State Of Washington v. Sandra D. Weller & Jeffrey Weller , 197 Wash. App. 731 ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
January 31, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48056-5-II
Respondent, Consolidated with
No. 48106-5-II
v.
SANDRA DOREEN WELLER, aka
SANDRA GRAF; JEFFREY WAYNE
WELLER,
PART PUBLISHED OPINION
Appellants.
WORSWICK, J. — Sandra and Jeffrey1 Weller appeal their exceptional sentences
following a resentencing hearing. In the published portion of this opinion, we hold that the
sentencing court did not exceed its statutory authority by imposing no-contact orders of 45 and
30 years on Sandra and Jeffrey, respectively. In the unpublished portion of this opinion we
consider and reject the Wellers’ arguments regarding the sentencing court’s imposition of
exceptional sentences, the denial of the Wellers’ request for discovery material, and the denial of
Sandra’s request for new counsel at resentencing. We affirm.
1
Because the co-appellants have the same last name, we refer to them by first name for clarity.
We intend no disrespect.
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FACTS
Following a jury trial, Sandra and Jeffrey were convicted of several felony crimes
involving abuse of their children. Sandra was convicted of four counts of second degree assault
and one count of unlawful imprisonment. Jeffrey was convicted of five counts of second degree
assault, one count of unlawful imprisonment, and one count of third degree assault of a child.
All counts were domestic violence offenses. The jury found the Wellers’ conduct manifested
deliberate cruelty to the victims. The jury also found the offenses were part of an ongoing
pattern of abuse. Based on the jury’s finding of the two aggravators, Sandra and Jeffrey were
sentenced to exceptional sentences of 20 years and 20 years plus one year, respectively.
The Wellers appealed their convictions and sentences. In State v. Weller, 185 Wash. App.
913, 931, 344 P.3d 695, review denied, 183 Wash. 2d 1010 (2015) we affirmed their convictions,
but reversed the jury’s finding of the ongoing pattern of abuse aggravating factor and remanded
for resentencing.
At the resentencing hearing, the sentencing court imposed exceptional sentences on
Sandra and Jeffrey of 20 years based on the jury’s finding that the offenses manifested deliberate
cruelty. Sandra’s four counts of second degree assault and one count of unlawful imprisonment
ran consecutively to each other. Jeffrey’s sentence included two counts of second degree assault
running consecutively to each other and to three additional counts of second degree assault, one
count of unlawful imprisonment, and one count of third degree assault, which ran concurrently.
The sentencing court imposed no-contact orders between Sandra and the victims for 45
years, and between Jeffrey and the victims for 30 years. Sandra requested that the sentencing
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court impose a 10-year no-contact order. The sentencing court denied Sandra’s request,
explaining that the victims requested a no-contact order and did not desire any contact, but noted
that in the future the victims could request a modification if they wanted to.
ANALYSIS
The Wellers argue that the sentencing court exceeded its statutory authority by imposing
no-contact orders in excess of the maximum penalty for their most serious offense. We disagree.
A sentencing court may impose crime-related prohibitions, including no-contact
provisions, when sentencing an offender for a felony conviction. State v. Armendariz, 160
Wash. 2d 106, 119, 156 P.3d 201 (2007); former RCW 9.94A.505(8) (2010). We review a
sentencing court’s imposition of crime-related prohibitions for abuse of discretion. State v.
Warren, 165 Wash. 2d 17, 32, 195 P.3d 940 (2008). However, the key question here is whether the
duration of the crime-related prohibition exceeded the sentencing court’s statutory authority.
Consequently, we review this issue de novo. See State v. France, 176 Wash. App. 463, 469, 308
P.3d 812 (2013).
Generally, the crime-related prohibition may not be for a period of time longer than the
statutory maximum sentence for the crime. Warren, 165 Wash. 2d at 32. However, when imposing
an exceptional sentence the court has discretion to sentence defendants to the statutory maximum
of each individual crime and run multiple convictions consecutively.2 See State v. Cubias, 155
2
We recognize that this discretion is not unlimited. For instance, an exceptional sentence may
be reversed because it is clearly excessive.
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Wn.2d 549, 556, 120 P.3d 929 (2005); RCW 9.94A.589(1)(a). In such a situation, the total
maximum allowable sentence exceeds the statutory maximum for each individual conviction.
The Wellers contend that the duration of the no-contact orders exceeded the sentencing
court’s authority. However, the jury’s finding of an aggravating factor triggered the sentencing
court’s statutory authority to impose exceptional sentences on the Wellers. See RCW 9.94A.535,
.589. The sentencing court issued exceptional sentences by imposing standard range sentences
for each individual conviction and running them consecutively. So, while a single conviction of
second degree assault (the Wellers’ most serious crime) has a statutory maximum sentence of 10
years, the statutory maximum for the exceptional sentences at issue here is equal to the sum total
of the statutory maximums for the consecutively run convictions.
