented ex parte by the State on November 22, 2011, and again at
the flawed hearing on February 17, 2012, where Wiggin had not been given the
opportunity to consult with counsel in advance or present mitigating evidence.
Wiggin contends that it was not possible for him to get a fair and unbiased
hearing before Judge Okrent under these circumstances because he considered
and acted upon information received ex parte.
Receipt of ex parte communication does not automatically require recusal
as a matter of law. Recusal is required where ex parte communication reveals or
implies a bias toward one party or shows that the judge's future rulings in the
case would be affected. State v. Davis. 175 Wn.2d 287, 307-08, 290 P.3d 43(2012), cert denied, 134 S. Ct. 62 (2013). Sherman is an illustrative case. In
Sherman, the University of Washington had terminated a doctor from a residency
program. The trial judge directed his extern to call the Washington Monitored
Treatment Program (WMTP) for general information to enable him to understand
and resolve a discovery dispute over documents that he was reviewing in
camera. When the parties discovered the ex parte communication, they
immediately moved for recusal. The judge refused. Sherman appealed. The
Washington Supreme Court held that the judge's violation of the rule against ex
No. 69120-1-1/7
parte communications required recusal. "By contacting the WMTP for
information about the monitoring process for chemically dependent physicians,
the trial judge may have inadvertently obtained information critical to a central
issue on remand, namely, whether Dr. Sherman's continued participation in the
WMTP is a reasonable accommodation of his chemical dependency. Given that
fact, a reasonable person might question his impartiality." Sherman. 128 Wn.2d
at 206. A similar result was reached in State v. Romano. 34 Wn. App. 567, 662
P.2d 406 (1983). In Romano, the trial judge called at least two friends of the
defendant to verify the income information the defendant testified to for the
purposes of sentencing and restitution. Because the ex parte contact created the
appearance of partiality and "clouded the proceeding," the sentencing order was
reversed and remanded for resentencing by another judge. Romano. 34 Wn.
App. at 569.
A case where recusal was not required is State v. Davis. 175 Wn.2d 287,
290 P.3d 43 (2012). In Davis, the trial judge asked a prosecutor he saw in the
courthouse hallway to prepare a new scheduling order, approve it, and give
defense counsel a copy for signature. Davis. 175 Wn.2d at 304-05. Defense
counsel moved that the trial judge recuse himself based on the alleged improper
contact. Davis. 175 Wn.2d at 305. The trial judge refused to recuse himself.
Davis appealed. The Supreme Court concluded that nothing in the judge's ex
parte communication revealed or implied a bias toward one party or that his
future rulings in the case would be affected.
The decision to accelerate trial, which the trial judge believed was
purely ministerial, was made well before the communication
No. 69120-1-1/8
occurred. Furthermore, the judge did not discuss any substantive
issue during the communication. While Davis correctly points out
that former Canon 3(A)(4) does not require the communication to
be substantive for a violation to occur, the content of the
communication is key in evaluating whether the judge appears
partial for purposes of the former Canon 3(D).
Davis. 175 Wn.2d at 307-08.
The present case is like Davis, not like Sherman or Romano. Judge
Okrent did not seek out information about the case, and the mislabeled "Agreed
Order" did not provide him with information. We conclude that Judge Okrent did
not abuse his discretion in refusing to recuse himself on the basis of the ex parte
communication.
However, Wiggin supports his request for remand and rehearing before a
different judge with the additional argument that Judge Okrent denied him the
statutory right of allocution. A trial court must allow allocution during the
sentencing hearing prior to the imposition of sentence. RCW 9.94A.110; In re
Pers. Restraint of Echeverria. 141 Wn.2d 323, 336, 6 P.3d 573 (2000).
When the right of allocution is inadvertently omitted until after the court
has announced the sentence it intends to impose, there is an appearance of
unfairness. The remedy is to send the defendant before a different judge for a
new sentencing hearing. State v. Aguilar-Rivera. 83 Wn. App. 199, 203, 920
P.2d 623 (1996).
A failure to allow allocution cannot be raised for the first time on appeal.
State v. Hughes. 154Wn.2d 118, 153, 110P.3d 192 (2005). overruled in part on
other grounds. Washington v. Recuenco. 548 U.S. 212, 126 S. Ct. 2546, 165 L.
Ed. 2d 466 (2006). Judge Okrent did permit Wiggin to allocute at the final
8
No. 69120-1-1/9
hearing on June 12, 2011, after being prompted by defense counsel. Wiggin's
argument is directed at November 11, 2011, the date on which Judge Okrent
signed the so-called "Agreed Order" that the State had presented ex parte. As
the State has recognized, Wiggin objected that he was not given an opportunity
to be heard before Judge Okrent signed that order resentencing Wiggin to 12
months of community custody.
Because there was no actual hearing, Wiggin's objection preserved for
appeal his argument that the court failed to allow allocution on November 11,
2011. Wiggin from that point on was in the same position as the defendant in
Aguilar-Rivera. where we said, "Although it is clear to us that the sentencing
judge sincerely tried to listen to allocution with an open mind, the judge's
oversight effectively left Aguilar-Rivera in the difficult position of asking the judge
to reconsider an already imposed-sentence." Aguilar-Rivera. 83 Wn. App. at
203. We conclude Wiggin is entitled to the remedy required by Aguilar-Rivera.
Reversed and remanded for resentencing before a different judge.
I j£cX