Because Sandra was convicted of four counts of second degree assault (10 year
maximum/count) and one count of unlawful imprisonment (5 year maximum), and the
sentencing court ran all five sentences consecutively, the maximum allowable exceptional
sentence was 45 years. Jeffrey’s sentence included two counts of second degree assault running
consecutively to each other and to three other counts of second degree assault, one count of
unlawful imprisonment, and one count of third degree assault, which ran concurrently, for a total
maximum allowable exceptional sentence of 30 years. Thus, the sentencing court did not exceed
its statutory authority by imposing the no-contact orders against Sandra for 45 years and against
Jeffrey for 30 years.
In each of their SAGs, Sandra and Jeffrey also argue that the lengthy no-contact orders
violate their constitutional right to parent. In re Pers. Restraint of Rainey, 168 Wash. 2d 367, 377,
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229 P.3d 686 (2010). “A defendant’s fundamental rights limit the sentencing court’s ability to
impose sentencing conditions.” Rainey, 168 Wash. 2d at 377. The Wellers’ argument is meritless
because their parental rights to the parties protected by the no-contact order have been
terminated. See In re Interest of E.J.W., No. 47545-6-II, slip op. at 3 n.1 (Wash. Ct. App. July
26, 2016) (unpublished), http://www.courts.wa.gov/opinions. Consequently, their fundamental
right to parent is not implicated.
We affirm.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
ADDITIONAL FACTS
At the resentencing hearing, Sandra requested a new attorney. Sandra told the sentencing
court that her counsel was prejudiced against her, was ineffective, and refused to communicate
with her. Sandra’s defense counsel explained that he had reviewed the materials from the
prosecution and the court, the court of appeals’ opinion, evidence, and case law. He also
explained that he had met with Sandra once in court and spoken to her a few times on the phone.
After inquiring into Sandra’s counsel’s qualifications, the sentencing court denied Sandra’s
request for new counsel.
Sandra and Jeffrey both argued for a reduction in their original sentences based on our
prior opinion striking one of the two aggravating factors. Nonetheless, the sentencing court
imposed exceptional sentences on Sandra and Jeffrey of 240 months based on the jury’s finding
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that the offenses manifested deliberate cruelty. The sentencing court entered findings of fact and
conclusions of law for the imposition of the exceptional sentences, noting that the jury’s finding
of deliberate cruelty was supported by evidence admissible at trial, and as such the court had the
authority to order exceptional sentences.
At the end of the resentencing hearing, the Wellers both requested copies of the police
reports and other discovery, citing CrR 4.7. The State objected, arguing the Wellers were not
entitled to copies of discovery given the status of the case, and suggested the Wellers file a
public records request for such documents. The sentencing court denied the Wellers’ requests.
ADDITIONAL ANALYSIS
II. JUDICIAL FACT FINDING
The Wellers argue that the sentencing court violated their Sixth and Fourteenth
Amendment rights to a jury determination of all facts by imposing exceptional sentences based
on judicial fact finding. Sandra and Jeffrey urge us to reconsider our earlier decision “in the
interests of justice” pursuant to RAP 2.5(c)(2). Br. of Appellant (S.W.) at 9; Br. of Appellant
(J.W.) at 5. Because our previous decision was correct, we decline to readdress the issue.
An exceptional sentence may be imposed if the sentencing court finds there are
“substantial and compelling” reasons to go outside the standard range. RCW 9.94A.535. An
exceptional sentence above the standard range must be based on a statutorily recognized
aggravating factor. RCW 9.94A.535(2), (3). A sentencing court may not impose an exceptional
sentence based on judicial fact finding. Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004). Whether an aggravating factor exists is a factual question for
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jury determination. RCW 9.94A.535, .537(6). The sentencing court must enter written findings
of fact and conclusions of law if it imposes an exceptional sentence. RCW 9.94A.535.
Here, the jury unanimously found that Sandra and Jeffrey’s conduct during the
commission of their offenses manifested deliberate cruelty to the victims beyond a reasonable
doubt, as required by RCW 9.94A.537. In its findings of fact and conclusions of law, the
sentencing court recognized the jury’s special verdict and outlined the trial testimony to
demonstrate that the jury’s finding of deliberate cruelty was supported by the evidence. The
sentencing court’s findings and conclusions are not “judicial fact-finding” as argued by the
Wellers. Rather, the sentencing court was complying with the requirements of RCW 9.94A.535
and .537. Thus, we hold that the Weller’s argument that the sentencing court engaged in
improper fact finding fails.
III. DISCOVERY REQUESTS
The Wellers argue that the court erred by denying their requests for redacted copies of
discovery materials pursuant to CrR 4.7.3 Because CrR 4.7 applies to “procedures prior to trial,”
we disagree.
A trial court’s discovery decision will not be disturbed on appeal absent a manifest abuse
of discretion. State v. Pawlyk, 115 Wash. 2d 457, 470-71, 800 P.2d 338 (1990). An abuse of
discretion occurs when a trial court’s decision is manifestly unreasonable or based upon
untenable grounds or reasons. State v. Powell, 126 Wash. 2d 244, 258, 893 P.2d 615 (1995). CrR
4.7 applies to “procedures prior to trial.” We interpret court rules the same way we interpret
3
Sandra also makes this argument in her SAG.
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statutes giving effect to the plain language. State v. Otton, 185 Wash. 2d 673, 681, 374 P.3d 1108
(2016). The purpose behind discovery disclosure is to protect against surprise that might
prejudice the defense. State v. Barry, 184 Wash. App. 790, 796, 339 P.3d 200 (2014).
Here, the Wellers did not request copies of discovery materials until the very end of the
resentencing hearing. The sentencing court denied their request given the status of the case at
that time. The Wellers’ trial and sentencings had concluded. Because CrR 4.7 applies to
procedures before trial, CrR 4.7 did not apply. Therefore, the sentencing court did not
manifestly abuse its discretion by denying their request.
IV. REQUEST FOR NEW COUNSEL
Sandra also argues that the sentencing court abused its discretion by denying her request
for new counsel at resentencing. We disagree.
“A criminal defendant who is dissatisfied with appointed counsel must show good cause
to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a
complete breakdown in communication between the attorney and the defendant.” State v.
Stenson, 132 Wash. 2d 668, 734, 940 P.2d 1239 (1997). Importantly, an attorney-client conflict
may justify granting a substitution motion only when the defendant and counsel “are so at odds
as to prevent presentation of an adequate defense.” Stenson, 132 Wash. 2d at 734. The right to
choose one’s counsel does not permit a defendant to unduly delay the proceedings. State v.
Aguirre, 168 Wash. 2d 350, 365, 229 P.3d 669 (2010).
We review a trial court’s refusal to appoint new counsel for an abuse of discretion. State
v. Lindsey, 177 Wash. App. 233, 248, 311 P.3d 61 (2013). A trial court abuses its discretion when
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its decision is manifestly unreasonable or based on untenable grounds. Lindsey, 177 Wash. App. at
248-49. A decision is based on untenable grounds if it rests on facts unsupported in the record or
was reached by applying the wrong legal standard. Lindsey, 177 Wash. App. at 249. When
reviewing a trial court’s refusal to appoint new counsel, we consider (1) the extent of the
conflict, (2) the adequacy of the trial court’s inquiry, and (3) the timeliness of the motion.
Lindsey, 177 Wash. App. at 249.
None of these factors show an abuse of discretion here. Sandra’s counsel and Sandra
gave contradictory accounts of their working relationship to the court. Sandra contended that her
counsel was severely prejudiced against her and refused to communicate with her. She claimed
he had screamed at her, told her he did not want to represent her, and told her “there is no game
plan.” Verbatim Report of Proceedings (VRP) at 7. Contrastingly, Sandra’s counsel explained
that since he had been appointed to Sandra’s case he had prepared for the resentencing hearing
by reviewing the case materials and relevant case law, and had met with Sandra in court and
spoken to her a couple of times on the phone and once in the jail. Sandra’s counsel told the
sentencing court that he was prepared for resentencing and felt “very comfortable in [his]
abilities to handle this matter and represent her accordingly.” VRP at 4.
The sentencing court heard from both Sandra and her counsel as to the alleged conflict,
and inquired as to counsel’s ability to represent Sandra. The sentencing court explained that
Sandra’s counsel was appointed as the most qualified available to represent her, and noted that
“this had been quite an extended period of time, and I think we do need to move ahead with it.”
VRP 6.
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The sentencing court listened to Sandra’s request for new counsel, evaluated the reasons
she wanted new counsel, stated its own evaluation of Sandra’s counsel’s competence and ability
to represent Sandra, and considered that a late substitution of counsel would delay the scheduled
resentencing hearing. Thus, in light of the Lindsey factors above, we hold that the sentencing
court did not abuse its discretion in denying Sandra’s motion for new counsel.
V. APPELLATE COSTS
Jeffry filed a supplemental brief requesting that, if the State substantially prevails in this
appeal, we decline to impose appellate costs on him because he claims he is indigent. The State
did not respond. We exercise our discretion and decline to impose appellate costs.
Under former RCW 10.73.160(1) (1995), we have broad discretion whether to grant or
deny appellate costs to the prevailing party. State v. Nolan, 141 Wash. 2d 620, 626, 8 P.3d 300
(2000); State v. Sinclair, 192 Wash. App. 380, 388, 367 P.3d 612 (2016). Ability to pay is an
important factor in the exercise of that discretion, although it is not the only relevant factor.
Sinclair, 192 Wash. App. at 389.
It appears that Jeffrey does not have the present ability to pay appellate costs, and it is
questionable whether he will have the future ability to pay. The sentencing court found Jeffrey
indigent at trial, and counsel was appointed to represent Jeffrey on appeal. There are no facts in
the record and the State does not provide any argument to support a conclusion that Jeffrey’s
indigent status is likely to change. RAP 15.2(f).
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Under the specific circumstances of this case, we decline to impose appellate costs on
Jeffrey. 4
We affirm.
Worswick, J.
We concur:
Maxa, A.C.J.
Sutton, J.
4
Sandra did not submit a supplemental brief on the issue.
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